HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Deborah O’Brien
Applicant
-and-
William Osler Health System
Respondent
DECISION
Adjudicator: Alison Renton
Indexed as: O’Brien v. William Osler Health System
APPEARANCES
Deborah O’Brien, Applicant ) Self-represented )
William Osler Health System ) Kimberly Pepper, Counsel
1The applicant filed an Application under section 34 of the Human Rights Code, R.S.O. 1990, c. H. 19 on January 17, 2011 alleging discrimination in employment on the basis of disability and reprisal. The applicant, who worked as a registered nurse with the respondent, was terminated on January 13, 2011. During her employment, she was a bargaining unit employee and represented by Ontario Nurses’ Association (‘the union”).
2A Response was filed by the respondent and a number of individuals whom the respondent incorrectly believed were named as personal respondents to the Application. In the Response, the respondent requested that the Tribunal dismiss the Application because the applicant had, along with the union, signed a memorandum of agreement (“the agreement”) resolving all issues pertaining to her termination and her employment. Included within the agreement was a full and final release.
3The Tribunal sent correspondence to the parties, dated June 14, 2011, advising that it would schedule a teleconference hearing to hear the parties’ submissions on whether or not the Application should be dismissed because the applicant signed a release. A hearing was held on January 19, 2012 and both parties participated. The Tribunal heard the respondent’s submissions, followed by the applicant’s submissions.
4Prior to the hearing, the Tribunal received written submissions from the respondent as well as correspondence from the union. While the union is neither a respondent nor an intervenor, it provided information that it stated would constitute its evidence, if required, with respect to the meeting which resulted in the agreement. It denied that it coerced or intimidated the applicant into signing the agreement, claimed that the applicant did not seek the opportunity to review the agreement with external counsel, and stated that the applicant claimed to understand the terms of the agreement and did not disagree with them.
5During the hearing, the Tribunal confirmed that the respondents were William Osler Health System (“the respondent”) and Brampton Civic Hospital (“the hospital”), as identified in the Application, and that no personal respondents were named. The Tribunal asked Ms. Pepper if she was representing both the respondent and the hospital. Ms. Pepper stated, “I suppose the answer would be yes” and explained that the respondent is comprised of three different hospitals and that the hospital is not a separate legal entity from the respondent. As the applicant agreed with this statement, the Tribunal removed the hospital as a respondent such that the Application continued only against the respondent. The style of cause is amended accordingly.
6During her oral submissions, the applicant advised that she was reading from written submissions and requested to file them with the Tribunal. The Tribunal granted the applicant’s request on the condition that they also be delivered to the respondent’s counsel. During the hearing, the applicant emailed them to the Tribunal and to respondent counsel.
7During the hearing, the applicant alleged that during the January 27, 2011 meeting (“the settlement meeting”), the union told her that her termination would be reported to the College of Nurses (“the College”). The details about the applicant’s allegations on this point are set out below. The respondent requested an opportunity to respond to what it claimed were new allegations, which the Tribunal granted, and the respondent provided supplementary submissions to the applicant and the Tribunal dated January 24, 2012 (“the supplementary submissions”).
8On January 23, 2012, the applicant sent an email to the Tribunal and the respondent attaching a “Garnishee’s Statement” through the Ontario Superior Court of Justice with the respondent named as the garnishee. The statement is dated December 21, 2011 and signed by the respondent. The applicant states that she received it in her home mail on January 20, 2012. The respondent had written “terminated Jan. 13, 2011” under the section “I/WE DO NOT OWE and do not expect to owe to the debtor the amount set out in the Notice of Garnishment for the following reason(s)….” The applicant states that as per of the agreement, the respondent was required to change her employment record to say resignation instead of termination. The applicant requests that the Tribunal recognize this as a breach of the agreement.
9On January 25, 2012, the respondent sent an email to the Tribunal and the applicant explaining that the information on the Garnishee’s Statement was prepared by the respondent’s payroll department and that the word termination is used as a standard practice on garnishee’s statements regardless of the reason the employment relationship is ended. From the payroll department’s perspective, an employee’s status is either active (i.e. working) or inactive (i.e. terminated). The human resources/personnel file was amended at the time of the agreement to reflect resignation and there has been no breach of the agreement.
The Respondent’s Position
10The respondent submits that at the settlement meeting, the applicant, her union representatives and the respondent were present to discuss the applicant’s four outstanding grievances. Two of the grievances related to an alleged failure by the respondent to pay the applicant short-term disability benefits. One was about a warning and the final grievance was about her termination. At least two of the four grievances alleged a breach of the Code.
11The settlement meeting, the respondent submits, lasted several hours before a settlement in principle was reached. During the settlement meeting the respondent learned that the applicant had already filed the Application, although it had not yet received a copy of it, and a term of the agreement was that the applicant undertook to withdraw the Application. Another term was that the applicant would sign a full and final release of all claims related to her employment, including those under the Code. The agreement was signed by the respondent, the applicant and the union.
12The applicant, the respondent submits, had capacity, understood the nature of what she was signing, and did not sign the agreement under coercion, duress or economic duress. The respondent complied with its obligations under the terms of the agreement. The applicant accepted the monetary settlement and did not, subsequent to the agreement, indicate to the respondent that she wished to resile from it or that she needed further time to consider her options. The respondent submits that given the Application raises the same issues as those in the grievances and the release, the applicant is barred from proceeding further with her Application. The respondent requests that the Tribunal dismiss the Application.
13In its supplementary submissions, the respondent submits that its standard practice, “which is informed by the College’s expressed expectations”, is to report all terminations of registered nurses to the College irrespective of the reasons for termination. This reporting does not trigger an automatic suspension or revocation of the nurse’s licence.
14The respondent submits that a nurse’s licence is only affected if the College, upon receipt of the report, decides to take some action. Unless and until such action is taken by the College, the nurse’s licence remains intact and the nurse is able to work for another employer in the capacity of a registered nurse. There is no evidence that the applicant’s licence was in jeopardy as a result of her termination.
15Furthermore, the respondent submits, if the information about the College was communicated to the applicant during the settlement meeting, it was communicated by the union and not the respondent. There is no evidence that the respondent, any at time, advised the applicant that it would refrain from reporting her termination to the College if she accepted the terms of the agreement, nor did it threaten to report the matter if she did not accept the agreement.
The Applicant’s Position
16In her submissions and in her Application, the applicant provided details leading up to her termination on January 13, 2011. Briefly stated, the applicant submits that she raised a number of concerns with the respondent’s management about the respondent’s improper failure to pay her sick benefits, since 2007 when she had an accident at work, which resulted in the respondent conducting an audit of her unpaid sick time (“the audit”). Several meetings were held with the applicant, the union and the respondent to discuss the unpaid sick time issue and the audit. During those meetings, the respondent raised concerns with the applicant’s behaviour, issued her a warning and then suddenly terminated her. The applicant and the union were shocked and surprised by the termination and its timing. The applicant had suffered some family losses, one quite tragic, shortly before her termination.
17The union’s local president and a union representative attended the settlement meeting with the applicant. The applicant did not speak as the union representative and the respondent’s director of labour relations did the speaking. The applicant understood that the discussions were going to be about her being reinstated, but the hospital did not agree to reinstate her. The union told the respondent that it would refer the grievances to arbitration and the respondent left the room.
18While alone with the union, the applicant was told about the arbitration process and the length of time it would take to get an arbitration date. In the meantime, the union told the applicant that her employment record would continue to state “terminated”. The union representative left the room to get, what the applicant thought was an arbitration date with the respondent, but he returned with a settlement offer from the respondent. The applicant understood that settlement offers at this stage in the grievance process were unusual as the union representative told her “this is a first”.
19The applicant only heard about the respondent’s settlement offers by what the union told her. When the union presented her with what she understood was the respondent’s final offer, she was advised by the union representative that all terminations are reported to the College, which investigates terminations, and that a nurse cannot practice until the College has cleared the nurse. The applicant believed that this was a lengthy process and submitted that she requires a licence to work as a nurse.
20The applicant submits that having her termination reported to the College was a direct threat of harm to her personal being, livelihood, and financial means and evidence of bullying and intimidation by the respondent. She signed the agreement to prevent the respondent from jeopardizing her licence and tarnishing her employment record by using the word “terminated” so that she could continue her career as an emergency room nurse. With the threat to her licence, the applicant asserts that she had no other choice than to “back away from a bully” and sign the agreement.
21The applicant submits that the issues in her Application are serious, contrary to the Code, and are ongoing with other individuals employed by the respondent. She submits that the respondent recognized that there was a violation of the Code as the monetary compensation she received was classified as “damages” and the respondent admitted in the agreement that “a human rights violation has occurred”. The Tribunal should not dismiss an Application where a respondent has “admitted to a crime and offers up its own punishment” and then seek to have the Application dismissed because of a “waiver” that has been signed, particularly because the Application was filed first. If the Application is dismissed, then the applicant will be silenced and will not be permitted to speak about these “most grievous and serious matters”. She requests that the Tribunal permit her Application to continue.
The Agreement
22The agreement is signed by the respondent, the union and the applicant. There are 9 paragraphs which include the following terms: the applicant resigning from her employment; a specified date for her final pay, inclusive of vacation; a number of hours previously coded as vacation recoded as jury duty; a lump sum payment to the applicant “on account of Ontario Human Rights Code damages” paid within three weeks of the signed agreement; and a letter of employment. There is no dispute between the parties that these terms were complied with at some point in February 2011.
23The relevant paragraphs for the purposes of this Decision are paras. 5 and 7 which state:
- In consideration for the payment outlined above, Ms. O’Brien and the Union on her behalf hereby release the Employer from any and all disputes, grievances and claims respecting her employment and the termination of her employment whether potential or otherwise pursuant to the collective agreement, the Employment Standards Act, 2000, the Labour Relations Act, 1995, the Ontario Human Rights Code or any other legislation. Similarly the Employer hereby releases and forever discharges Ms. O’Brien from any and all actions or claims arising out of Ms. O’Brien’s employment or the termination of that employment.
a) Ms. O’Brien hereby consents to the withdrawal of any Human Rights complaint that was filed against the Employer and will advise the Tribunal of the withdrawal within two weeks from the date this settlement is signed.
b) By signing this Memorandum of Agreement, Ms. O’Brien and the Union agree that all disputes, grievances and claims potential or otherwise which are or could be in dispute between her and the Employer respecting any aspect of her employment have been fully and finally resolved and that her sole remaining legal right is to enforce the terms of this Memorandum of Agreement.
c) Ms. O’Brien acknowledges that the payment of the sums above is inclusive and exhaustive of all possible entitlements to damages, pay, pay in lieu of notice, severance pay or any other entitlements in respect of Ms. O’Brien’s employment and the termination of that employment, whether pursuant to the Employment Standards Act, the Human Rights Code, the Pay Equity Act or otherwise.
- Ms. O’Brien and the Union on her behalf, acknowledge that by signing this Memorandum of Agreement they are deemed to have understood its terms. Ms. O’Brien acknowledges that she has had a full and fair opportunity to consider this Agreement and to receive whatever advice she felt was appropriate and she acknowledges that her Union has responsibility assisted her in this matter so that she is executing this Agreement freely and without any coercion.
Analysis
24The Tribunal has held that filing a human rights application after signing a full and final release in respect of the subject-matter of an application may constitute an abuse of the Tribunal’s process. See, for example, Perricone v. Fabco Plastics Wholesale, 2010 HRTO 1655.
25The applicant does not dispute that she signed the agreement which contains release language specifically contemplating the Code, the subject-matter of her Application, and the withdrawal of her Application before the Tribunal. She argues, however, that the agreement was signed because of financial pressures and because she understood that her termination would be reported to the College, which would investigate her termination, and until she was cleared by the College, her nursing licence was in jeopardy. In essence, the applicant argues that the agreement was signed under duress and as a result it should not prevent her from proceeding with her Application.
26As the Tribunal explained in Perricone, supra, at para. 39:
When two parties contract to settle legal matters between them, the principle of finality demands that the contract be given effect and prevent parties from litigating settled matters, unless there are compelling reasons to set the contract aside altogether. Thus, in determining whether it would be an abuse of process to permit the Application to proceed, the question is not whether the applicant filed her Application in bad faith, but whether the contract (i.e. Release) she entered into is legally binding, and final.
I find that these principles apply not only in the situation where a release is signed and an application files an application with the Tribunal, but also where the application has already been filed with the Tribunal before the release is entered into.
27With respect to the applicant’s assertions that because of potential financial hardship she was required to sign the agreement, even if I were to accept that position, the case law is clear that economic pressure alone is not sufficient to set aside a release. See Sinnett v. Orlick Industries, 2009 HRTO 916, at para. 24. Furthermore, in Kailani v. Securitas Canada, 2009 HRTO 1183, at para. 35 the Tribunal held that the test for economic duress is high:
Most people who have had their employment terminated are faced with economic difficulty. Financial difficulty alone cannot therefore be sufficient. If it were, almost every settlement arising out of the termination of employment could be violated.
28The party alleging duress has the onus of establishing that the circumstances surrounding the conclusion of the agreement amount to duress. The legal threshold is an exacting one, which recognizes the strong public interest in the principle of finality.
29The Ontario Court of Appeal recently described the elements of duress as follows in Taber v. Paris Boutique & Bridal Inc., 2010 ONCA 157. At paras. 8 – 9 the Court of Appeal stated:
There is no doubt that economic duress can serve to make an agreement unenforceable against a party who was compelled by the duress to enter into it. Nor is there any doubt that the party can have the agreement declared void on this basis.
However, not all pressure, economic or otherwise, can constitute duress sufficient to carry these legal consequences. It must have two elements: it must be pressure that the law regards as illegitimate; and it must be applied to such a degree as to amount to “a coercion of the will” of the party relying on the concept. See: Stott v. Merit Investment Corp. [(1988)], 1988 CanLII 192 (ON CA), 63 O.R. (2^nd^) 545 (Ont. C.A.), as para. 89.
30In Stott, supra, the Ontario Court of Appeal also stated that the party seeking relief must have taken steps to avoid the act complained of and followed Pao On v. Lau Yiu, [1979] 3 All E.R. 65 (Privy Council) which stated that four factors must exist in order to support a finding of coercion of the will. At p. 78 of Pao On, supra, the Court said:
In determining whether there was a coercion of will such that there was no true consent, it is material to enquire whether the person alleged to have been coerced did or did not protest, whether, at the time he was allegedly coerced into making the contract, he did or did not have an alternative open to him such as an adequate legal remedy; whether he was independently advised; and whether after entering the contract he took steps to avoid it.
31In almost all of the Tribunal decisions in which an applicant has alleged duress as a result of illegitimate pressure, misrepresentation or fraudulent misrepresentation, the applicant has alleged that the respondent itself, not a third party, legal representative or union, has applied this pressure. See, for example, Bard v. Heenan Blaikie LLP, 2011 HRTO 1706, Wedderburn v. Air Liquide Canada, 2010 HRTO 691; and Arora v. Weston Bakeries, 2010 HRTO 2283.
32In Barton v. Rouge Valley Health System, 2010 HRTO 2126, both the applicant’s union and his former employer were named as respondents to an application. The applicant alleged, as an example of duress, that his union threatened to report his “double dipping” to his new employer. However, the applicant named his union as well as his employer as respondents. The Tribunal dismissed the Application, determining, amongst other issues, that the union’s comment alone was not sufficient to constitute duress.
33Accepting for the purposes of this determination that the union did tell the applicant that the respondent would report her termination to the College which could potentially affect the applicant’s licence to practice, I do not find that this constitutes illegitimate pressure as required by Taber, supra and Stott, supra. The union is not a respondent to the Application, although it is a party to the agreement. There is no evidence, and indeed no suggestion by the applicant, that during the settlement meeting the respondent threatened to report the applicant’s termination to the College, or that the respondent suggested that by being reported the applicant’s licence to practice would be affected. The applicant has not asserted that the union misrepresented this information to her. There is no information before me to suggest that the information is incorrect.
34Even if I were to find that the union’s comments constituted illegitimate pressure within the meaning of Taber, supra, which I do not find, I find that the comment was not applied with such pressure to constitute a “coercion of the will”, the second component the Court of Appeal required in Taber. As the Tribunal held in Bard, supra, in which the withholding of the applicant’s record of employment pending the signature of a release constituted illegitimate pressure, at para. 22:
In my view, withholding a record of employment pending the signature of a release constitutes illegitimate pressure within the meaning of the Court of Appeal’s decision in Taber, supra. However, as the Court of Appeal explained, illegitimate pressure alone is not sufficient to establish duress. To establish duress, the applicant must also show that the pressure was applied to such a degree as to amount to a coercion of the will.
35There is no evidence before me to conclude that during the settlement meeting the respondent was aware that the applicant had protested the terms of the agreement and/or that she claimed that she was coerced against her will into accepting the terms of the agreement. The applicant had an adequate legal remedy available to her if she did not accept the agreement. As the Application had been filed before the agreement was entered into, the applicant could have continued with her Application had she chosen not to sign the agreement.
36Further, the applicant did not take steps to set aside the agreement into which she entered. The applicant received the benefits of the agreement, such as the monetary compensation, without objection. She did not inform the Tribunal that she had entered into the agreement such that the Application was sent to the respondent for Response. It was not until approximately four months after receiving the monetary compensation, and only because she was required to file a Reply to respond to the release issues raised in the Response, that the applicant submitted that she unwillingly entered into the terms of the agreement.
37The applicant has failed to make out the elements of duress. The respondent is entitled to rely upon the release and the agreement. To set these aside and allow the Application to proceed would be an abuse of process.
38Accordingly, the Application is dismissed.
Dated at Toronto, this 7^th^ day of February, 2012.
“signed by”
__________________________________
Alison Renton
Vice-chair