Santoso Sugianto v. Sweda Canada Inc. and Ursula Short, 2013 HRTO 1210

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Santoso Sugianto

Applicant

-and-

Sweda Canada Inc. and Ursula Short

Respondents

DECISION

Adjudicator: Dawn J. Kershaw

Date: July 11, 2013

Citation: 2013 HRTO 1210

Indexed as: Sugianto v. Sweda Canada Inc.

APPEARANCES

Santoso Sugianto, Applicant

Self-represented

Sweda Canada Inc. & Ursula Short, Respondents

Roy C. Filion, Counsel

Introduction

1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of race and ethnic origin.

2The respondent requested that the Application be dismissed as an abuse of process because the applicant signed a full and final release on February 22, 2012.

3A preliminary hearing was scheduled, and the parties were invited to file any additional documents in advance of the hearing.

EVIDENCE

4On February 22, 2013 the respondent gave the applicant a letter of termination and a document entitled “Full and Final Release and Indemnification” (“Release”). The applicant signed both documents that day.

5The second last paragraph of the letter states:

We ask that you respond to this letter by no later than Monday, February 27, 2012 at 4:00 p.m. At this time, we will require confirmation of your acceptance by your signature on the copy of this letter and your execution of a Final Release (a copy of such is attached).

6The Release states, among other things:

IT IS CONVENANTED AND AGREED that any actions or events arising from or relating to my employment and/or termination of employment by the Releasee will not become the subject of any legal proceedings commenced by me or caused to be commenced by me under the Human Rights Code. I have reached this understanding and position voluntarily and will not proceed to make any claim or complaint whatsoever through the Human Rights Commission.

7The terms of the Release applied to the applicant as well as the corporate respondent and “all parents, subsidiaries, affiliates and associated companies, together with all respective officers, directors, employees, servants and agents and their successors and assigns” (emphasis added).

8The Release specifically refers to “actions or events” arising from his employment, and expressly precludes future Code-related proceedings.

9The applicant says he signed the Release because he was told he would get a three month severance package (the respondent indicated it was a four month package, but nothing turns on this difference), but “to his dismay” the Release contained terms affecting other matters besides severance and the termination of his employment. It did not come to his attention and he did not understand that he could not complain about the treatment he received during the course of his employment.

10He did read the Release and letter, although quickly. He asked the president, Mr. Emard, when it was given to him on February 22, 2012 if he had to sign the Release right away and Mr. Emard allegedly said “it’s better that way”. The applicant said he “did not necessarily” understand that he could take time before he signed the Release.

11The respondent submitted that the applicant was given time to review and sign the Release and letter and chose to sign them that day because he found the severance package acceptable.

12The respondent pointed out that the applicant is a well-educated and experienced business person who indicated he read the documents before he signed them and would have known he had five days to sign them.

13The respondent submitted that the applicant cannot accept a settlement and then almost a year later come back and ask for more from the employer.

ANALYSIS

14Section 23(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, as amended, provides that a tribunal may make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes.

15The applicant was given five days to review the Release and letter. He signed them because he was content with the severance package.

16The applicant did not take time to consider whether to sign the Release or not, even though he was given that opportunity.

17While the applicant alleged that the respondent told him it was better if he signed the Release that day, he did not say that he was coerced or that he did not understand what he was signing although he did feel stressed because his employment was being terminated.

18The applicant’s allegation that the respondent told him it was “better” if he signed the Release that day was denied by the respondent. Even if the allegation is accepted, I find this is not enough to establish duress or coercion.

19The Court of Appeal in Taber v. Paris Boutique & Bridal Inc., 2010 ONCA 157 stated:

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… in order for economic duress to be found, the party whom is being illegitimately pressured must be put in a position where he has no ‘realistic alternative’ but to submit.

20In this case, I find that Mr. Emard’s alleged statement was neither illegitimate pressure, given the letter offered him five days to consider the offer, nor can it amount to a coercion of the will without evidence that considerably more effort was applied.

21The applicant also stated that he did not “necessarily” understand that he could take time to consider the Release before signing, but this was an equivocal statement that indicated to the Tribunal that he may well have understood he could take the time, chose not to do so, and now regrets not doing so. He felt he had no choice financially, and did not wish to work for a company that did not want him. Neither of these reasons is sufficient to establish that there was any pressure put on the applicant by the respondent to have him sign the Release and letter.

22The applicant agrees that he is a well-educated, highly-experienced business person. I find that the applicant is sophisticated enough to understand that he had been given the opportunity to review the Release and letter. .

23In Perricone v. Fabco Plastics Wholesale, 2010 HRTO 1655, the Tribunal held that the fact that human rights issues were not specifically discussed at the time of termination did not detract from the plain wording of the agreement

24There appear to be no factors that would lead the Tribunal to set aside the parties’ agreement in which in return for a generous severance payment the applicant agreed not to commence any actions or claims including Code claims arising out of his employment with the respondent.

25In addition, the Tribunal has held that signing a release on termination of one’s employment precludes the person continuing an application under the Code with respect to the alleged actions of that person’s former co-workers when the release includes the corporation’s employees, and the alleged breaches of the Code occurred in the context of the employment. See Tomar v. Lio, 2012 HRTO 1468 and Penalosa v. Teva Canada Limited, 2012 HRTO 1004. Therefore the terms of the Release, noted above in paragraph 6, also bar the Application against the personal respondent, an employee of the corporate respondent.

26The applicant freely entered into a full and final release with the corporate respondent in respect of claims under the Code. He presented no basis to relieve him from that agreement . It would be an abuse of the Tribunal’s process to permit the Application to proceed.

27The Application is dismissed.