HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Ed Atelio Versolatto
Applicant
-and-
Toyota Boshoku Canada, Inc.
Respondent
DECISION
Adjudicator: Alan G. Smith
Indexed as: Versolatto v. Toyota Boshoku Canada Inc.
APPEARANCES
Ed Atelio Versolatto, Applicant
Self-represented
Toyota Boshoku Canada, Inc., Respondent
Ted J. Kovacs, Counsel
BACKGROUND
1The applicant filed this Application on March 1, 2011, under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination and harassment in his workplace on the ground of disability. He also alleged Code-related reprisal by the respondent employer.
2In its Response filed June 30, 2011, the respondent requested that the Application be dismissed on the basis that a full and final Release (the “Release”) had been signed by the applicant with respect to all aspects of the employment relationship between him and the respondent.
3On December 13, 2011, the Tribunal’s Registrar directed that an oral hearing by conference call be scheduled to provide submissions with regard to whether the Application should be dismissed as an abuse of process due to the Minutes of Settlement and Release signed by the applicant on May 6, 2011.
4A preliminary hearing by teleconference was held before me on May 8, 2012. The applicant participated in the preliminary hearing. The respondent also participated through counsel and made oral submissions.
ARGUMENTS
5The respondent’s argument is summarized in the Response:
The Applicant’s employment was terminated on May 2, 2011, as a result of job elimination and for no reasons contrary to the Code. The Applicant was offered an enhanced termination and severance package…in consideration for the execution of a Full and Final Release, fully releasing TBCA from all causes of action, including applications pursuant to the Human Rights Code….
On May 6, 2011, the Applicant accepted the offer and agreed that the terms were in full satisfaction of all issues arising out of his employment and cessation of that employment…
6In his written submissions, the applicant submits that in May 2011 he was suffering from a major depressive disorder such that he was, “not of sound mind when I signed the severance package.” In the course of the oral hearing the applicant argued that he was psychologically unstable at the time and that his cognitive thinking and decision making abilities were impaired.
7During the teleconference, the applicant pointed to two reports by Psychologist Dr. Peter Prior dated March 11 and June 29, 2011, both of which indicate that the applicant was suffering from anxiety and depression. The applicant states that during a treatment session with Dr. Prior in June 2011, Dr. Prior commented that at the time of signing the Release the applicant was, “in no condition to make any important decisions.” Although the applicant did not call Dr. Prior as a witness, during the conference call he appeared to indicate that he would like the opportunity to call evidence with respect to Dr. Prior’s assessment of his capacity. Counsel for the respondent’s objected to medical evidence on this point in the absence of an opportunity for cross-examination of Dr. Prior.
8The applicant essentially argues that he was under a disability that rendered him incapable of understanding or appreciating the agreement he was entering into when he signed the Minutes and Release.
9In the specific circumstances of the case it was my view that the fairest approach was to provide the applicant, who is self-represented, with an opportunity to call his psychologist to provide direct evidence on the issue in question. The respondents would, of course, be entitled to cross-examine the witness.
10By Case Assessment Direction of August 29, 2012, I directed an oral hearing be convened to hear testimony from the applicant’s psychologist. A hearing was subsequently scheduled for December 12, 2012.
11On November 28, 2012, the applicant wrote to the Tribunal stating the following:
…My witness, Dr. Peter Prior, has subsequently declined to provide a report and has informed me today that he will not attend the HRTO hearing.
I have no other witnesses to call.
As such, I will not attend the hearing on December 12th….
12Accordingly, the oral hearing was cancelled by the Tribunal. This decision is therefore based on submissions made in the teleconference of May 8, 2012. The Application, Response and the parties’ written submissions were also considered by me.
ANALYSIS
13Section 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. This Tribunal has held that filing a human rights application after signing a full and final Release in respect of the subject-matter of the application may constitute an abuse of the Tribunal’s process and, where that is the case, such applications should be dismissed. See, Perricone v. Fabco Plastics Wholesale, 2010 HRTO 1655, Barton v. Rouge Valley Health System, 2010 HRTO 2126 and Sleiman v. The Participation House Project (Durham Region), 2012 HRTO 345.
14The wording of the Release specifically mention “applications pursuant to the Human Rights Code”. I find that the language of the release clearly bars the applicant from proceeding with this Application.
15The Tribunal must next consider whether there is some reason for not requiring the applicant to be bound by what would otherwise appear to be a binding promise to not commence a Tribunal Application. Some of the reasons discussed in the Tribunal’s jurisprudence include duress (both economic and psychological), fraudulent misrepresentation on the part of the respondent, and the lack of capacity by the applicant to understand the terms of the Release. See, Monteiro v. Inspec-Sol, 2010 HRTO 2281 and Sleiman, above.
16The applicant alleges that he should not be held to the Release due to his poor mental health at the time of signing the Release. However, the medical documentation provided in support the applicant’s position does not address or provide any opinion as to why the applicant was unable to understand and appreciate the Minutes of Settlement he signed on May 6, 2011.
17The Tribunal has stated in the past that an applicant would need to meet a high threshold to establish that he or she did not appreciate the significance of signing a Release by reason of mental illness or disability. See, Oakley v. Lanark (County), 2009 HRTO 1034, Lachance v. Honda Canada, 2010 HRTO 173, and Anderson v. Lerners LPP, 2011 HRTO 520. Although in the present case, the applicant presented some medical evidence that he was experiencing depression and anxiety at the time he signed the Release, the medical evidence falls short of that which would be required to establish that he was prevented from understanding the significance of the Release by reason of mental illness or disability such that he could be said to have been incapable at the time it was executed.
18In summary, the applicant has not been able to point to evidence that would demonstrate that he was incapable of understanding the terms of the Release. Ordinarily an adult who signs a contract is held to the terms of that contract. I find that the applicant has failed to provide any grounds to justify me deviating from that general rule. Therefore, to allow this Application to proceed in light of the clear language of the Release prohibiting such a claim would amount to an abuse of the Tribunal’s process.
ORDER
19The Application is dismissed.
Dated at Toronto, this 6th day of February, 2013.
”signed by”
Alan G. Smith
Member