John Trimmer v. Stackpole Powertrain International ULC operating as Stackpole International and Gates Canada Inc., 2013 HRTO 341

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

John Trimmer

Applicant

-and-

Stackpole Powertrain International ULC operating as Stackpole International and Gates Canada Inc.

Respondent

DECISION

Adjudicator: Eric Whist

Date: February 27, 2013

Citation: 2013 HRTO 341

Indexed as: Trimmer v. Stackpole Powertrain International ULC

APPEARANCES

John Trimmer, Applicant

Self-represented

Stackpole Powertrain International ULC operating as Stackpole International and Gates Canada Inc., Respondent

Donald Jarvis, Counsel

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 age. The applicant’s employment was terminated on February 29, 2012 when he was 65 years of age.

2In its Response the respondents requested that the Application be dismissed on the basis that the applicant had signed a full and final release with respect to the same subject matter as the Application.

3The Tribunal subsequently directed that an oral hearing be scheduled to hear submissions from the parties on the respondents’ request to dismiss. A hearing was held by conference call on February 15, 2013.

BACKGROUND

4The applicant worked as a senior financial analyst for Gates Canada Inc. (“Gates”) at its Automotive Gear Division (“AGD”) Plant in Mississauga. The other named respondent, Stackpole Powertrain International ULC operating as Stackpole International, purchased this facility from Gates on or about August 2, 2011.

5In February 2009, Gates determined it would close the AGD plant and the applicant and, it appears all other employees, were told that their employment would end when the plant was closed on December 31, 2010.

6On March 12, 2009 the applicant accepted an offer from Gates in relation to the termination of his employment that included a retention bonus that provided a continuation of the applicant’s salary after December 31, 2010. In return the applicant signed a release that states, in part, that the applicant releases the respondents from any and all actions:

Arising… by statute, including without limitation, the Human Rights Code, R.S.O. 1990, c.H. 19… which I have ever had, now have or which my heirs executors, administrators, and assigns, or any of them hereafter can, shall or may have by reason of my employment with or my termination of employment from Gates

…further I acknowledge and agree that, in light of this settlement any complaint filed under the Human Rights Code …, which anyway relates to my employment would be frivolous, vexatious and an abuse of process.

I have obtained or have had the opportunity to obtain independent legal advice … I confirm that I am executing this Release freely and voluntarily.

7The AGD plant did not close as expected on December 31, 2010 and the applicant was offered further employment on a temporary contract basis until June 30, 2011. The applicant accepted this employment and signed an agreement formalizing this arrangement on December 6, 2010, that included a provision that the parties agreed that the full and final release the applicant signed on March 12, 2009 remained in full force and effect. This agreement included a revised retention bonus.

8Gates then offered the applicant a further extension of his employment from June 30, 2011 to February 29, 2012. The applicant signed another employment agreement formalizing this temporary extension on May 31, 2011. This agreement also included a provision that the parties agreed that the full and final release the applicant signed on March 12, 2009, remained in full force and effect. This agreement also included a further revised retention bonus.

9The applicant continued to work until February 29, 2012 at which time his employment with the respondents came to an end. The applicant filed his Application on May 23, 2012.

POSITION OF THE PARTIES

10The respondents submit that there are no reasons for the Tribunal to deviate from its well established approach and practice of dismissing an application when the applicant has freely and voluntarily signed a full and final release in respect of the subject matter. The respondents submit that to do so would constitute an abuse of process. The respondents submit that the circumstances under which a release might be set aside, namely, when an applicant does not fully understand a release, when an applicant has not received sufficient and fair consideration for signing a release, when there is evidence of duress, do not apply in the present circumstance. The respondents rely on the Tribunal decisions in Dube v. Rockhaven Recovery Ltd., 2009 HRTO 53; Douse v. William E. Coutts Co., 2009 HRTO 1219; Martel v. North Shore Community Support Services Inc., 2010 HRTO 957; Oxley v. Gus Brown Pontiac Buick GMC, 2010 HRTO 33; and Arrindell v. Toronto Marriott Downtown Eaton Centre, 2009 HRTO 2235.

11After hearing the respondents’ submissions the applicant stated that he had no submissions to make, and that he had no arguments for opposing the respondents’ request to dismiss. The applicant did not contend that he failed to understand the terms of the March 12, 2009 release he signed or that he signed the release and subsequent agreements of December 6, 2010 or May 31, 2011 under duress or that he did not receive fair consideration for signing these agreements.

ANALYSIS AND DECISION

12Section 23(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (“SPPA”), 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. Section 42 of the Code states that the provisions of the SPPA will apply to a proceeding before the Tribunal unless they conflict with a provision of the Code or the Tribunal’s Rules. The Tribunal’s Rules state that the Tribunal may make such orders or give such directions that are necessary to prevent abuses of its processes.

13The 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, for example, Barton v. Rouge River Health System, 2010 HRTO 2126, and Sleiman v. The Participation House Project (Durham Region), 2012 HRTO 345.

14The applicant signed a release on March 12, 2009 and further agreements on December 6, 2010 and May 31, 2011 accepting the conditions of the March 12, 2009 release. In my view there is no argument, given the language of the March 12, 2009 release with its specific references to the Code, that it would be an abuse of process for the applicant to file an Application in relation to any alleged acts of discrimination that may have taken place prior to May 31, 2011 when the applicant signed an agreement that accepted the terms of the March 12, 2009 release.

15However, the Application alleges the applicant was discriminated against when his employment was terminated on February 29, 2012. More specifically, the applicant alleges that the respondents’ act of discrimination was not extending the applicant’s contract past February 29, 2012 as was done for all other employees who, like the applicant, had been on temporary contracts. The applicant alleges this was because of his age, the applicant having turned 65 years of age in September 2011. Is it an abuse of process for an Application to proceed in relation to an act of alleged discrimination that takes place after the date a release is signed?

16This is an issue that the Tribunal considered in Perricone v. Fabco Plastics Wholesale, 2010 HRTO 1655. In Perricone the Tribunal made the following finding about the prospective nature of releases:

Most of the allegations in the Application relate to events which allegedly occurred prior to the applicant signing the Release on May 23, 2008. Part of the allegations, however, post-date the signing of the Release by the applicant. Specifically, the applicant alleges that in or around November 2008, the respondents gave her a negative employment reference because of absences from work due to her pregnancy.

The respondents argue that the entirety of the Application, including that part of it which relates to events allegedly occurring after the Release was signed, ought to be dismissed as an abuse of process because the Release covers claims which the applicant may hereinafter have in any way relating to the hiring of, employment by or the termination of employment of the applicant by the respondent”, including claims under the Code.

The applicant submits that in order for me to find that it would be an abuse of process for her to pursue a remedy in respect of the discrimination which allegedly occurred after she signed the Release on May 23, 2008, I would have to find that when she signed the Release, she relinquished her right not to be discriminated against in the future. This, she argues, I cannot do. The applicant submits that although a person may agree not to proceed with a human rights claim based on past events, she cannot contractually agree to put herself beyond the reach of the Code’s protection in future: Insurance Corporation of British Columbia v. Heerspink, 1982 CanLII 27 (SCC), [1982] 2 S.C.R. 145 at 158. She submits that any contract which purports to have this effect is void as contrary to public policy: Ontario Human Rights Commission v. Etobicoke (City), [1983] 1 S.C.R. 202 at 213-214.

I agree with the applicant. As a matter of public policy, parties are encouraged to settle their disputes, without litigation, including disputes under the Code. However, agreeing not to file or pursue a claim based on past events is not the same as contracting to remove oneself from the Code’s protection in future. It is by now trite law that the rights individuals enjoy under the Code are quasi-constitutional in nature. It would be contrary to public policy to permit individuals to relinquish their future right to be treated in accordance with the Code, and any agreement purporting to have that effect will be null and void. To the extent that the applicant, by signing the May 23, 2008 Release, purported to agree not to claim against the respondents for future violations of her human rights, that aspect of her agreement is unenforceable, as contrary to public policy (paras. 71-74).

17The respondents submit that the provisions of the March 12, 2009 release as referred to in the May 31, 2011 agreement should apply to the termination of the applicant’s employment on February 29, 2012 notwithstanding that they predate this event. The respondents submit that if an unforeseen act of discrimination had occurred after the signing of the May 31, 2011 agreement, for example, an act of personal harassment against the applicant, that such a discriminatory act would not likely be covered by the provisions of the May 31, 2011 agreement and the March 12, 2009 release.

18However, the respondents submit that the termination of the applicant’s employment on February 29, 2012, was not an unforeseen act. It was the very subject of the May 31, 2011 agreement given that it was understood that in exchange for certain considerations the applicant’s employment would be ended on this date. The respondents submit that under these circumstances it is not open to the applicant to allege that the agreed to ending of his employment is a discriminatory act and one that would not be covered by the May 31, 2011 agreement along with its release provisions.

19The difficulty I have with this argument is that the applicant’s allegation of discrimination is not that his employment was terminated on February 29, 2012 but that his employment contract was not extended or continued after this date, as it had previously been extended. The applicant alleges that other employees who had also been on temporary contracts were extended and that the failure to extend his employment was differential treatment based on age.

20However, I am of the view that I do not have to address the issue of whether the May 31, 2011 agreement and release can apply to a future event. This is because I am satisfied that the respondent’s decision to offer some employees continuing employment past the end of their temporary employment contracts and to offer the applicant employment only to February 29, 2012, is, in fact, a decision that was made by the respondents prior to the applicant signing the May 31, 2011 agreement. In other words the alleged act of discrimination that forms the basis of the Application takes place prior to, not after, the applicant signs the May 31, 2011 agreement. Moreover, I am satisfied that the applicant was aware of this decision and that, in his view, it might be discriminatory prior to his choosing to sign the May 31, 2011 agreement. I am satisfied that this is evident from documents the applicant provided to the Tribunal.

21In his Reply to the respondents’ Response and their request to dismiss the Application the applicant writes:

The agreements that I signed on March 12, 2009 and December 6, 2010 were different from the final agreement that I signed on May 31, 2011.

The first two agreements I signed were the result of the Mississauga Plant closing. In May 2011 the final agreement was presented to me. Gates Canada had signed a three year agreement with General Motors to continue producing parts for GM until the end of 2014.

All of the employees who remained by May 2011 were reinstated as full time employees. All these employees had signed similar agreements to the one I signed in 2009 and 2010.

My question in May 2011 and still remains unanswered is why I was singled out as the employee not to be reinstated?

As I mentioned in my May 22, 2012 letter to Human Rights I was never advised by my supervisor (General Manager of the Mississauga Plant) nor by executives of the Corporate Finance department of Gates Canada of any issues regarding my job performance.

Therefore since the Mississauga Plant would be still operating for three more years and my job performance was considered satisfactory, the only reason I can see for my removal was my age.

The executives who prepared the agreement presented to me in May 2011, discriminated against me due to my age, before I signed the agreement May 31, 2011. I was told in February 2012 (two weeks before my contract expiration date of February 29, 2013) [presumably that should be 2012] that a replacement for my position was to start on March 5, 2012!

My signing of the May 2011 agreement should not dismiss the age discrimination against me.

22The applicant also includes with his Application an email dated May 24, 2011, from the applicant to his spouse:

Gail:

Gary Leblanc and I had our meeting on Friday, May 20. Although Gary did his best to calm me down, I still feel that I am getting the boot either due to my age or poor job performance (or both). I did contemplate getting legal advice about the age issue but proving it, plus time and money wasted, would probably not be in my best interest. If a clause is added I will sign it.

The email goes on to explain that the clause the applicant wants added is to have 45 days’ notice if the respondents, in future, intended to extend his contract a further 45 days in order to assist with their year-end closing.

23I am satisfied the applicant chose to sign the May 31, 2011 agreement with its release provisions knowing that the respondents had decided that his employment was going to be terminated on February 29, 2012, and that they were going to continue the employment of other employees past this date. The applicant considered whether the respondents’ decision to do this might be related to his age but nonetheless subsequently chose to sign the May 31, 2011 agreement. There is no evidence before me that the applicant signed this agreement under duress. Under these circumstances it would be an abuse of process to allow the applicant to proceed with his Application.

24The Application is dismissed.