Bruni v. Rod and Joe’s No Frills, 2013 HRTO 346

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Angie Bruni

Applicant

-and-

Rod and Joe’s No Frills

Respondent

DECISION

Adjudicator: Eric Whist

Date: March 1, 2013

Citation: 2013 HRTO 346

Indexed as: Bruni v. Rod and Joe’s No Frills

APPEARANCES

Angie Bruni, Applicant

Michael Whitney, Representative

Rod and Joe’s No Frills, Respondent

Elyse Mallins, Counsel

United Food and Commercial Workers Union, Local 1000A

Jeffrey Andrew, Counsel

1This is an Application filed on June 13, 2012, under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Application alleges discrimination with respect to employment on the basis of sex, marital status and age.

2On November 15, 2012, the Tribunal issued an Interim Decision, 2012 HRTO, 2154, addressing a number of preliminary issues including the fact that the applicant had provided the Tribunal with a copy of a release in the form of Minutes of Settlement (the “Minutes”) dated January 19, 2012 that appeared to be signed by the applicant, the applicant’s bargaining agent, the United Food and Commercial Workers Union, Local 1000A, (the “Union”) and the respondent. The Minutes state that the parties wish to settle “all matters related to the Employee’s employment with the Employer” and further contain a provision stating that the applicant releases and forever discharges the respondent from any and all manners of actions including claims under the Code which may arise from her employment with the respondent.

3The Interim Decision directed that an oral hearing be scheduled to hear submissions from the parties on the issue of whether it would be an abuse of process to allow the Application to proceed given the terms of the Minutes signed on January 19. 2012. A hearing was held by conference call on February 22, 2013.

BACKROUND

4The applicant was a cashier/clerk in the respondent’s grocery store. On January 19, 2012, she participated in settlement discussions with the respondent. Present for the respondents were Rod Muller, the store owner and Hardeep Singh. The applicant was present along with two representatives from the Union, Gordon Brown, a staff representative and Pam Cargill, the store steward. There was no active grievance related to the circumstances that gave rise to the settlement discussions. The parties have differing versions of some of what happened during the settlement discussions.

5The Minutes that were signed included the following two terms:

4. The Parties agree that these Minutes of Settlement constitute full and final settlement of all outstanding issues. The Employee releases and forever discharges the Employer and the Union and its affiliates companies, officers directors, employees, agents and assigns, from any and all manner of actions, causes of action, grievances, claims, demands, and proceedings of every nature and kind of injury, loss compensation, reinstatement or interest, however so arising, whether statutory or otherwise,(including but not limited and provision of claims under any Collective Agreement, the Employment Standards Act, and the Human Rights Code and the Labour Relations Act, which she may have had, may now have, may hereafter have in any way arising out of her employment with the Employer

5. The Employee further acknowledges and agrees that she has carefully reviewed these Minutes and further acknowledges and agrees that she fully understands and accepts each of the terms and conditions of these Minutes and is entering into these Minutes freely and voluntarily.

6The applicant provided a letter from her doctor dated February 1, 2013, referring to the applicant’s health in 2011 and 2012 as well as her present health.

THE POSITIONS OF THE PARTIES

7The applicant submits that her Application should be allowed to continue because she was coerced into signing the Minutes under duress. She submits the settlement process was in itself stressful, that during the course of the settlement discussions she was excluded on three occasions while the Union representatives and the respondent met and, more importantly, she was expressly denied her right to confer with a lawyer. She submits that she did ask to confer with her lawyer but was told that the settlement discussions were private.

8The applicant submits that she was distressed that she was being treated poorly during the settlement discussions on January 19, 2012, after having worked for the respondent for eight years. She submits she had no choice but to sign the Minutes because the respondent made it clear that she would not continue to work at its store.

9The applicant submits that a further stress was the state of her health in January 2012. She submits that at the time she signed the Minutes, she was depressed and experiencing menopause and that the doctor’s letter she provided corroborates this.

10The respondents submit that it would be an abuse of process for the applicant’s Application to proceed. The respondent submits that the Minutes specifically state that the applicant releases the respondent from any further actions including an Application under the Code. It submits that there was no evidence before the Tribunal to indicate that the applicant did not understand the Minutes. It submits that the medical information the applicant provided from her doctor and the applicant’s references to being stressed do not substantiate that she was under duress at the time she signed the Minutes or indicate that applicant did not have the capacity to enter into the Minutes of Settlement. It submits that the applicant received due consideration for signing the release.

11The respondent submits that the applicant did have representation during the settlement discussions in the form of her Union representatives. It submits that the applicant was not prevented during the settlement discussions from getting further advice which she did by making two telephone calls.

12The Union indicated that its role was not to speak to the merits of the issue before the Tribunal but rather to provide information about its understanding as to what took place during the settlement discussions. The Union did provide some information but I have not relied on it for the purposes of this Decision. Nor have I relied on the respondent’s account of events of what took place in relation to the settlement discussions when this information was at odds with the applicant’s account of events.

ANALYSIS

13The Code does not explicitly bar applications where an applicant has executed a release in favour of the respondents. However, Section 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. The 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, Sleiman v. The Participation House Project (Durham Region), 2012 HRTO 345 and Perricone v. Fabco Plastics Wholesale, 2010 HRTO 1655.

14There was no dispute that the Minutes signed by the applicant contain language that specifically states that the applicant releases the respondent from any action under the Code arising from her employment with the respondent. I am satisfied that Term #4 of the Minutes quoted earlier makes this clear.

15In Pritchard v. Ontario (Human Rights Comm.), 1999 CanLII 15058 (ON SC), the Court set out factors for determining whether a release should be set aside. Pritchard was decided under section 34 of the old Code, which invoked bad faith rather than abuse of process however, the Tribunal has found that the “Pritchard factors” can be useful in determining whether it would be an abuse of process to proceed with a hearing on the merits. See Douse v. Hallmark Canada, 2009 HRTO 1254. The Pritchard factors look to (1) whether the party fully understood the significance of the release; (2) whether the party received sufficient and fair consideration for signing the release; (3) evidence of economic pressure; and (4) evidence of psychological or emotional pressure amounting to duress.

16The issues before me are whether the Minutes should be set aside and the Application allowed to proceed because the applicant was under psychological or emotional pressure amounting to duress and/or because the applicant did not fully understood the significance of the Minutes that she signed.

17The Ontario Court of Appeal described the elements of duress as follows in Taber v. Paris Boutique & Bridal Inc., 2010 ONCA 157 at para. 9:

...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.

18I do not accept the applicant’s argument that she was under duress at the time of the settlement. It is understandable that the applicant was stressed and anxious about the settlement process. It was, after all, bringing to an end her employment relationship with the respondent. It may also been that the respondent was keen to end the applicant’s employment and that the applicant became aware or this or more fully aware of this during the settlement discussions. However, it is not unusual for parties to have strongly differing views or interests in the outcome of settlement discussions. It may also have been such that during the course of the settlement discussions the Union as the applicant’s representative, met separately with the respondent, a practice that does not strike me as unusual or necessarily inappropriate. So while I accept the circumstances surrounding the settlement discussions were stressful for the applicant, I do not find they constitute duress, that they involved the respondent exercising illegitimate pressure to coerce the applicant.

19The applicant submitted that she also had medical conditions that contributed to her stress and her sense of duress and in support of this claim provided a doctor’s note dated February 1, 2013. However, the applicant’s statement that she was depressed in January 2012 and going through menopause and the very general information provided in her doctor’s note is insufficient to establish that the applicant’s medical condition either led her to signing an agreement against her will or affected her ability to comprehend the essential nature of the Minutes and its terms.

20The applicant submitted that she was denied her rights to confer with her lawyer. The applicant was of the view that conferring with her lawyer was her given right. However, as the Tribunal states in Nolan v. Vale Inco, 2010 HRTO 1758, there is no self-standing, independent right to have access to counsel:

There is no absolute right of an individual to independent legal advice regarding the settlement of a human rights dispute. In the unionized sector, the vast majority of grievances involving alleged breaches of the Code are resolved without the grievor being provided an opportunity for independent legal advice. The relevancy of an absence of independent legal advice relates to the question as to whether it can be suggested that the individual did not understand the terms of the settlement document. The lack of independent legal advice may reinforce an argument that an individual did not fully appreciate the terms of the agreed to settlement.

21The applicant did not argue that she did not understand the terms of the Minutes she signed. She signed the Minutes which include a provision (Term #5 cited earlier) stating that she understood the Minutes, agreed to the terms and conditions of the Minutes and had entered into the Minutes freely and voluntarily. The applicant was not self-represented in the settlement process, she had Union representation. Given these circumstances I cannot find that applicant’s failure to confer with a lawyer led to her agreeing to a settlement she could not comprehend or whose terms she did not understand. It does not lead me to find that the applicant’s decision to sign the Minutes was coerced.

22Having considered all the circumstances I am satisfied that the respondent is entitled to rely on the release signed by the applicant. It would be unfair to the respondent and an abuse of the Tribunal’s process to allow the applicant to pursue her Application under the Code. The Application is therefore dismissed.