Darlene Ford v. Lafarge Canada Inc., 2013 HRTO 432

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Darlene Ford

Applicant

-and-

Lafarge Canada Inc., a subsidiary of Lafarge North America Inc., and Blake Stewart

Respondents

DECISION

Adjudicator: Brian Cook

Date: March 13, 2013

Citation: 2013 HRTO 432

Indexed as: Ford v. Lafarge Canada Inc.

APPEARANCES

Darlene Ford, Applicant

Self-represented

Lafarge Canada Inc. and Blake Stewart, Respondents

Tom Moutsatsos, 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 disability. The Application was filed on June 25, 2012. The Application was delivered to the respondents who advised that the applicant was employed by Lafarge Canada Inc., a subsidiary of Lafarge North America Inc. and that the correct name of the personal respondent is Blake Stewart. The style of cause has been changed to reflect this.

2The Tribunal scheduled a hearing by telephone conference call to determine if the applicant is able to bring the Application because she signed a Release stating that she would not bring an Application. The hearing was held on February 15, 2013. All the parties participated.

3The applicant was employed by the corporate respondent from 2001 to 2011. Her employment was terminated effective February 23, 2011. The applicant alleges that this decision was influenced by the fact that she has a work-related elbow condition that required accommodation and also because she had been experiencing problems due to increased stress.

4The Response stated that the applicant had signed a Release at the time her employment was terminated, which stated, among other things, that the applicant would not bring an Application against her employer under the Code.

5On February 23, 2012, the applicant was called to a meeting at work with a member of the employer’s human resources department. She was given two documents. The first is a four-page document that confirms the termination of employment and states that the applicant will be paid the equivalent of ten months of salary, less deductions, in severance and termination pay. The letter sets out two options for the payment of this money, indicating that the applicant can elect to have it paid as salary continuance or as a lump sum. The letter also provides details concerning the effect of the termination on the applicant’s entitlement to various employment benefits.

6The letter also states:

To accept and receive the above severance package, please sign a copy of this letter where indicated below and sign the attached Full and Final Release… no later than March 8, 2012.

Please consider the severance options presented above and feel free to contact the writer at any time over the next few days to discuss any aspect of this letter. You are also encouraged to review the details of this offer with your legal counsel.

7The Full and Final Release states in part:

I expressly covenant, represent and warrant that I have no further claim against the Company arising out of my employment or cessation of employment, which specifically includes but is not limited to…any claims under the Ontario Employment Standards Act, the Ontario Human Rights Code, or otherwise. I covenant represent and warrant that I do not have any claim or complaint presently pending at the Ontario Employment Standards Branch or the Human Rights Commission relating to my relationship or employment with the Company or the termination of that relationship, and that I will make no such claim or complaint.

8The respondents provided copies of the termination letter and the Release with the Response. The copies provided show that the applicant signed both documents on February 26, 2012.

9At the conference call hearing, the applicant agreed that she had signed the documents. However, she stated that she would not have signed the documents if she had realized what they said and that signing them would mean that she could not bring this Application.

10The applicant said that she recalls that she was called to the human resources office and told that she had to sign documents to indicate whether she wanted the severance package paid as a lump sum or as salary continuance. She elected salary continuance. She indicated that she felt pressured to sign the documents and did not read them carefully because she was very upset and distressed by the termination.

11The termination letter is dated February 23, 2012, which was a Thursday. As noted, it appears that the applicant signed the documents on February 26, 2012, which was a Sunday.

12The applicant did not dispute that the copies of the documents that the respondents provided are copies of the documents that she signed. While she recalls that she signed them at the meeting with the human resources person without carefully reading them because she felt pressured, she could not explain why the documents appear to have been signed on Sunday February 26, 2012.

13While I accept that the applicant was very upset at the time and may not have been thinking clearly, the fact is that she signed documents that expressly said that she would not bring an Application under the Human Rights Code. It appears that she was given time to read the documents, or have someone else read them and help her understand them before she signed them. The documents did not have to be returned until March 8, 2012 so the applicant could have taken more time if she wished.

14On this basis, I cannot conclude that the applicant signed the documents under duress.

15I further note that the severance package that was provided exceeded the minimum payments the applicant was entitled to under the Employment Standards Act. At the hearing, the applicant confirmed that she never had a complaint about the package that was paid. Her complaint is about the fact that her employment was terminated and her belief that her disability was a factor in the decision to terminate her employment.

16As discussed at the hearing, the purpose of the hearing was to allow me to determine if the fact the applicant signed the Release means that she cannot bring the Application to the Tribunal. The purpose of the hearing was not to determine if the applicant’s Code-protected rights were infringed. That could only be determined by the Tribunal if the Application can be brought to the Tribunal.

17The Tribunal has consistently held that if an employee signs a Release containing language that states that the employee will not bring an Application against the employer, the employee cannot bring an Application against the employer except in exceptional circumstances. An employee who has signed a Release may be permitted to bring an Application if the employee can show that she signed the Release under duress. However, as noted, I am unable to conclude that the applicant signed the Release under duress. There does not appear to be any other exceptional circumstances that would suggest that the documents the applicant signed should not be binding on her.

DECISION

18The applicant signed a Release that stated that she would not bring an Application to the Tribunal against her employer in relation to her employment or the end of her employment. That Release is binding on the applicant and means that she cannot bring the Application against her employer in relation to her employment or the end of that employment. For this reason, the Application is dismissed.