HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Alan Junkin
Applicant
-and-
Liza Home/Communities, The Mansouri Group Inc., Milltree Developments Inc. and 100690 Ontario Inc.
Respondents
INTERIM DECISION
Adjudicator: Paul Aterman
Indexed as: Junkin v. Liza Home/Communities
APPEARANCES
Alan Junkin, Applicant
Bruce Best, Counsel
Liza Home/Communities, The Mansouri Group Inc., Milltree Developments Inc. and 100690 Ontario Inc., Respondents
No one appearing
Introduction
1This Interim Decision deals with the applicant’s request to add The Mansouri Group Inc., Milltree Developments Inc. and 100690 Ontario Inc. as respondents to this Application. It also deals with a request by the respondent Liza Home/Communities to dismiss some or all of the allegations on the grounds that the applicant is bound by his signing of a release that precluded the making of an Application under the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).
2The request to add respondents is granted. The request to dismiss the Application is granted in part. The allegation that the termination of the applicant’s employment was discriminatory is dismissed because the applicant signed a full and final release in relation to this issue.
3The allegation that the applicant’s disability was a factor in the respondents’ decision not to offer him employment after he was dismissed may or may not fall outside the scope of the release. In the absence of evidence on this issue it is not clear that this allegation is barred by the release. As a result this allegation can continue in the Tribunal’s process.
4The reasons explaining these conclusions are set out below.
background
5On May 8, 2012 the applicant filed this Application under s. 34 of the Code, alleging discrimination with respect to employment because of a disability.
6From March of 1994 until August 18, 2010 the applicant worked as a site manager for the respondent companies, which are engaged in house construction. He states that he was diagnosed with cancer in January of 2010 and was off work from then until March of 2010.
7In August of 2010 the applicant was laid off work, but alleges that he was led by respondents to believe that he would be recalled. The respondent Mansouri Group Inc. issued a Record of Employment which indicates that it was issued due to a “shortage of work/end of contract or season”, with an expected date of recall as “unknown”.
8On September 16, 2010 the applicant met with officers of the respondents and signed a document entitled “Acknowledgement and Release”. The parties dispute the meaning of this document. The respondents maintain that this was an agreement to terminate the applicant’s employment. The applicant maintains that it pertains to an agreement that he be paid while on lay-off and that he expected to be called back to work when the respondents’ business picked up. He maintains that when he went to one of the respondents’ work sites on July 24, 2011, he was told by a construction manager that he had been permanently replaced, and that his illness had been a factor in the decision not call him back.
the request to add respondents
9The analysis applied by the Tribunal when dealing with requests to add respondents is outlined in Smyth v. Toronto Police Services Board, 2009 HRTO 1513 at para. 12. The Tribunal identified three considerations:
Are there allegations made that could support a finding that the proposed respondent violated the Code?
If the proposed respondent is an individual and an organization is also named, is there a compelling reason to include him or her as a respondent?
Would it be fair, in all the circumstances, to add the proposed respondent?
10In this case the second of the three considerations noted above does not apply.
11The corporate identity of the applicant’s former employer is unclear. In its Response, Liza Homes/Communities indicates that this is a brand name and not the name of a legal entity. In exchange for signing the “Acknowledgement and Release” document the applicant was issued a cheque by The Mansouri Group Inc.. At that time his wife was also issued a cheque for monies owing to her in relation to a house that he and his wife had purchased from his then employer. That cheque was issued by Milltree Developments Inc.. A corporate search conducted by the applicant indicates that the owners of The Mansouri Group Inc. and Milltree Developments Inc. also own 100690 Ontario Inc..
12The respondent has not contested the applicant’s request to add The Mansouri Group Inc., Milltree Developments Inc. and 100690 Ontario Inc. as respondents. Which of these entities actually employed the applicant is a matter to be determined, but at this stage it appears that the companies are related to each other and are all in the construction business. Until a determination is made as to which entity or entities employed the applicant, the allegations could support a finding that any or all of the three proposed respondents violated the Code.
13In these circumstances, including the fact that no objection has been taken to adding any of the proposed respondents, it would be fair to include them. The applicant’s request is granted and the style of cause is amended accordingly.
request to dismiss
14In filing its Response, Liza Homes/Communities requests that the Application be dismissed. It argues that the document signed by the applicant on September 16, 2010, amounted to a binding agreement to terminate his employment in exchange for a payment. It maintains that this was a settlement that precludes the applicant from filing an Application in relation to any alleged Code violation. Implicit in this argument is a contention that allowing this Application to proceed would amount to an abuse of process.
15Pursuant to directions set out in Interim Decision 2013 HRTO 98 an oral hearing was held on December 2, 2103 to hear evidence in support of the applicant’s arguments that the agreement does not bar his Application because he did not understand the nature of the agreement when he signed it and he did so under duress.
16The respondent Liza Home/Communities did not participate in this hearing. The applicant gave evidence and his testimony was in most respects credible. However, as I explain below, I do not accept his evidence that when he signed the release document he thought he was signing a receipt for the money he was being paid and did not realise that he was agreeing to waive his legal rights to pursue a claim of discrimination under the Code.
Circumstances Surrounding The Signing Of The Release
17The applicant was trained as a carpenter and had worked for the respondents since 1994, first in a position entitled superintendent. Later the title was changed to site manager. The position was managerial and the applicant was not protected by the terms of a collective agreement.
18He was responsible for organising the respondents’ work sites, including such tasks as ordering construction materials, scheduling the sequence of construction to meet building deadlines, and determining what to do in the face of risks to the continuity of work (i.e. weather or strikes). At any given site he would oversee the work of 30-45 workers at a time.
19In January of 2010 he was diagnosed with cancer and was off work in order to have it treated. He returned to work in March of that year.
20The applicant testified that on August 15, 2010 he was told by Sharokh Noormansouri, an officer of one of the respondents, that there was no further work for him and that he was being laid off as of August 18, 2010. There was no discussion of a return to work at that time.
21On August 20, 2010, the applicant and his spouse went to the respondents’ offices and met with two other officers of the respondents, Amin Haghighi and Azim Azimi. The applicant expected that he would be paid termination pay in the amount of two weeks for each of the 16 years that he had worked for the respondents. Instead he was offered a cheque for the last two weeks that he had worked, three days’ pay as termination pay and a further cheque for $3,000, which was money owed to him and his wife in relation to the purchase of their home from the respondents. The applicant describes this encounter as heated, as the respondents’ officers tried to get him to accept the money and sign a document that he thought was a receipt for the money. He refused. The applicant told Mr. Azimi that while he was entitled to two weeks of termination pay for every year worked, he would accept a cheque for 16 weeks’ pay. Mr. Azimi told him that he could not decide and would have to consult Mr. Noormansouri about it. The applicant and his wife left.
22On August 24, 2010 the applicant and his wife met with Mr. Noormansouri and he describes this discussion as amicable. The applicant was told that he would receive the $3000 owing for the house, a cheque for 16 weeks’ pay, a further payment of $10,000 and the respondents would pay for the applicant and his wife to go on a vacation. Mr. Noormansouri then told the applicant that he wanted him to return to work when there was work available on a site in Oshawa, and concluded the meeting by shaking his hand and telling him “We’ll retire together”. The applicant was to return in a few days to pick up his cheques.
23When the applicant came to the respondents’ offices on September 16, 2010, he met with Mr. Haghighi, who presented him with a $3,000 cheque for money owing in relation to the house and a single cheque for $10,000. The applicant accepted the cheque for $3,000 but told Mr. Haghighi that the remaining cheque was not what he had agreed to and demanded to meet with Mr. Noormansouri.
24The applicant then met with Mr. Noormansouri. Mr. Noormansouri directed Mr. Azimi to prepare a cheque representing 16 weeks’ pay, less deductions, and informed the applicant that the offer of the $10,000 payment was now withdrawn. After Mr. Azimi prepared the cheque, the applicant met with Mr. Haghighi and Mr. Noormansouri. He claims that they pressured him into signing a document. He felt nervous and scared, and thought that the document was a receipt for the money he was receiving. Although he asked to read the document, this request was refused. The applicant asked for a copy of the document and that was also refused.
25He testified that the fact that he was recovering from his illness, and had high mortgage payments created a pressure to sign in order to gain access to the money that was offered him.
26The applicant has since read the document and understands it to mean that his employment was being terminated and that his signature on the document effectively waived any legal recourse he might have had.
27In a letter sent to the Tribunal on June 18, 2012 the applicant refers to the September 2010 meeting and states:
I advised Mr. Mansouri’s accountant who was heading up the interview that I would like to have the document reviewed by a lawyer before signing anything however his tone changed and he advised me if I didn’t sign the document I would get nothing.
28When I asked him whether he recalled asking to have the document reviewed by a lawyer he indicated that he did not recall it specifically, but probably did make that request.
29The document is confusing. It reads as follows:
ACKNOWLEDGMENT AND RELEASE
By:
Alan Junkin.......................................................... Releasor"
Issued to:
Mansouri Group Inc, & Other related companies called: "Employer"
Reagrding [sic]:
Service/Employment Agreement between "Employer" and "Releasor" called "Agreement"
Agreement Termination Date August 18/2010
I, "Releasor" on behalf of myself, my heirs, executors, successors and assigns in consideration of other good and valuable consideration and the sum of Two Dollars, and in consideration of the net pay subsequent to deduction of withholding for Income Tax, CPP, El, etc. now deposited in my personal bank account by "Employer, the receipt whereof is hereby acknowledged, and which sum includes total of all wages owing to me plus all accrued vacation pay to the "Agreement" Termination Date, do hereby remise, release and forever discharge "Employer", their successors and assigns, together with all respective officers, directors, shareholders, agents, employees, servants and insurers the "Employer" of and from any and all claims, actions, causes of action, contracts, suits, debts, dues, accounts, bonds, demands and covenants, whether express or implied, whether statutory or otherwise, and demands for damages, indemnity, costs, interest, wages, severance pay, notice of termination, termination pay, insurance coverage, benefits, payments in lieu of benefits, commissions, bonuses, vacation pay, expenses, overtime pay, loss or injury of every nature and kind whatsoever and howsoever arising, which I may heretofore have had, may now have, or may hereinafter have, known or unknown, in any way arising out of, or by reason of an "Agreement" between the "Employer" and "Releasor" accepted by me the "Agreement" or relating to the hiring of and the employment by and the cessation of the employment of the "Releasor" by the "Employer", including but not limited to, any and all claims under the Employment Standards Act, 2000, S.O. 2000, C 41, the Human Rights Code R.S.O, 1990, c. H. 19 and the Occupations [sic] Health and Safety Act, R.S.O, 1990, c.O.I. The undersigned confirms that by mutual agreement of the undersigned and "Employer" the duration of the "Agreement" was converted to term, with the term to end as of the "Agreement" Termination Date.
In Witness whereof, the Releasor has hereunto executed this Release by affixing my name & signature in the presence of the witness whose name is subscribed below.
30The applicant argues that this is a case of duress and that the facts meet the criteria for duress set out in Pritchard v. Ontario (Human Rights Comm.), 1999 CanLII 15058.
31First, he maintains that he did not fully understand the significance of the release. He did not realise that his employment was being terminated permanently. When Mr. Noormansouri told him “We will retire together” he took that to mean that he would be recalled when work became available. He argues that the respondents misled him as to what he was agreeing to and that they compounded this deception by refusing to let him read the release or have a copy of it.
32He further argues that the consideration offered for his signature fell far short of what he would have obtained in damages for his wrongful termination, given his length of service. He maintains that he was subject to both economic pressure and psychological pressure amounting to duress.
Analysis
33The Code does not explicitly bar applications where an applicant has executed a release in favour of a respondent. See Bielman v. Casino Niagara, 2009 HRTO 123. However, the Tribunal may determine that allowing an application to proceed in such circumstances amounts to an abuse of process.
34Here the terms of the agreement between the parties are not easy to discern, given the wording of the Acknowledgement and Release document. The applicant argued that the release is not accompanied by Minutes of Settlement and thus there is no documentary record of what the parties agreed to. I disagree. While the language of the Acknowledgement and Release document is somewhat garbled, a plain reading of the text makes it sufficiently clear that the parties intended that the employment relationship end, that the applicant would be paid “good and valuable consideration” for its termination and that he would release the respondents from claims under various statutes, including the Code.
35In Better Beef Ltd. v. MacLean, 2006 CanLII 17930 (ONSCDC), at paras. 46-48, the Divisional Court confirmed that where “the literal and ordinary meaning of the release” demonstrates a clear intention on the part of the parties to fully and finally release the respondents from all claims, it should not be easily disturbed.
36Pritchard outlines criteria for departing from that principle. The factors in Pritchard are (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.
37Regarding the first criterion, whether or not the applicant believed he was agreeing to a layoff, rather than a termination, by his own account he felt that he was being pressured into signing the release and was reluctant to do so. That tells me that he felt it had some impact on his rights and interests, otherwise he would not have resisted.
38This is confirmed by his testimony that he probably did ask to show the document to his lawyer. Why would he have done so if he genuinely believed it to be a simple receipt for money he was about to receive, as opposed to a document that would affect his legal rights? A statement acknowledging receipt of money can be expressed in a line or two, rather than a full page of densely worded text. I do not accept his testimony that he thought it was a receipt. I find that it was more likely than not that he believed the document to have some bearing on his rights and interests.
39The Tribunal has held that where parties have the capacity to understand that their rights are at stake, they have to take the time and effort to determine for themselves whether they wish to waive those rights (see for example Perricone v. Fabco Plastics Wholesale, 2010 HRTO 1655 at paras. 68-70 and Kennedy v. Appliance Canada, 2011 HRTO 384 at para. 23). I find that this reasoning applies here. The fact that the applicant did not follow through on his instincts and seek legal advice before signing is a consequence that he has to bear.
40In relation to the second criterion, in determining whether the consideration for signing the release is sufficient and fair, it is useful to apply the common law doctrine of unconscionability. A contract will be set aside as unconscionable where the consideration is patently inadequate. The applicant has not demonstrated that an amount equivalent to 16 weeks’ pay is patently inadequate.
41Regarding the applicant’s claim that he was subject to economic duress, the Ontario Court of Appeal described the elements of economic duress in Taber v. Paris Boutique & Bridal Inc. (Paris Boutique), 2010 ONCA 157 as follows at paras. 8-9:
There is no doubt that economic duress can serve to make an agreement unenforceable against a party who was compelled by the duress to enter into it. Nor is there any doubt that the party can have the agreement declared void on this basis.
However, 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. See: Stott v. Merit Investment Corp., 1988 CanLII 192 (ON CA), 63 O.R. (2nd) 545 (Ont. C.A.), at para. 89.
42In Stott, the court held that in order for economic duress to be found, the party whom is being illegitimately pressured must be put in position where he has no “realistic alternative” but to submit. I am prepared to accept that the respondents’ officers put pressure on the applicant to sign the release, but I do not accept that the applicant had no realistic alternative.
43Once before, on August 20, 2010, he had faced pressure from the respondents to sign a release and he refused. Then a second time, on September 16, 2010 when dealing with Mr. Haghighi alone, he refused to accept what he was offered. While he ultimately agreed on September 16, 2010 after then meeting with Mr. Noormansouri, he did not explain why he had no realistic alternative but to sign at that time. There is no evidence that the pressure that was put on him was the kind of pressure that the law regards as illegitimate.
44Regarding the applicant’s assertion that the emotional and psychological pressures on him were so great as to amount to duress, I certainly accept that the applicant felt under a great deal of stress at the time, given his state of health and his financial situation. However, he has not shown that the pressures on him were so great as to amount to a coercion of his will because he has not produced evidence that would support a conclusion that he could not make choices for himself at the time he signed. By his own evidence he thought about refusing to sign until he had consulted a lawyer, yet decided against doing so. In my view this illustrates that he made his own decision, and while it may have been a decision made under pressure, it was not a decision made under duress.
45For the above reasons I conclude that the applicant has not established that he signed the Acknowledgement and Release under duress. The document represents a full and final settlement of issues arising out of the termination of the applicant’s employment. It would therefore be an abuse of process to allow the allegation that discrimination was a factor in the termination of his employment to continue in the Tribunal’s process.
The remaining allegation
46The applicant alleges that in July of 2011, almost a year after his termination he spoke to his former boss, Anthony Mora, who is a construction manager for the respondents. He asked Mr. Mora about being recalled and was told that the respondents would not hire him back because of his disability.
47The applicant argues that this is evidence of discrimination that is independent of the facts and issues covered by the Acknowledgement and Release, in that it arose after the termination of his employment and is evidence of the respondents’ discriminatory stance in relation to the possibility of rehiring him. On that basis he argues that this allegation should be allowed to proceed.
48In the absence of evidence that puts this remark into context, it is not clear whether this allegation is captured by the terms of the Acknowledgement and Release or not. A hearing which establishes what Mr. Mora was told by the respondents about any future hiring of the applicant and when he was told this will enable the Tribunal to determine whether or not this allegation is encompassed by the document which settled the applicant’s termination. Accordingly, the Tribunal will schedule a hearing to decide the merits of this allegation.
Order
49The applicant’s request to add the Mansouri Group Inc., Milltree Developments Inc. and 100690 Ontario Inc. as respondents is granted and the style of cause is amended accordingly.
50The request by the respondent Liza Homes/Communities to dismiss the allegation that the applicant’s termination was discriminatory is granted.
51The applicant’s allegation that the respondents discriminated against him by refusing to consider rehiring him will proceed. The Registrar is requested to schedule a hearing in Toronto to determine this issue.
Dated at Toronto, this 24th day of January, 2014.
“Signed by”
Paul Aterman
Vice-chair