Winnifred Wood v. LifeLabs LP, 2014 HRTO 1100

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Winnifred Wood Applicant

-and-

LifeLabs LP Respondent

DECISION

Adjudicator: Douglas Sanderson Date: July 25, 2014 Citation: 2014 HRTO 1100 Indexed as: Wood v. LifeLabs LP

WRITTEN SUBMISSIONS

Winnifred Wood, Applicant Self-represented

LifeLabs LP, Respondent Anne Gallop, 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 respondent filed a Response denying any discrimination, but also requesting dismissal of the Application on two grounds, (i) the applicant signed a full and final release in favour of the respondent and (ii) because the applicant filed the Application more than one year after the final alleged incident of discrimination, i.e., the termination of the applicant’s employment.

2In light of the respondent’s request for dismissal, the Tribunal scheduled a half day preliminary hearing to determine whether the Application should be dismissed for delay or because allowing it to proceed, despite the release executed by the applicant, would amount to an abuse of process. The Tribunal held the preliminary hearing by teleconference on July 11, 2014.

Background

3The salient facts are not in dispute. The respondent employed the applicant for several years in the position of Cytotechnologist at its laboratory located on Neilson Road in Scarborough, Ontario. In January 2012, the respondent decided to close the Neilson Road facility and move the work performed there to its headquarter facility on International Boulevard in Toronto, Ontario. On or about January 18, 2012, the respondent offered the applicant the option of either continuing her employment at the International Boulevard location on April 2, 2012, or accepting a severance package. The severance package consisted of 14.5 months of notice and pay in lieu of notice. The respondent asked the applicant to notify it of her decision by January 25, 2012, but the applicant requested an extension of time to make her decision until mid-February 2012. The respondent granted an extension to February 3, 2012. The applicant decided to accept the severance package offered and signed an “Acknowledgement and Release” form that included the following paragraphs:

In consideration of that payment to me, I release and forever discharge LifeLabs from any all claims arising from or related to my employment at LifeLabs or the cessation of my employment, including claims for salary, termination pay, severance pay, vacation pay, bonus, benefits and pension…

I acknowledge that I have not been subjected to any form of discrimination that is prohibited by legislation, and warrant that I have not commenced any complaint and undertake not to commence any complaint under the Ontario Human Rights Code.

There is no dispute that the applicant received her entitlements under the severance package.

Submissions

4The applicant submitted that she had been diagnosed with cancer in 2010 and had been treated with chemotherapy and surgery. She returned to work in June 2011, but in September 2011 suffered a recurrence of the cancer. She resumed treatment in November 2011 and was undergoing her second course of chemotherapy in January 2012. The applicant submitted that she was suffering from depression at the time, which is one of the side effects of chemotherapy. She also stated that she was suffering from “chemo brain” at the time, which is the term used to describe the negative effect chemotherapy can have on patients’ cognitive functions. The applicant stated that she was referred to the Psycho-Social Department at Princess Margaret Hospital after the termination of her employment. The applicant stated that her husband was ill and suffering from dementia and could not assist her with the decision with which she was faced. The applicant submitted that she wanted to continue her employment, but could not manage the commute to the International Boulevard location from her home in Oshawa. The applicant stated that her intention was to move closer to the new work location, which would also require making new health care arrangements for her husband. She was unable to obtain new accommodation and health care by February 1, 2012 and felt she had no choice but to accept the severance package. In that regard she noted that the letter setting out her options contained the sentence “Failure to provide a written decision will be deemed as acceptance of the severance package”.

5The applicant’s employment terminated on March 30, 2012. Following the termination of her employment with the respondent, her husband’s health, unfortunately, continued to deteriorate. The applicant submitted that her husband had several serious health conditions, which required many appointments and left the applicant feeling distraught. The applicant stated that her husband broke his pelvis in January 2013 and needed to be placed in a long term care facility. The applicant stated that she could not locate a spot for him and the hospital simply discharged him. The applicant stated that her husband passed away in late May 2013 and that she was in such a bad state that she could not deal with the funeral. The applicant submitted that she was aware of the Tribunal, but found the process too complicated. Nonetheless, she went back to the Tribunal’s website in August 2013 and filed this Application.

6The respondent submitted that it offered a choice of continued employment or a severance package to those employees for whom the change in work locations would result in a significantly longer commute. Other employees were simply directed to report to work at the new location. The respondent submitted that the applicant did not establish that she did not have the capacity to understand the severance package and release the respondent presented to her or the capacity to file an application in timely manner. Respondent’s counsel expressed sympathy for the applicant’s difficult circumstances and the loss of her husband, but noted that the applicant’s assertions were not supported by any medical evidence, as is required to find a lack of capacity. The respondent submitted that the applicant had not provided sufficient reason to set aside the release she signed or an explanation that establishes that the delay in filing the Application was incurred in good faith, as is required under section 34(2) of the Code.

Analysis and Decision

Abuse of Process

7The Code does not explicitly bar Applications where an applicant has executed a release in favour of the respondents. See Bielman v. Casino Niagara, 2009 HRTO 123. Section 23(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, however, provides that the Tribunal may make such orders or give such direction in proceedings before it as it considers proper to prevent an abuse of its processes. The Tribunal has found on a number of occasions that filing a human rights Application after executing a full and final release can amount to an abuse of process and dismissed the applications in question. See, for example, Shams v. Genivar Inc., 2012 HRTO 163, and Perricone v. Fabco Plastics Wholesale, 2010 HRTO 1655.

8First, it is necessary to consider whether language used in the release encompassed claims under the Code. In my view, the release language contained in the first paragraph, quoted above, included claims under the Code and, in any event, the applicant agreed in the second quoted paragraph that she had no Code claims arising out of her employment or the termination of her employment and would not file a human rights complaint. I find therefore that the release covered claims under the Code.

9In Pritchard v. Ontario (Human Rights Comm.), 1999 CanLII 15058, 35 C.H.R.R. 39 (ON S.C.), 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, and concerned access to the since repealed investigative procedure of the Ontario Human Rights Commission, rather than the right to an oral hearing before the Tribunal. 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.

10The Court of Appeal for Ontario described the elements of duress in a recent case, Taber v. Paris Boutique & Bridal Inc. (Paris Boutique), 2010 ONCA 157, at para. 9:

[N]ot 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. In 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.

11I find that none of the Pritchard factors, or any other factors that might warrant overriding the language of the release, have been established in this case.

12The applicant stated that she was suffering from depression and from the side-effects of chemotherapy. There is no doubt that the applicant was facing difficult personal circumstances in January 2012 and I certainly sympathize with her predicament. She did not, however, state that she did not understand the terms of the severance package the respondent offered her or the “Acknowledgement and Release” that she executed in favour of the respondent. Her submissions indicate that she understood the situation, i.e., that she could continue her employment with the respondent at the International Boulevard or accept a severance package.

13The applicant stated that she would have preferred to continue her employment, but could not make new housing and care arrangements for her and her husband before the deadline for informing the respondent of her decision. Consequently, she felt that she had no choice but to accept the severance package. The deadline imposed by the respondent, however, was simply for the applicant to inform it of her decision. The respondent did not require the applicant to change residences and any deadline for doing so was imposed by the applicant on herself. The respondent provided the applicant with additional time to make her decision and, in any event, the change of work locations was not to take effect until April 2, 2012. There is no indication that the applicant raised these concerns with the respondent. In my view, if the applicant felt she had no choice but to accept the severance package and release, it was not because of any undue pressure the respondent placed upon her. The applicant accepted the severance offer and the respondent has paid her the funds to which she was entitled. Consequently, I find that there is no basis for setting aside the release. To allow the Application to proceed in light of the clear language of the release would amount to an abuse of process.

14As I have found that allowing the Application to proceed would be an abuse of process, it is unnecessary to address the delay issue. The Application is dismissed.