Robin Qu v. The Corporation of the City of Mississauga, Dan Ferguson, Louise Ann Riddell and Sharon Willcock, 2014 HRTO 1152

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Robin Qu

Applicant

-and-

The Corporation of the City of Mississauga, Dan Ferguson, Louise Ann Riddell and Sharon Willcock

Respondents

DECISION

Adjudicator: Paul Aterman
Date: July 31, 2014
Citation: 2014 HRTO 1152
Indexed as: Qu v. Mississauga (City)

APPEARANCES

Robin Qu, Applicant

Self-represented

The Corporation of the City of Mississauga, Dan Ferguson, Louise Ann Riddell and Sharon Willcock, Respondents

Graham Walsh, Counsel

Background

1This Decision explains why the Tribunal is dismissing the present Application, which alleges reprisal contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The applicant worked for the corporate respondent as a health and safety specialist. In May of 2012 he was assigned to investigate an incident. A concern had been raised that a racialised employee of the corporate respondent had made certain statements that could be interpreted as threatening violence in the workplace. The applicant alleges that he investigated the incident, came to the conclusion that it did not raise a health and safety concern and wrote his report on the incident accordingly. He says that his conclusion coincided with the conclusion of a police investigation into the incident which took place in parallel with his investigation.

3The applicant alleges that the respondent Dan Ferguson, his then supervisor, initially approved the report but later asked him to change its conclusions. The applicant maintains that there was no reason to do so, that doing so would have violated the Code rights of the employee under investigation and he refused. He alleges that he was then told by Mr. Ferguson that this would be his last investigation as a health and safety specialist.

4The applicant says that on June 1, 2012 he removed the conclusion of his report and Mr. Ferguson substituted his conclusion for that of the applicant. After this occurred there was an email exchange between the applicant and Mr. Ferguson about this issue. Some months later, in February 2013, the applicant’s employment was terminated without cause. The applicant maintains that because he resisted changing his report, the respondents dismissed him from employment and that this was a reprisal contrary to the Code.

5The respondents have not yet filed a Response. They request dismissal of the Application on the ground that the termination of the applicant’s employment was arrived at on terms that included a severance package and a full and final release by the applicant. The release precludes him from bringing this Application.

6The severance package was the subject of negotiations between the applicant and the corporate respondent. The applicant did not sign the initial offer in February of 2013, but did sign a revised version, along with the release, on March 6, 2013. That version included terms that were more favourable to the applicant.

7The severance offer and the release, which is a separate document, both state that the applicant had an opportunity to obtain legal advice. The release states that the applicant fully understands the terms of both documents and that he releases the corporate respondent and all of its employees from any claim under the Code.

8The applicant argues that his Application should continue in the Tribunal’s process because he signed the offer and release under duress and was unable to obtain legal advice.

9I do not accept the applicant’s argument and the reasons below explain why.

analysis

10The 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.

11In 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.

12The decision in Pritchard v. Ontario (Human Rights Comm.), 1999 CanLII 15058 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.

13The applicant relies on a recording he made of negotiations between him and the personal respondent Louise Ann Riddell on February 19, 2013 to support his argument. In the recording he asks for more time to decide whether to accept the offer because he is under medication, cannot sleep well and his doctor has recommended that he not make a decision at this time, “…especially for this major decision that could impact the rest of my life”. It is evident to me from the latter statement and the way in which the applicant approached the question of negotiating an extension of time to decide that he understood the significance of the release.

14The applicant was in fact given more time because negotiations continued and resulted in the revised offer and release being signed on March 6, 2013.

15The severance package provided the applicant with compensation in excess of what is required by statute, continued access to benefits and participation in a pension plan for six months following the end of employment, as well as career counselling. The applicant may not now be satisfied with the terms he agreed to, but he has not shown that the package does not amount to sufficient and fair consideration for signing the release.

16The applicant maintains that his signature of the release was obtained through economic duress. He states that he had to continue paying a large mortgage or he would lose his house. In addition, his daughter was enrolled in a private school and he had to continue paying her school fees.

17The 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.

18Mortgage payments and private school fees were undoubtedly economic pressures that the applicant considered in making his decision, but the need to meet obligations of those kinds reflect choices on the part of the applicant about education for his daughter and the kind of home he wanted to preserve for himself and his family. These pressures, in my opinion, did not amount to a coercion of his will.

19The applicant maintains that at the time the severance was being negotiated he was depressed and was taking medication that impaired his judgement. I accept that he was being prescribed anti-depressants at the time, and 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 emotional and psychological pressures on him were so great as to amount to a coercion of his will. The medical evidence he introduced does not support a conclusion that he could not make choices for himself at the time he signed.

20Regarding his claim that he was unable to obtain legal advice, his own statements on the recording reflect the fact that he was given time to consult a lawyer. His reason for not obtaining legal advice was that his counsel was out of the country for a prolonged period of time, but he gave no explanation for why he did not consult any other lawyer.

21There is no basis to conclude that the release was signed under duress and should therefore be set aside. As the release provides for a full and final settlement of any claims arising out of the applicant’s employment with the corporate respondent and all of its employees, including the personal respondents, it would be an abuse of process to allow this Application to continue in the Tribunal’s process.

order

22The Application is dismissed.