Fidelis Ogbue v. Sears Canada Inc. and Lisa Kerr, 2014 HRTO 1519

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Fidelis Ogbue

Applicant

-and-

Sears Canada Inc. and Lisa Kerr

Respondents

DECISION

Adjudicator: Mark Hart

Date: October 10, 2014

Citation: 2014 HRTO 1519

Indexed as: Ogbue v. Sears Canada Inc.

APPEARANCES

Fidelis Ogbue, Applicant

Self-represented

Sears Canada Inc. and Lisa Kerr, Respondents

Lia Preyde, Counsel

1This is an Application filed on January 24, 2014 alleging discrimination with respect to employment because of race and colour contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The respondents raised a preliminary objection in this matter on the basis that the applicant had signed a full and final release on February 7, 2013, following the termination of his employment on January 31, 2013.

3By letter dated May 6, 2014, the Tribunal advised the parties that a teleconference hearing would be scheduled to address the respondents’ request that the Application be dismissed.

4The teleconference hearing was held on July 17, 2014, at which I heard oral submissions from the parties on the issue before me.

5The applicant’s employment with the corporate respondent (“Sears”) was terminated by letter dated January 31, 2013. At that time, the applicant had worked for Sears for 14 years and 10 months. The applicant was advised in this letter that he would continue to be paid his regular wages for a period of eight weeks, as well as vacation pay for accrued and unused vacation time up to the end of that period. He also was offered a separation payment to be paid at the end of the eight week period in an amount representing 22 weeks of regular wages, on the condition that he sign a Settlement & Release Agreement.

6The Settlement & Release Agreement was signed by the applicant on February 7, 2013. This document includes the following language:

Fidelis Ogbue…agree[s] to hereby release and forever discharge Sears Canada Inc…. from any and all actions, causes of action … howsoever arising, whether statutory or otherwise, and specifically including any claim under the … Human Rights Code.

I agree not to make any claims or demands, or commence, maintain or prosecute any action, cause or proceeding for damages, compensation, loss or any other relief whatsoever against Sears arising out of my employment with Sears or the termination of that Employment. I further agree that this Settlement and Release Agreement shall operate conclusively as an estoppel and complete bar in the event of any such claim, action or proceeding, and may be plead as such, and that I will be liable to Sears for its costs and expenses, including reasonable legal fees, incurred in responding thereto. For clarity, I further agree that, as a condition of this Settlement and Release Agreement, I will take all necessary steps to ensure the withdrawal or dismissal of such claim or complaint.

And for the said consideration, I hereby confirm that I have considered whether I have any possible claim against Sears in respect of the Ontario Human Rights Code, and confirm that I either have no such claim or that this Settlement and Release Agreement expressly compensates me for any such claim and that I seek no further right or remedy in respect of any possible claim.

I declare that I fully understand the terms of the Settlement and Release Agreement and have had the opportunity to obtain independent legal advice prior to executing this document, and that I have signed this document freely, voluntarily and without constraint.

(emphasis added)

7Section 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. See also Rule A8.1 of Social Justice Tribunals Ontario Common Rules found in Part 1 of the HRTO’s Rules of Procedure.

8This Tribunal has found that it would be an abuse of process to allow an Application to proceed where the applicant has signed a full and final release, in the absence of exceptional circumstances: O’Regan v. Firestone Textiles, 2010 HRTO 502; Perricone v. Fabco Plastics Wholesale, 2010 HRTO 1655; Cuba v. Global Egg Corporation, 2011 HRTO 1121.

9In Perricone, above, this Tribunal recognized that parties to a settlement are prevented from litigating settled matters, stating (at para. 39):

When two parties contract to settle legal matters between them, the principle of finality demands that the contract be given effect and prevents parties from litigating settled matters, unless there are compelling reasons to set the contract aside altogether.

10It is not this Tribunal’s role to assess the appropriateness of the settlement agreement between the parties or to consider whether the settlement agreement addresses all of the issues raised in the Application. Rather, the issue to be determined is whether the settlement agreement is legally binding and final: see King v. Ontario (Health and Long-Term Care), 2011 HRTO 2228.

11While a settlement may be set aside if an applicant was under duress at the time he signed it, the test for whether a person has signed a settlement under duress is high and requires an element of threat or coercion. While economic duress is a factor that may be considered, financial difficulties alone are not sufficient to establish economic duress. An applicant must establish that his need was so serious that he had no other option but to sign the settlement: see Kailani v. Securitas Canada, 2009 HRTO 1183.

12The respondent points out that the severance package offered to the applicant exceeds his statutory minimum entitlements under the Employment Standards Act 2000, S.O. 2000, c.41 under which the applicant would only have received eight weeks of termination pay and an additional 14 weeks of severance pay. By signing the Settlement & Release Agreement, the applicant obtained the benefit of an additional eight weeks of severance pay over and above his minimum statutory entitlements.

13The applicant states that he was upset when he learned that his employment was being terminated. He states that Sears representatives called him several times to follow up as to whether or not he would be signing the agreement. He further states that he went in to the Sears premises on February 7, 2013, and he was told that if he did not sign the agreement, he would not receive the full benefit of the offer. He says that he was in a state of emotional shock, although he acknowledged that he did not go to see a doctor at the time and he did not submit any medical reports to the Tribunal in support of this assertion. He states that his wife was undergoing cancer treatment at the time, and that he needed the money to pay his mortgage and other bills. He states that he did not sign the agreement in order to waive his rights. His position, which is disputed by the respondent, is that he was not provided with a copy of the agreement at the time he was notified of the termination of his employment on January 31, 2013, but only received a copy when he went in and signed the agreement on February 7, 2013.

14I am sympathetic with the applicant’s situation, and particularly appreciate his concern regarding his wife’s medical condition. I also understand that mortgages and other bills need to be paid. Those circumstances, however, are not a sufficient basis in order to override the very clear language of the agreement, under which the applicant expressly agreed not to pursue any claim under the Code and upon which Sears relied in providing him with the full benefit of the offered severance package. In my view, even accepting the applicant’s position at face value, the circumstances of this case do not qualify as duress, in that the applicant has not satisfied me that his need was so serious that he had no other option but to sign the agreement.

15Accordingly, the Application is dismissed as an abuse of process on the basis of the terms of the Settlement & Release Agreement dated February 7, 2014.

ORDER

16For all of the foregoing reasons, I hereby make the following order:

a. the Application is dismissed as an abuse of process on the basis of the terms of the Settlement & Release Agreement dated February 7, 2014.