Nolan v. Royal Ottawa Health Care Group, 2014 HRTO 1604

Human Rights Tribunal of Ontario

B E T W E E N:

Craig Nolan

Applicant

-and-

Royal Ottawa Health Care Group

Respondent

-and-

Ontario Public Service Employees Union

Intervenor

DECISION

Adjudicator: Jo-Anne Pickel

Date: October 30, 2014

Citation: 2014 HRTO 1604

Indexed as: Nolan v. Royal Ottawa Health Care Group

APPEARANCES

Craig Nolan, Applicant

Russell MacCrimmon, Counsel

Royal Ottawa Health Care Group, Respondent

Michelle O’Bonsawin, Counsel

Ontario Public Service Employees Union, Intervenor

Danny Kastner, Counsel

1The applicant filed an Application alleging that the respondent and his union both discriminated against him contrary to the Human Rights Code, R.S.O. c. H. 19, as amended (the “Code”). Specifically, the applicant alleged that the respondent and his union discriminated against him because of disability and sexual orientation from August 2011 to January 2013. Among other things, the applicant alleged that the respondent discriminated against him by refusing to allow him to return to work until he underwent further medical assessments, by making unfair and prejudicial comments to a medical practitioner who was retained to perform an independent medical evaluation, and by requiring him to take part in a return to work program which included retraining and a probationary period.

2By Interim Decision, 2014 HRTO 1040, the Tribunal dismissed the Application as against the union. This Decision addresses whether the Application against the respondent should be dismissed on the basis of abuse of process due to the applicant’s signing of a Memorandum of Agreement (“MoA”) which included a full and final release.

3The Tribunal held a preliminary hearing to address the issue. While the Tribunal often does not hear oral testimony in cases involving a full and final release, I determined that it was appropriate to provide the applicant with the opportunity to give oral evidence regarding the circumstances surrounding his signing of the MoA and his mental state at the time he signed the MoA. I found that the most fair, just and expeditious way to proceed was for the Tribunal to hear the applicant’s evidence and for the other parties to have the opportunity to cross-examine the applicant. I advised the parties that I would only hear oral evidence from the respondent and/or union if I found that I required responding evidence from these parties. Based on my conclusions below, I do not find it necessary to hear oral evidence from either the respondent or the union in this case.

4Following my Interim Decision, the applicant’s union, the Ontario Public Service Employees Union, requested a right to intervene in the preliminary hearing. The Tribunal granted the union’s request. I permitted the union’s counsel to cross-examine the applicant and to make submissions at the preliminary hearing.

5At the preliminary hearing, I heard testimony from the applicant and Kevin James, the applicant’s spouse. I also admitted into evidence written materials introduced by the applicant, the respondent and the union.

6Based on the applicant’s testimony and the materials admitted at the preliminary hearing, I accept that the applicant filed his Application out of a sincere desire to return to a job that he loved. However, for the reasons set out below, I find that proceeding with the Application would be an abuse of process in the circumstances of this case.

Factual Background

Background to the Applicant’s Employment

7The applicant was employed by the respondent as a Registered Practical Nurse.

8His employment was covered by the terms of a collective agreement between the respondent and his union. In 2009, the applicant filed two grievances under the collective agreement alleging that the respondent had discriminated against him. He also alleged that the respondent failed to provide reasonable accommodations and a workplace free of harassment and discrimination. The union retained legal counsel for the arbitration of these two grievances. The applicant was in contact with the union’s legal counsel about the arbitration of the grievances. However, the arbitration ended up being adjourned due to the applicant’s inability to proceed with a hearing.

9The applicant went on a disability leave from October 2009 to August 2011 due to an ankle injury as well as depression, anxiety and stress. In August 2011, his doctor advised the respondent that he was fit to return to work.

10On August 18, 2011, the applicant filed a third grievance in which he alleged that the respondent was continuing to violate the collective agreement’s guarantee of a workplace free of harassment and discrimination. The applicant’s August 18, 2011 grievance related to the events set out in the Application all of which center on the respondent’s alleged failure to accommodate the applicant. The union put the grievance on hold pending discussions between the parties in regards to the applicant’s return to work.

11The applicant, his union and the respondent engaged in discussions relating to the applicant’s return to work between September, 2011 and December 2012. During these discussions, the applicant received assistance from Brent Rathwell, a return to work contact with the union.

Return to Work Process

12On September 6, 2011, the applicant’s family doctor filled out a Functional Abilities Form (“FAF”) indicating that he was able to meet the demands of his job under certain conditions.

13On December 20, 2011, the respondent requested two independent medical examinations before it would permit the applicant to return to work. It sought an independent psychiatric examination from Dr. Kenneth Suddaby and a Functional Capacity Evaluation from Limestone Health Consultants. Dr. Suddaby initially assessed the applicant in January 2012 and referred the applicant for psychological testing.

14In a neuropsychology report dated June 8, 2012, Dr. Peter Judge concluded that the applicant was capable of functioning normally in his position as an RPN. Dr. Judge stated that the applicant’s depression was in remission and that he appeared capable of engaging and managing clients in a therapeutic relationship. Dr. Judge noted that the applicant did present with borderline capabilities across most spheres of cognitive function. However, he concluded that despite these longstanding limitations, the applicant reported an uneventful work history prior to his disability leave. This reference to borderline cognitive function appears to be a reference to the applicant’s memory functions which Dr. Judge found borderline for the applicant’s age. Despite these borderline memory functions, Dr. Judge stated that the applicant presumably was able to function adequately in his position prior to his disability leave. As a result, Dr. Judge concluded that the applicant was capable of returning to his position.

15By letter dated June 27, 2012, Dr. Suddaby advised the respondent that he concurred with the conclusions contained in Dr. Judge’s report. He emphasized that the applicant’s cognitive limitations and underlying charactological/interpersonal difficulties were long standing in nature. Therefore, Dr. Suddaby concurred with Dr. Judge’s conclusion that there was no evidence of any psychiatric/medical impairment that would prevent the applicant from returning to his full duties without restrictions.

16Before the applicant returned to work, the respondent required that the applicant take part in a nursing assessment and orientation as well as a return to work program. The respondent also required him to obtain a new FAF since his last FAF had been completed more than a year prior. The applicant provided the new FAF on October 9, 2012.

17Mr. Rathwell met with the applicant several times over the course of the fall of 2012. On October 29, 2012, the applicant wrote to Mr. Rathwell to thank him for doing an excellent job in assisting him with the return to work process. The applicant asked Mr. Rathwell to speak to the respondent’s occupational health nurse and to get back to him with any further return to work requests.

18On November 19, 2012, Mr. Rathwell advised the respondent by e-mail that the union was consolidating the applicant’s three grievances and referring them to arbitration. The applicant was copied on Mr. Rathwell’s e-mail which had the subject line “Grievances”. Although he was copied on the e-mail, the applicant testified that he did not see it in his inbox and did not read it. Subsequent e-mails confirm that the union had retained counsel to proceed with the scheduling of an arbitration for the applicant’s grievances. By e-mail dated November 29, 2012, which again had the subject line “Grievances”, Mr. Rathwell advised the applicant that the union had consolidated his grievances, retained a lawyer and approached an arbitrator for the arbitration. At the hearing, the applicant testified that he had not seen this e-mail.

Respectful Workplace Complaint

19On December 14, 2012, the respondent advised the applicant that it has received a complaint against him that was made under its Respectful Workplace policy. The respondent suspended the applicant from duty without pay while it investigated the complaint. The respondent stated that, after reviewing the circumstances, it would determine what, if any, disciplinary action would be taken against the applicant up to and including termination of employment.

20At the time that he received the respondent’s letter, the applicant was not aware of the basis for the complaint. He later found out that the complaint related to a text message he sent to the respondent’s occupational health nurse in which he told her that, if they could not come to some kind of agreement to end whatever problem she had with him, he would report her to the College of Nurses.

Memorandum of Settlement

21The applicant’s union and the respondent entered into a MoA, signed by the applicant, and dated December 19, 2012. The document is two pages long with the signature lines on the third page.

22Under the MoA, the applicant’s employment with the respondent was severed in return for a significant period of salary continuation as well as an amount identified as general damages in settlement of the human rights portion of the applicant’s grievances.

23The applicant testified that Mr. Rathwell phoned him on December 19, 2012 and told him that he had papers for him to look at. Mr. Rathwell arrived 5-10 minutes later. The applicant testified that Mr. Rathwell threw papers on his kitchen table and told him to read and sign them. The applicant testified that he flipped through the document but that he could not read it because he was too distraught. The applicant testified that Mr. Rathwell said the document was a “memorandum” but that he did not understand what that meant. According to the applicant, Mr. Rathwell told him that if he did not sign the document, there was nothing more the union could do and that the respondent would fire him.

24The applicant testified that he flipped through the document, read “bits and pieces”, and then signed it. When asked which bits and which pieces he read, the applicant stated that he may have read the first line and he signed the last page. In cross-examination, he testified that he was too frustrated to read the document. When he was asked whether he asked Mr. Rathwell any questions about the document, the applicant said he had not. When the applicant was asked if he told Mr. Rathwell he was having difficulty reading the document, he said he did not but that it would have been obvious to Mr. Rathwell that he could not understand the document. When I followed up to ask why he thought it would have been obvious to Mr. Rathwell that he did not understand the document, the applicant stated that since he just flipped through the document it should have been obvious to Mr. Rathwell that he did not read it.

25When asked in cross-examination why he would sign the MoA if he did not know what it was, the applicant testified that he only knew it would put an end to the respondent’s harassment. When the union’s counsel suggested to the applicant, in cross-examination, that he understood the document would put an end to the harassment because he understood that the document would sever his employment with the respondent, the applicant disagreed. He testified that he did not believe he was aware of that at that point.

26In examination-in-chief, the applicant testified that he had told Mr. Rathwell a month prior that he did not want to take “a package” and that he did not want to leave his employment. He testified that he was surprised, upset and disgusted to see that Mr. Rathwell had not listened to him when he presented him with the papers at his house on December 19, 2012. The union’s counsel put to the applicant in cross-examination that the fact that he was upset and disgusted and felt the document was contrary to his wishes implied that he knew the MoA involved the severance of his employment with the respondent. The applicant disagreed and again stated that he did not believe he knew that at that time. When asked what caused his frustration with Mr. Rathwell, the applicant stated he was frustrated because Mr. Rathwell had brought the document to him after he had told Mr. Rathwell that he was not interested in a settlement from the respondent.

27The applicant testified that, at the time he signed the MoA, he could not concentrate due to his depression and that he was distraught because a good friend of his had recently been diagnosed with terminal cancer.

28The applicant stated that Mr. Rathwell was only at his home for a maximum of 10 minutes. During the time that Mr. Rathwell was at the applicant’s house, the applicant’s spouse was in the next room. In cross-examination, the applicant agreed that he could have had his spouse read the document but he did not. The applicant also agreed in cross-examination that he could have requested more time to review the document but he did not. Mr. Rathwell did not leave a copy of the MoA and only e-mailed it to the applicant on January 16, 2013. In cross-examination, the applicant agreed that he did not contact Mr. Rathwell to get a copy of the MoA. The applicant testified that he did not read the MoA until sometime in March, 2013.

29When asked in examination-in-chief why he felt he was fit to return to work if he was having issues with his mental health in the fall of 2012. The applicant testified that he was fit to return to work in the fall of 2011 but that the fifteen month delay in his return to work caused him frustration and caused him to return to a depressed state. He testified that he did not think he was fit to work at the time he signed the MoA in December 2012.

30When asked in examination-in-chief why he signed the MoA, the applicant testified that he felt he had no choice and that he felt like he had “a gun to [his] head”. He testified that he felt pressured because Mr. Rathwell told him his employment would be terminated and the union might not be able to do anything for him. In cross-examination, the applicant agreed that the respondent had advised him that it would consider discipline up to and including termination depending on the results of its investigation of the respectful workplace complaint it had received. In cross-examination, the applicant agreed that this complaint was likely what Mr. Rathwell was referring to when he made the comment about possible termination of employment. In cross-examination, the applicant agreed that Mr. Rathwell had not told him that the union would cancel the arbitration of his grievances if he did not sign.

31Mr. James, the applicant’s spouse, testified that the applicant was anxious and depressed when he signed the MoA in December 2012. He testified that he knew the document that Mr. Rathwell brought over was a settlement agreement but that he did not think the applicant knew what he was signing. Mr. James also testified that, when Mr. Rathwell was at their house, the applicant said he did not want to sign because he wanted to go back to work. Mr. James testified that Mr. Rathwell told the applicant he should settle his case and, if he did not sign, he would be fired. Mr. James testified that the next day the applicant said “what have I signed” and he said he should not have signed anything.

32When asked in cross-examination why he let his spouse sign the MoA if he felt that he did not understand what he was signing, Mr. James stated that it was the applicant’s choice and he had to make his own life choices. He stated that, as far as he was concerned, if the applicant chose to sign and not go back to work that was fine, if chose to go back to work that was fine too. In cross-examination, Mr. James agreed that he would have stepped in if he felt that the applicant did not have the mental capacity to sign the document.

Additional Medical Evidence

33The applicant sought to admit additional medical evidence relating to his health status when he signed the MoA in December 2012. The Tribunal admitted into evidence a copy of a medical note dated September 9, 2014 from the applicant’s treating physician. The note stated in its relevant part as follows:

This patient has suffered from severe anxiety, depression and physical issues for years; note that these were present at the time of his signing this Release form. Also during this time he was dealing with a dying friend.

This patient reports to me that when he signed the Release form, he was unable to comprehend the meaning and consequences of signing this Release form; he reports retrospectively, that his mental health and physical issues (chronic headaches and sinus infections), made it impossible for him to read and understand the form to a level that he needed to make a proper decision.

34The applicant testified that he was referred to a specialist for his chronic migraines. The Tribunal entered into evidence two MRI reports, one dated March 17, 2014 and the other dated July 8, 2014. The March 17, 2014 report indicated that the applicant had a small chronic infarct in his left cerebellar hemisphere. There is also a handwritten notation on the report which states “done - nothing serious on follow up in July/14”. The July 8, 2014 report notes the existence of the same cerebellar infarct. The report includes a handwritten notation which states “essentially N”, with the “N” circled. In cross-examination, the respondent’s counsel suggested to the applicant that, in the medical world, an N with a circle means “normal”. However, the applicant stated he had no knowledge of what a circled N means.

35The applicant testified that he believes he had the infarct in December 2012. He testified that he also has a tumour in his ear that caused him to have concentration problems. Although there is no record of it, the applicant testified that he was taking anti-depressant medication in December 2012.

Other Minutes of Settlement Signed

36In cross examination, the applicant was asked about a statement of claim he filed against the respondent’s insurance provider. The applicant agreed that he signed minutes of settlement to resolve the claim. While the respondent’s counsel stated that it was her understanding that the applicant signed the minutes of settlement in September 2012, the applicant testified that he did not remember when he signed them and it might have been after he signed the December, 2012 MoA. He testified that he had legal -advice prior to signing the minutes of settlement to settle his claim against the insurance provider.

37In cross-examination, the applicant agreed that he had signed minutes of settlement in March 2009 to resolve grievances he had filed against the respondent. The applicant agreed that he understood that the minutes of settlement would put an end to his grievances. When the respondent suggested that it was difficult to believe he did not understand what he was signing in December 2012 when he had in fact signed minutes of settlement previously, the applicant stated that he was not suffering from a mental disability when he signed the 2009 minutes of settlement.

Parties’ submissions

38The applicant submitted that it would not be an abuse of process to proceed with his Application despite his signing of the MoA which included a full and final release. The applicant submitted that he should not be bound by the release because of the following:

a. He was under extreme duress when he signed the MoA because he had been seeking a return to work for fifteen months, the respondent continued to interfere with his proper and timely return to work, the respondent threatened him with termination of employment due to the respectful workplace complaint, and his union representative insisted he sign the MoA or else the respondent would terminate his employment; and

b. He did not understand the meaning and consequences of signing the MoA at the time due to his anxiety and depression at the time he signed the MoA and the fact that a good friend of his had just been diagnosed with terminal cancer.

39The applicant’s counsel submitted that the applicant felt like he “had a gun to his head” and that he felt like he had no other choice but to sign the MoA. The applicant’s counsel submitted that the pressure put on the applicant to sign the MoA was a continuation of the discrimination he complained of in his Application.

40The applicant relied upon the Court of Appeal’s decision in Pritchard v. Ontario (1999), 1999 CanLII 15058 (ON SCDC), 45 OR (3d) 97 (Div. Ct.) (“Pritchard”). He also relied upon the Tribunal’s decisions in Bielman v. Casino Niagara, 2009 HRTO 123 (“Bielman”) and Anamguya v. Intercon Security, 2010 HRTO 2464 (“Anamguya”)

41The respondent and the union both submitted that it would be an abuse of process to proceed with this Application due to the full and final release included in the MoA signed by the applicant. The respondent and union both submitted that the applicant failed to establish the level of duress or mental incapacity necessary for the Tribunal to proceed in the face of a full and final release. In support of their position, the respondent and the union relied upon the following Tribunal cases in which the Tribunal has dismissed Applications as an abuse of process due to the existence of a signed full and final release: Karambetsos v. Ontario (Community Safety and Correctional Services); 2014 HRTO 882 (“Karambetsos”); Amendola v. Marriott Hotels of Canada Ltd., 2012 HRTO 2292; Adams v. Community Life Care Inc., 2012 HRTO 1838; Kerkezian v. Donway Place Retirement Home, 2012 HRTO 1581; Shams v. Genivar Inc., 2012 HRTO 163; Perricone v. Fabco Plastics Wholesale, 2010 HRTO 1655 (“Perricone”); Sutton v. United Food and Commercial Workers Canada, Local 175, 2010 HRTO 935; Kailani v. Securitas Canada, 2009 HRTO 1183; Dias v. Baycrest Centre for Geriatric Care, 2011 HRTO 1342; and Dieter v. Transcontinental Printing Inc., 2012 HRTO 2171.

Applicable Law

42Section 23(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S. 22, as amended, provides the Tribunal with the power to make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes. The Code does not explicitly bar applications where a release has been signed by an applicant. See Bielman, above, at para. 10. However, in several cases, the Tribunal has found that filing a human rights application after signing a full and final release in respect of the subject-matter of the application may constitute an abuse of the Tribunal’s process and, where that is the case, such applications should be dismissed. (See cases cited above relied upon by the respondent and union.)

43The reason why the Tribunal may determine that it is an abuse of process to permit an applicant to proceed with an application where he or she has signed a full and final release relates to the principle of finality. When two parties agree to settle a legal dispute, 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. Most litigation ends in settlements and almost all settlements include a provision by which a claimant fully releases the respondent from future claims relating to the subject matter of the settlement. To be effective, settlements must be final. Otherwise, parties would have no incentive to enter into settlements to end litigation. It is for this reason that this Tribunal has held that it would be an abuse of process to proceed with an Application when its subject matter is covered by a full and final release, unless there are compelling reasons to set aside the release.

44In Pritchard, above, the Divisional Court set out at para. 17 some of the relevant factors to consider under the old Code when deciding whether a human rights claim is barred by the signing of a full and final release:

Undoubtedly, in some cases, an employee who has accepted a sum of money in exchange for a release of claims against a former employer, including human right claims, would be acting in bad faith in subsequently turning around and filing a human rights complaint. However, in other cases, the facts may show that the employee misunderstood the significance of the release, or received little or no consideration for it beyond statutory entitlements under employment standards legislation, or was in such serious financial need that she or he felt there was no choice but to accept the package offered.

45In several cases, 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, for example, Karambetsos, above, para. 12. In addition, to the factors set out in the paragraph above from Pritchard it is well accepted that a release may also be set aside if there is evidence of psychological or emotional pressure amounting to duress.

46In assessing claims of economic duress, the Tribunal has relied in several decisions on the description of economic duress provided by the Court of Appeal for Ontario in Taber v. Paris Boutique & Bridal Inc. (Paris Boutique), 2010 ONCA 157 (“Taber”) 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.

47In Stott, the court held that in order for economic duress to be found, the party who is being illegitimately pressured must be put in a position where he or she has no “realistic alternative” but to submit. For cases, relying upon this description of economic duress see, for example, Perricone, Dias, Karambetsos cited above.

Findings

48Having considered the testimony given, and evidence admitted, at the preliminary hearing as well as the parties’ submissions, I find that it would be an abuse of process for the Tribunal to proceed with the Application in the circumstances of this case.

49In assessing credibility and reliability in this case, I have applied the traditional test set out by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 DLR 354. In particular, when assessing the credibility of the applicant and Mr. James I have considered whether their testimony was “in harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable” in the circumstances.

50I begin by noting that it was not disputed at the hearing that the release contained in the MoA signed by the applicant covered the subject matter of this proceeding.

51As noted above, the applicant advanced two reasons why his Application should be allowed to proceed in spite of the release: (1) extreme duress and (2) his failure to understand the meaning and consequences of signing the MoA. I will address both of these factors in turn, starting with the second one.

Failure to Understand Meaning and Consequences of Signing MoA

52The applicant’s submissions under this heading were that he did not understand what he was signing when he signed the MoA and/or that he did not understand the consequences of signing the MoA in the sense that, by signing, he was agreeing to the severance of his employment with the respondent.

53At the outset, it is worth noting that the fact that the applicant chose not to read the MoA is not a reason to find that he should not be bound by it. As noted by the Tribunal in several decisions, a party to a legal agreement who has entered into it without taking the time to review it cannot then rely on their own actions as a basis to resile from the agreement. See, for example, Perricone at para. 69. and Karkesian at para. 20. Therefore, to the extent that the applicant testified that he did not read the MoA, I do not accept that this is a reason to find that he is not bound by it.

54I now turn to the applicant’s submission that he did not understand the meaning and content of the MoA due to his mental state at the time he signed it.

55I begin by noting that the Tribunal has stated in the past that an applicant must meet a high threshold to establish that he or she did not appreciate the significance of signing a release by reason of mental illness or disability. See, Kerkesian at para. 26 and cases cited therein.

56At times in his testimony, the applicant claimed he did not know that the document he was signing was a settlement agreement. For example, he testified that he was not aware what the document was but only knew it would put an end to the harassment from his employer. He also testified that Mr. Rathwell told him the document was a “memorandum” but that he did not understand what that meant. Mr. James testified that, while he knew that the document was a settlement agreement, he did not think the applicant knew this at the time he signed it.

57I do not find it credible that the applicant did not know that the document he was signing was a settlement agreement for several reasons. First, the evidence from the applicant and Mr. James on this point conflicts with their evidence at other points in their testimony. For example, when asked in cross-examination what caused his frustration with Mr. Rathwell, the applicant stated that Mr. Rathwell had brought the document to him after being told that he was not interested in a settlement from the respondent. He made the same statements in his Application and Reply. These statements clearly imply that the applicant knew that the document he was signing was a settlement agreement. As well, when asked in cross-examination which portions of the document he read, the applicant stated that he may have read the first line and he signed the last page. The first line of the MoA is a heading that says “Memorandum of Agreement”. While Mr. James testified that he did not think the applicant knew he was signing a settlement agreement, he also testified Mr. Rathwell told the applicant he should settle his case and that if he did not sign he would be fired.

58In addition, the applicant had experience with the grievance process at the time he signed the MoA. He had filed several grievances prior to the ones settled in the MoA and had signed at least one settlement agreement in the past (in March 2009). Although the applicant testified that he did not have mental health issues at the time he signed the previous MoA, I find it likely that he would have known what a MoA was given his prior grievance history.

59For the above reasons, I do not find it credible that the applicant did not know that the document he was signing was a settlement agreement.

60The applicant also claimed that he did not realize that, by signing the MoA, he was agreeing to the severance of his employment with the respondent. For example, he testified in cross-examination that, while he thought his signing of the MoA would put an end to the harassment from the respondent, he did not believe he was aware at that point that it would sever his employment. Mr. James also testified that he did not believe that the applicant knew the consequences of what he was signing.

61I do not find the evidence from the applicant and Mr. James credible on this point since it conflicts with other portions of their testimony. For example, the applicant testified that he had told Mr. Rathwell that did not want to take a “package” and that he did not want to leave his employment. He testified that he was surprised, upset and disgusted to see that Mr. Rathwell had not listened to him when he presented him with the papers at his house. The necessary implication from this testimony is that the applicant was upset with Mr. Rathwell for presenting him with a proposed settlement that involved taking a severance package and leaving his employment. This conclusion is supported by the applicant’s own statements in his Application and Reply that the applicant “clearly explained to Mr. Rathwell that he had no desire to accept severance from his employment and yet this option was imposed on him.”

62This conclusion is also supported by Mr. James’ testimony that the applicant told Mr. Rathwell that he did not want to sign the MoA because he wanted to go back to work. It is further supported by Mr. James testimony that, as far as he was concerned, if the applicant chose to sign and not go back to work that was fine, if chose to go back to work that was fine too. This testimony supports the conclusion that the applicant knew that by signing he would not be going back to work.

63When considered in the context of the evidence as a whole, I do not find credible the applicant’s claim that he did not understand that one of the consequences of signing the MoA was that his employment would be severed. I find it likely that the applicant knew that he was signing a settlement agreement and that he knew that this agreement meant a severance of his employment relationship with the respondent. As stated by the applicant himself in his testimony, he was upset at being presented with a settlement that meant a termination of his employment because he very much wanted to return to his job, as he had been seeking to do for fifteen months. The applicant felt pressure to sign the agreement in the circumstances and I address this pressure in the next section. However, the pressure the applicant felt does not mean that he did not understand what he was signing. For the reasons set out above, I find that he did know he was signing a settlement agreement that would mean the end of his employment with the respondent.

64To the extent that the applicant submitted that he did not understand the meaning and consequences of the MoA due to a lack of mental capacity, the medical evidence does not support this position. The contemporaneous medical evidence indicated that the applicant was fit to return to work as of August 2011. Specifically, this medical evidence indicated that there was no evidence of any psychiatric/medical impairment that would prevent the applicant from returning to his full duties without restrictions. As noted above, the applicant testified that the fifteen month delay in his return to work caused him frustration and caused him to return to a depressed state. He testified that he did not think he was fit to work at the time he signed the MoA in December 2012 due to depression, anxiety and chronic migraines. He sought to rely upon the September 2014 doctor’s note and 2014 MRI reports discussed above to support his claim that he was mentally incapable of understanding the consequences of the MoA that he signed in December 2012.

65I do not accept the applicant’s claims in this respect for the following reasons. First, while I accept that the applicant suffered adverse effects on his mental health due to the extended return to work process, the contemporaneous medical evidence showed that he was fit to return to work as of the last FAF on October 9, 2012. In October and November 2012, the applicant was actively seeking to return to work. Even at the time he signed the MoA, the applicant testified that he did not want to take a severance package but instead wanted to return to work. All of the contemporaneous medical evidence demonstrates that in December 2012 the applicant was fit, and felt fit, to return to his position as an RPN. I do not find it credible that, if the applicant was fit to return to work to a position that involved significant responsibilities for the care of patients, he was mentally incapable of understanding the consequences of the MoA he had signed.

66None of the medical evidence from 2014 alters my conclusion as to the applicant’s mental capacity in December 2012. The September 2014 note from the applicant’s doctor was prepared over 20 months after the applicant’s signing of the MoA. I prefer the contemporaneous evidence provided from September 2011-October 2012 to subsequent medical evidence prepared long after the events in question. Moreover, the September 2014 doctor’s note does not confirm that the applicant suffered from a mental illness of such seriousness as to render the applicant incapable of understanding the meaning of the MoA or the consequences of signing it. Instead, the note simply stated that this is what the applicant reported to his doctor. For these reasons, I find that the September 2014 note form the applicant’s doctor is insufficient to establish that any mental health issues experienced by the applicant in December 2012 were severe enough to render him incapable of understanding the meaning and consequences of the MoA he was signing.

67I also find that the MRI reports from 2014 do not establish that the applicant was mentally incapable of understanding the MoA. At most, these reports establish that the applicant had an infarct that was causing his migraines. The notation on the March 2014 report indicates that the infarct was “nothing serious on follow up in July/14”. Even if the infarct was causing the applicant migraines and a lack of focus, the evidence does not support his claim that these effects were severe enough to make him incapable of understanding the meaning and consequences of the MoA.

68I note that this conclusion is supported by Mr. James’ testimony. Mr. James testified that he felt like the applicant was free to make his own life choices. While Mr. James testified that the applicant was anxious and depressed at the time he signed the MoA, he also conceded in cross-examination that he would have stepped in if he felt that the applicant did not have the mental capacity to sign the MoA. At no point did the applicant ask Mr. James to review the MoA nor did Mr. James offer to review the MoA.

69For all the above reasons, I do not accept the applicant’s claim that he should not be bound by the release contained in the MoA because he did not understand the meaning and consequences of what he was signing.

Duress

70I now turn to the applicant’s claim that he should not be bound by the release because he signed the MoA under duress.

71It is clear from the case law that not all pressure, whether economic or psychological, amounts to duress. In order to amount to duress, the pressure to sign a settlement must have two elements: (1) it must be pressure that the law regards as illegitimate and (2) it must be applied to such a degree as to amount to “a coercion of the will” in the sense that an applicant had no realistic alternative but to enter into the settlement. See Taber and Stott, above.

72I can appreciate that the applicant felt pressured to enter into the MoA for a variety of reasons. However, for the reasons that follow, I find that there is insufficient evidence to establish that the applicant was subject to the degree and kind of pressure that the law considers illegitimate and that would amount to a coercion of the will.

73As noted above, the applicant submitted that he was under extreme duress when he signed the MoA because he had been seeking a return to work for fifteen months, the respondent continued to interfere with his proper and timely return to work, the respondent threatened him with termination of employment due to the respectful workplace complaint, and Mr. Rathwell insisted that he sign the MoA or else the respondent would terminate his employment.

74Although the applicant testified, graphically, that he felt he had a “gun to [his] head” when he signed the MoA, I find that the evidence does not support his claim that he had no realistic alternative but to sign the MoA. The applicant had a realistic alternative in this case. He could have proceeded with the arbitration of his grievances. As noted above, the union had advised the applicant that it had consolidated his three grievances, retained counsel, and sent out an invitation to appoint an arbitrator. I do not accept as credible the applicant’s testimony that he did not see the two e-mails about this in his inbox. The two e-mails were sent by Mr. Rathwell, the person who had assisted the applicant throughout his lengthy return to work process. The two e-mails bore the subject line “Grievances”. Also, the applicant had been in e-mail contact with Mr. Rathwell up to at least October 29, 2012. Given the applicant’s clearly expressed frustration with the lengthy return to work process, I simply do not find it credible that he would overlook two e-mails from Mr. Rathwell that were titled “Grievances” sent in mid and late November 2012. Moreover, the applicant conceded in cross-examination that Mr. Rathwell had not told him that the union would cancel the arbitration of his grievances if he did not sign. There is no doubt that the applicant was aware that his grievances remained pending. Based on the evidence at the hearing, I also find it likely that the applicant also knew that the union had referred his grievances to arbitration. Therefore, the applicant had a clear alternative to signing the MoA.

75I have considered the applicant’s testimony that Mr. Rathwell told him that his employment would be terminated if he did not sign the MoA. While the applicant testified at the hearing that Mr. Rathwell told him he would be terminated “immediately”, he also agreed that Mr. Rathwell likely was referring to the respondent’s letter about the respectful workplace complaint which referred to termination as a possible outcome. While the applicant no doubt felt pressure from these circumstances, I find that they do not rise to the level of duress in the sense “coercion of the will”. As noted above, the applicant’s grievances were scheduled for arbitration. If he believed that the respondent’s letter regarding the respectful workplace complaint against him formed part of the pattern of discrimination to which he was being subjected, he would have had the option of raising this during the arbitration of his grievances or through the filing of another grievance.

76Although the applicant testified that Mr. Rathwell was at his house for a maximum of 10 minutes, I do not find that the shortness of the meeting in itself provides an indication of duress. The applicant conceded in cross-examination that he could have asked for more time to review the MoA or to consult his spouse about it but he did not. In these circumstances, the short duration of the meeting does not establish that the applicant was subject to any undue pressure amounting to duress.

77The applicant’s counsel sought to analogize the applicant’s case to the circumstances in Anamguya. However I do not agree that the circumstances in this case are in any way analogous to the circumstances in Anamguya. In Anamguya, the applicant was terminated and offered a severance package in return for signing a release. The applicant was homeless and living on the street at the time. He was also unrepresented. Finally, he was affected by a mental disability, for which he was not receiving treatment and which led later to involuntary admission to hospital.

78The applicant’s counsel claimed that the applicant in this case was also “homeless” in terms of his career. Without wanting to downplay how upset the applicant was with his employment situation, his situation was not as dire as that of the applicant in Anamguya. More significantly, unlike the applicant in Anamguya, the applicant in this case had the assistance of his union representative, he had his spouse in the next room who he could consult, and he had the option of pursuing his pending grievances against his employer. For all these reasons, I do not find this case analogous to the circumstances in Anamguya.

79The applicant also sought to rely upon the Tribunal’s decision in Bielman, above. In Bielman, the Tribunal only had the benefit of written submissions from the parties. It found that there was insufficient evidence to conclude that it would constitute an abuse of the process to allow the Application to proceed to be heard on the merits. The Tribunal found that the applicant’s allegations that she acted out of desperation in seeking to avail herself of the voluntary resignation program was directly connected with her allegation that the respondent failed to accommodate her. The Tribunal concluded that it was not appropriate to deal with the release issue as a preliminary issue since the evidence required to deal with this issue as a preliminary objection would essentially be the same as the evidence required to decide the case on the merits. While this may have been the appropriate approach on the particular facts of Bielman, in virtually all cases the Tribunal has dealt with release issues as preliminary issues. (See the other Tribunal cases, other than Bielman, cited in this decision).

80As a final point, although he did not press the issue at the hearing, the applicant submitted in his Reply that an additional reason that he should not be bound by the release is the inadequate consideration provided in the MoA to settle the human rights portion of his grievances. The Ontario Divisional Court in Pritchard stated, in the context of the old Code, that it may be appropriate not to give effect to a release if an applicant “received little or no consideration for it beyond statutory entitlements under employment standards legislation”.

81I do not accept that this is reason for not giving effect to a release in this case. The applicant in this case received substantially more in salary continuance than he would have been entitled to under employment standards legislation. While he argued in his Reply that the amount allocated to the settlement of the human rights portion of his grievance was inadequate, I do not find it appropriate for this Tribunal to isolate one term of a settlement and assess whether it is sufficient or not. The Tribunal has declined to engage in such an assessment in the past. See Perricone, above, paras. 46-47. The applicant did not point me to any authorities in support of the proposition that otherwise binding releases may be set aside on the basis that the human rights portion of the consideration is not adequate for the settlement of a human rights claim.

82For all the above reasons, I do not accept the applicant’s claim that he should not be bound by the release contained in the MoA because of duress.

Order

83For the reasons set out above, I find that it would be an abuse of process to proceed with this Application in the circumstances of this case. The Application is therefore dismissed without the need to hear evidence from the respondent or union.