Sabrina Medynski v. Fortis Properties Corporation, 2014 HRTO 185

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Sabrina Medynski

Applicant

-and-

Fortis Properties Corporation o/a Holiday Inn and Suites

Respondent

DECISION

Adjudicator: Eric Whist Date: February 10, 2014 Citation: 2014 HRTO 185 Indexed as: Medynski v. Fortis Properties Corporation

APPEARANCES

Sabrina Medynski, Applicant Self-represented

Fortis Properties Corporation o/a Holiday Inn and Suites, Respondent Craig Lawrence, Counsel

INTRODUCTION

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 disability.

2The respondent filed a partial Response to the Application requesting that the Application be dismissed on the basis that the applicant signed a full and final release (the "Release") at the time her employment was terminated.

3The Tribunal subsequently issued a Case Assessment Direction directing that a preliminary hearing be held to determine whether the Application should be dismissed as an abuse of process because the applicant signed a release.

4An initial half day hearing was held by conference call. The Tribunal then determined that a half day hearing in person was required during which the Tribunal heard additional evidence and submissions. The applicant testified on her own behalf and Robin Lamoureux, the general manager of the respondent's Holiday Inn Select in Windsor (the "Hotel") and Sharon Byrd, the respondent's Manager of Human Resources, testified for the respondent.

DECISION

5For the reasons discussed below I find that the Application should be dismissed.

BACKGROUND

6The applicant worked in the Hotel initially as a front desk associate and then, beginning in September 2011, as the accounting clerk. As the accounting clerk she worked with the Hotel's property accountant. I heard testimony that the accounting responsibilities at the Hotel include managing daily deposits, accounts receivable, and accounts payable, responding to customer billing complaints, producing month end reports, conducting banking reconciliations and forecasting revenues.

7In December 2011, the property accountant left her position. It was agreed that in January 2012 Mr. Lamoureux communicated to the applicant an intention to hire for the property accountant's position.

8The property accountant position was vacant from January 2012 until after the applicant's employment was terminated on June 11, 2012.

9The applicant developed a work related injury in April 2012- carpel tunnel syndrome- that apparently worsened in May 2012. The Application alleges that the respondent terminated the applicant's employment in response to her having filed a WSIB claim and having attempted to seek accommodation for her disability.

10On June 11, 2012, the applicant was told in a meeting with Mr. Lamoureux and Ms. Byrd that the respondent was reorganizing and that her employment was being terminated without cause. The applicant was offered a severance package and given a Full and Final Release/Confidentiality Agreement (the Release) to consider. The Release clearly includes a provision that the applicant discharges the respondent from any action with respect to her employment and the termination of her employment under any legislation including the Code. The applicant signed the Release on June 14, 2012.

11On June 24, 2012, the respondent posted a job advertisement for an on-site property accountant position at the Hotel. The advertisement notes that the ideal candidate would possess a degree or diploma in business or accounting with a minimum of three years experience.

SUMMARY OF KEY EVIDENCE

12The applicant testified that she carried out many of the duties of the property accountant during the period January to June 2012. She testified that initially she shared responsibility for these duties with the front desk supervisor and the revenue manager but that, over time, she assumed a greater portion of these tasks. She acknowledged during cross-examination that there were key duties of the property accountant such as banking reconciliation that were carried out by the property accountant based at the respondent's hotel in Sarnia. She testified that evidence of her increased responsibilities included the fact that she was given a $1300 raise and was sent to Sarnia to receive training from the property accountant based at the respondent's hotel in Sarnia. She testified that she believed that she would be placed into the vacated property accountant's position at the Hotel.

13The applicant testified that she was surprised and shocked when she was told on June 11, 2012, that her employment was being terminated. She testified that the respondent never raised concerns about her job performance. She testified that Mr. Lamoureux told her that the reason for her dismissal was because the respondent was restructuring and eliminating her position. She testified she asked how this was possible given that she was doing both the accounting clerk and the property accountant's job. She testified that Mr. Lamoureux told her that the respondent was looking to restructure and do things out of head office. She testified she was not told of any intention to hire an on-site property accountant and only found out subsequent to her termination that the respondent had posted a job advertisement on June 24, 2012, for the position of a property accountant to be based at the Hotel.

14The applicant testified that Mr. Lamoureux and Ms. Byrd did not review the Release with her on June 11, 2012 in any detail or the respondent's June 11, 2012 letter that sets out the respondent's proposed severance package. She acknowledged that she was encouraged to take the respondent's offer and the Release away with her and obtain legal advice before deciding whether to accept the offer and to sign the Release. She testified that she took three days before she signed the Release but that she did not obtain legal advice (because of cost).

15Mr. Lamoureux and Ms. Byrd both testified that the duties the applicant carried out during the period January to June 2011 were those of an accounting clerk, not a property accountant. They testified that the property accountant's duties during this period were carried out by the property accountant based at the respondent's Sarnia hotel, except for one duty that was being done by the Hotel's revenue manager and some financial forecasting done by a property accountant based in Peterborough. Mr. Lamoureux testified that the applicant's pay raise during this period was to bring the applicant's salary into line with other accounting clerks within the respondent's organization.

16Mr. Lamoureux testified that the respondent considered not filling the property accountant's position in Windsor and instead would rely on using the Sarnia property accountant to cover this responsibility. However, both he and Ms. Byrd testified that relying on the Sarnia property accountant did not work. Mr. Lamoureux testified that deadlines were not being met, that some forecasting was not accurate and that there were difficulties arising from the Sarnia property accountant being unavailable for in-person meetings with Hotel managers. He testified that the Sarnia property accountant was having to spend too much of her time on Windsor related work (30 or 40% of her time). He testified that it was subsequently decided that an on-site property accountant in Windsor was needed but that the respondent would do away with the accounting clerk position for the Hotel.

17Mr. Lamoureux and Ms. Byrd both testified that the applicant was told on June 11, 2011, that the accounting clerk's position was being eliminated and that the respondent's intention was to hire an on-site property accountant in order to provide accounting services for the Hotel. Mr. Lamoureux and Ms. Byrd both testified that the respondent wanted to hire someone for the property accountant's job who had an accounting degree (which the applicant did not have) and property accounting experience.

18Mr. Lamoureux and Ms. Byrd testified that the respondent's June 11, 2012 letter setting out the respondent's severance package proposal and the Release were discussed with the applicant. They testified that the Release was provided to the applicant and that the applicant was advised to take the Release home and to consult a lawyer before signing.

19There was no dispute that the respondent did eliminate the accounting clerk position at the Hotel and proceeded to hire an on-site property accountant.

ANALYSIS AND DECISION

20The Code does not explicitly bar applications where an applicant has executed a release in favour of the respondents. However, section 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 an abuse of its processes. The Tribunal has held 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, for example, Barton v. Rouge River Health System, 2010 HRTO 2126; Sleiman v. The Participation House Project (Durham Region), 2012 HRTO 345; and Perricone v. Fabco Plastics Wholesale, 2010 HRTO 1655.

21The issue before me is whether the Application should be allowed to proceed notwithstanding that the applicant signed the Release. Usually the arguments for allowing an application to proceed when a release has been signed are that an applicant did not fully understand the significance of the release that he or she signed or because he or she signed the release under economic pressure or psychological or emotional pressure amounting to duress.

22The applicant testified that at the time she signed the Release she did not fully understand that she would receive a lump sum payment in consideration for signing the Release. She testified that she did understand that by signing the Release she was prevented from "suing" or taking action against the respondent under the Code. Based on this acknowledgement I see no reason to allow this Application to proceed on the basis that the applicant did not understand the significance of the Release in relation to pursuing her rights under the Code.

23The applicant also acknowledged that she was not under economic duress at the time she signed the Release. She did testify that she was upset and in some shock after being told on June 11 her employment was being terminated.

24It is understandable that the applicant was distressed by the termination of her employment. Losing one's job is, after all, usually a significant and stressful event. However, the Tribunal has defined duress as requiring an element of coercion (See Kailani v. Securitas Canada, 2009 HRTO 1183) and the applicant did not submit nor is there evidence that the applicant was coerced into signing the Release as a result of any psychological or emotional pressure.

25The principal issue in this case is whether the Application should proceed, notwithstanding the signed Release, because of a fraudulent misrepresentation.

26The applicant submits that the respondent deliberately provided her with false or misleading information at the time of her dismissal when it told her that the accounting for the hotel would probably be done out of head office and by not telling her that it intended to hire an on-site property accountant for the hotel. She submits that if she had known that the respondent was going to hire someone to continue with the job she believed she was, in effect, doing she would have known that that the respondent's claim that she was being dismissed for business reasons (i.e. restructuring) was a pretext and the real reason her employment was being terminated was because of her disability and her need for accommodation. She submits that under these circumstances she would not have signed the Release. She submits that given the respondent's misrepresentations the Tribunal should set aside the Release and allow her to continue with her Application.

27The Tribunal has considered fraudulent misrepresentation to be a potential reason to allow an application to proceed notwithstanding a signed release. See, for example, Arora v. Weston Bakeries, 2010 HRTO 2283, and Wedderburn v. Air Liquide Canada, 2010 HRTO 691. In O'Regan v. Firestone Textiles, 2010 HRTO 502, the Tribunal helpfully made reference to the following common law elements of misrepresentation when considering whether a release should be set aside on the basis of fraudulent misrepresentation:

It is well-established at common law that in certain limited circumstances, a false representation can have the effect of invalidating a signed legal document: see Corfax Benefit Systems Ltd. v. Fiducie Desjardins Inc., (1997) 37 O.R.(2d) 50. However, there are certain elements that must be proven in order to establish this result, including that the representations were made by the respondents, that they were false in fact, that they were known or should have been known to be false, and that they induced the applicant to enter into the agreement to her prejudice.

28I find that the respondent did not make representations to the applicant that were false. Mr. Lamoureux and Ms. Byrd did tell the applicant on June 11, 2012 that the position of accounting clerk was being eliminated. This was not disputed. The further undisputed evidence before me is that the accounting clerk position was, in fact, eliminated and not re-established. I also find the respondent's evidence that the applicant was told on June 11, 2012 that it was intending to hire an on-site property accountant to be credible. I prefer Mr. Lamoureux and Ms. Byrd's testimony on this key point based on the totality of the evidence before me.

29Mr. Lamoureux and Ms. Byrd's evidence has a persuasive logic to it. Until January 2012 the respondent had two persons providing accounting services on site at its Windsor hotel – the applicant and the property accountant. From January to June 2012 it provided these services with an accounting clerk on site and a property accountant based in its hotel in Sarnia. The respondent provided credible evidence that there were problems with having an off-site property accountant. In June 2012 the respondent advised the applicant that it was terminating her employment, without cause, on the basis that the respondent was re-structuring and was eliminating her position. Given these circumstances I find it logical, and indeed probable, that Mr. Lamoureux and Ms. Byrd would have stated that the respondent was intending to hire an on-site property accountant as part of an explanation for how it would provide accounting services at the Hotel and why the applicant's position as an accounting clerk was being eliminated, as they claimed they did. By contrast, I find the applicant's contention that she was told that the respondent would be providing accounting services for the Hotel from its head office makes little sense from an administrative perspective and in light of the problems that were identified with how the off-site property accountant functioned. This would have meant that there was no on-site accounting support for the Hotel. This also makes little sense given the evidence I heard about the nature of the accounting functions that were carried out at the Hotel which included a need to track daily financial transactions and to involve hotel management in financial forecasting and planning. The evidence, as well, was that the respondent did proceed to hire an on-site property accountant.

30I am satisfied that, on a balance of probabilities, the applicant was told of a plan to hire an on-site property accountant and, accordingly, there were no misrepresentations made by the respondent that were false and which deliberately intended to induce the applicant into signing the Release.

31Having considered all the circumstances, I am satisfied that the respondent is entitled to rely on the Release signed by the applicant. It would be unfair to the respondent and an abuse of the Tribunal's process to allow the applicant to pursue her Application under the Code. The Application is therefore dismissed.