Steve Cullen v. LPI Level Platforms Inc., 2014 HRTO 910

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Steve Cullen

Applicant

-and-

LPI Level Platforms Inc.

Respondent

DECISION

Adjudicator: Sheri Price

Date: June 20, 2014

Citation: 2014 HRTO 910

Indexed as: Cullen v. LPI Level Platforms Inc.

APPEARANCES

Steve Cullen, Applicant

Self-represented

LPI Level Platforms Inc., Respondent

Peter Sandiford, Representative

INTRODUCTION

1This Application was filed under s.34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). In the Application, the applicant alleges that the respondent, his former employer, reprised against him for claiming or enforcing his rights under the Code when it terminated his employment on June 25, 2012.

2The respondent denies the applicant’s allegations. In addition, in its Response to the Application, the respondent requested early dismissal of the Application on the basis that the applicant had signed a full and final release with respect to the subject-matter of the Application.

3An oral hearing was convened on March 24, 2014, to give the parties an opportunity to make submissions on the respondent’s request.

4During the oral hearing, an issue arose with respect to whether the name of the respondent had changed from “LPI Level Platforms Inc.” and whether this ought to be reflected in the decision. Following the hearing, on June 10, 2014, the applicant emailed the Tribunal to object to any amendment to the respondent’s name based on information provided by the respondent’s representative during the hearing. As it turns out, however, the proper name of the respondent, currently, is a moot point. This is because, for the reasons set out below, I have determined that the Application should be dismissed at this stage as an abuse of process.

Background

5The applicant commenced employment with the respondent in May 2011 as a Technical Support Representative in the respondent’s Ottawa office. During his employment, the applicant was scheduled to work five shifts per week on a rotating shift schedule.

6On or about May 2, 2012, the applicant asked the respondent to extend his lunch break by 30 minutes so that he would have time to exercise during his lunch break, which the applicant’s doctor had allegedly recommended because of the applicant’s disabilities. The applicant proposed that he make the time up at the end of his shift.

7On or about June 14, 2012, the applicant asked not to be scheduled to work on Thursday evenings so that he could attend religious meetings. In his email requesting this, the applicant referred to the Code and the right to be accommodated based on creed.

8During a June 20, 2012 meeting, the respondent advised the applicant that he would be given a shift schedule that would allow him to have Thursdays off. However, the respondent denied the applicant’s request for a longer lunch break because the medical note that had been provided by the applicant did not explain why the applicant needed to exercise during his scheduled shifts, and the request conflicted with business requirements.

9A few days later, on Monday June 25, 2012, the applicant was asked to accompany the respondent’s office manager to the Vice-President’s (“VP”) office. There, the VP told the applicant that he was being terminated effective that day. The applicant alleges that he was not given any reason why his employment was being terminated. The applicant alleges that he asked for a reason but was told by the VP that he did not wish to discuss it. The VP then left the applicant to go over the paperwork with another staff member.

10The applicant was given a letter during the June 25, 2012 meeting setting out the terms and conditions on which his employment was being terminated. In particular, the June 25, 2012 termination letter advised the applicant that the respondent would pay the applicant the monies owing to him pursuant to the Employment Standards Act, 2000. In addition, the letter offered the applicant an additional week’s pay, if he signed an attached Release in favour of the respondent by June 28, 2012.

11The June 25, 2012 letter stated in relevant part:

This will confirm that your employment with LPI Level Platforms Inc. (“LPI”) is terminated effective June 25, 2012 on the following terms and conditions:

a. In accordance with your letter of offer dated May 2, 2011 (“the Letter of Offer”), and the Employment Standards Act (“ESA”), LPI will pay you the equivalent of two (2) weeks’ salary less statutory deductions in lieu of notice according to the ESA, and any outstanding vacation pay entitlement you may have, as well as continue your group benefit coverage until July 9, 2012 inclusive.

b. Further, without prejudice to LPI’s right to rely on the strict wording of your Letter of Offer, LPI is prepared to pay to you a further amount equivalent to one (1) weeks salary, less statutory deductions, on the condition that you execute and return the enclosed Release on or before June 28, 2012.

We will make arrangements to implement paragraph (a) above, and upon receipt of the executed Release, we will additionally make arrangements to implement paragraph (b) above. If you choose not to execute the Release, we will take the necessary steps to implement paragraph (a) above only.

Your Record of Employment will follow under separate cover…

12The applicant went home. On June 27, 2012, the applicant signed the Release that was attached to the June 25, 2012 termination letter. On June 28, 2012, the applicant returned the signed Release to the respondent.

13The applicant explained during the March 24, 2014 hearing that he did not get legal advice about the Release before signing it. The applicant said that he called one law office before he signed the Release, but the lawyers there were not available to meet with the applicant within the three-day period before the applicant had to return the signed Release. The applicant explained during the hearing that he did not attempt to contact any other lawyers, because he did not think he would be able to meet with anyone in the short time before the Release had to be returned to the respondent.

14The applicant submits that it was not until September or October 2012 that it occurred to him that the reason his employment had been terminated by the respondent must have been his June 2012 request not to work Thursdays. During the March 2014 hearing, the applicant explained that he came to this conclusion in part based on his recollection of the tense tone of the June 20, 2012 meeting, in which the respondent granted his request to have Thursdays off. The applicant submits that, although he did not think anything of it at the time, he later came to believe that the decision to terminate his employment had been linked to his request for Thursdays off to attend religious meetings and therefore constituted a reprisal, contrary to s. 8 of the Code. The applicant subsequently filed this Application, alleging reprisal, on June 12, 2013.

15For its part, the respondent submits that the termination of the applicant’s employment was unrelated to the applicant’s June 2012 scheduling request, which request the respondent points out it granted. The respondent submits that the applicant was one of nine employees in his department who were let go on June 25, 2012, and one of 28 who were let go across Canada, out of a total of approximately 100 employees. During the March 2014 hearing, the VP who met with the applicant on June 25, 2012 indicated that he believed that he told the applicant, like all of the other employees whose employment he terminated that day, that he was one of a number of people being laid off by the respondent. However, this is disputed by the applicant who maintains that, when asked, the VP merely said that he did not wish to discuss the reason for the applicant’s termination.

16The Record of Employment that the applicant received from the respondent employer, following the termination of his employment, indicated that the reason for cessation of the employment relationship was “shortage of work”.

ANALYSIS AND DECISION

17Section 23(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, as amended (“SPPA”), 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. In numerous cases, 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.

18In this case, the applicant submits that the Application does not constitute an abuse of process. First of all, the applicant submits that the wording of the Release does not prevent him from bringing this Application before the Tribunal. Alternatively, the applicant submits that the wording of the Release ought not to be given effect by the Tribunal because the applicant signed it under duress.

19I deal with each of these issues, in turn, below.

Whether the release, on its face and if given effect, prevents the applicant from bringing the Application

20The first issue to be determined is whether the wording of the Release signed by the applicant on June 27, 2012, if given effect, prevents the applicant from bringing this Application against the respondent.

21The Release states in relevant part:

I wholly release LPI … of and from any and all actions, causes of actions, complaints, debts, dues, warranties, claims or demands, for any loss, losses or damage whatsoever in existence prior to, on or after the date hereof, directly or indirectly arising from my employment with LPI or the termination thereof. Without limiting the generality of the foregoing, I acknowledge that the said payment is in satisfaction of all claims … relating to the termination of my employment and/or for damages for wrongful dismissal … and any and all claims which I may have had under …the Human Rights Code of Ontario. (emphasis added)

22As noted above, the applicant takes the position that the wording of the Release, on its face, does not prevent the applicant from pursuing this Application, which was filed against the respondent on June 12, 2013.

23According to the applicant, the wording of the Release prevents the applicant from continuing legal action that he commenced before he signed the Release. However, the applicant submits that the Release does not prevent him from commencing legal proceedings against the respondent after the date on which he signed the Release. Since this Application was filed with the Tribunal almost a year after the applicant signed the June 27, 2012 Release, the applicant submits that the Application is not barred by the Release.

24For its part, the respondent submits that the Release, which was drafted by a lawyer, is comprehensive and clearly prevents the applicant from filing a human rights Application based on the termination of his employment or anything that occurred before the Release was signed.

25I agree with the respondent that the wording of the Release, if given effect, prevents the applicant from pursuing this human rights Application.

26In this case, the applicant is attempting to argue that the respondent infringed his rights under the Code when it terminated his employment on June 25, 2012. However, on June 27, 2012, the applicant fully released the respondent from any and all claims for losses or damages relating to the applicant’s employment with the respondent or the termination of that employment. In addition, the applicant expressly agreed that the one week’s pay he received in exchange for signing the Release satisfied any claims that the applicant may have had up to that point in relation to the termination of his employment, including claims under the Code. In other words, if given effect, the Release signed by the applicant clearly prevents him from taking any legal action against the respondent based on the termination of employment, including this Application under the Code.

27As for the applicant’s submission that the Release merely prevented him from continuing legal proceedings that he had commenced against the respondent before signing the Release in June 2012, but did not prevent him from initiating legal proceedings afterwards, there are no words in the Release capable of bearing the interpretation urged by the applicant.

28Based on the plain and ordinary meaning of the words in the Release, I find that the Release prevents the applicant from bringing a human rights Application based on the termination of his employment. Accordingly, the Application should be dismissed as an abuse of process unless there is some reason that the Release ought not to be given effect. I now turn to that issue.

Whether the Release should not be given effect because the applicant signed it under duress

29As noted above, to the extent that the Release prevents him from pursuing a human rights claim against the respondent, the applicant contends that the Release should not be given effect because he signed it under duress. In particular, the applicant submits that he signed the Release and returned it to the respondent by June 28, 2012 because he was afraid that if he did not do so, the respondent would put something on his Record of Employment that would disentitle him from receiving much-needed Employment Insurance (“E.I.”) benefits, or make negative comments about the applicant to prospective employers.

30As I wrote in Wedderburn v. Air Liquide Canada, 2010 HRTO 691 at para. 20, where “duress” is put forward as the reason not to give effect to an agreement, the party claiming duress is really stating that he or she was compelled to enter into the agreement against his or her own free will.

31However, it is important to note that, duress, in the legal sense, does not exist merely because a party feels compelled to agree to something that he or she does not want to agree to. The party claiming duress must establish that he or she was compelled to enter into the agreement because of pressure placed on him or her by the other party to the agreement, and further that such pressure was illegitimate or wrongful. In addition, the illegitimate pressure in question must have been applied to such a degree that it amounted to a “coercion of the will”: Taber v. Paris Boutique & Bridal Inc. (Paris Boutique), 2010 ONCA 157 at pars. 8-9; Stott v. Merit Inv. Corp., 1988 CanLII 192 (ON CA), 63 O.R. (2nd) 545 (Ont. CA).

32In this case, having carefully considered the submissions of the parties, I am not satisfied that the applicant signed the Release under duress.

33The applicant indicates that he felt compelled to sign the Release because he feared the consequences of not doing so. However, the respondent did nothing to create the applicant’s fear in that regard. The applicant submits that he was afraid that if he did not sign the Release, the respondent might put something on his Record of Employment that would disentitle him from receiving E.I. benefits and/or hurt his chances of obtaining alternate employment. However, the applicant acknowledges that he “inferred” that these things might occur if he did not sign the Release. The respondent did not say anything to him about his Record of Employment or make any threat, either express or implied, in relation to the applicant’s E.I. benefits or his Record of Employment. Nor did the respondent threaten to make negative (or any) comments about the applicant to prospective employers, if he did not sign the Release. Accordingly, there is no basis upon which to find that the respondent placed any illegitimate pressure on the applicant to sign the Release, much less to such a degree that it amounted to a coercion of the applicant’s will.

34The respondent certainly offered the applicant an incentive to sign the Release (i.e. one week’s pay). However, the offer of an incentive for the applicant to give up his right to take legal action against the respondent did not constitute a threat to harm the applicant if he chose not to sign the Release. On the contrary, the respondent’s June 25, 2012 termination letter clearly indicated to the applicant that one of the options open to him was to decline to sign the Release, and forego the additional week’s pay that was specifically offered in exchange for it. In the circumstances, although I do not doubt that the applicant might have felt apprehensive about how the respondent might react to his not signing the Release, I am not persuaded that the applicant had no realistic alternative but to sign the Release, which is what a finding of duress would entail.

35Nor am I persuaded that the relatively short time frame that the applicant had to decide whether to sign the Release, taken on its own or together with the other circumstances, assists the applicant in establishing that the respondent coerced him into signing the Release against his will by placing illegitimate pressure on him. The applicant could have asked the respondent for additional time if he felt that the allotted time was too short for him to make a decision. However, he did not do so. Alternatively, if the applicant was not sure that he wanted to sign the Release, he could have decided to forego the additional week’s pay, which he acknowledged during the hearing was “not big”.

36In sum, the wording of the Release the applicant signed on June 27, 2012 prevents him from filing and/or pursuing an Application against the respondent under the Code. The applicant has not established that there is some reason that the Release ought not to be given effect. Accordingly, the Release is binding on the applicant and it would be an abuse of the Tribunal’s process to permit the Application to proceed.

37The Application is dismissed accordingly.