Fallow v. Durham Condominium Corporation No. 35, 2015 HRTO 1022

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Donna Fallow

Applicant

-and-

Durham Condominium Corporation No. 35 and Brookfield Condominium Services Ltd.

Respondents

DECISION

Adjudicator: Dawn J. Kershaw

Date: July 31, 2015

Citation: 2015 HRTO 1022

Indexed as: Fallow v. Durham Condominium Corporation No. 35

APPEARANCES

Donna Fallow, Applicant

Self-represented

Durham Condominium Corporation No. 35 and Brookfield Condominium Services Ltd., Respondents

Matthew Vella, Counsel

Introduction

1This Application alleges reprisal and discrimination with respect to employment because of marital status contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code").

2The respondent filed a December 1, 2014 Form 2 Request for Dismissal without Full Response alleging the applicant signed a full and final release with respect to the same matter.

3By Tribunal letter, dated February 25, 2015, a preliminary hearing by teleconference originally was scheduled for June 1, 2015 to address the issue of whether allowing this Application to proceed would be an abuse of process given that it appears the applicant signed a full and final release ("release") with respect to the same subject matter.

4The applicant did not attend the June 1, 2015 hearing but contacted the Tribunal later that day to advise that she tried to call in and was unable to connect. As a result of her call, it was evident to the Tribunal that she did not intend to abandon her Application. A new preliminary hearing date of July 21, 2015 was set and the applicant, her husband and the respondents attended. The applicant and her husband gave evidence. The respondent condominium corporation also called one witness who gave very brief evidence. The respondents also provided both oral and written submissions.

evidence and submissions

5The applicant and her husband, Mr. Fallow, were superintendents at the respondent, Durham Condominium Corporation No. 35 ("DCC"). In a July 17, 2014 meeting ("the termination meeting") which included the respondent's witness, Heather Savory, the applicant's and her husband's employment was terminated for cause.

6The applicant testified it was a shock when she realized she was being terminated as well because although she signed a letter with respect to performance issues at an earlier meeting, she had the impression the performance issues were more or less her husband's and not hers.

7In the termination meeting, the applicant signed a release because she knew the respondents would be on them for anything and everything they did from then on if they did not sign, and she just wanted to get away from the stress of it all.

8The applicant denied being told in the termination meeting that she could take the release with her to review. She said it was not until later that she looked at it and saw the respondents would not pay her unless she signed it. She testified she did not know when she signed the release that she would be getting money in exchange for signing.

9She also testified she did not know what she was signing, but admitted she knew she was "signing off". She did not know the release contained as much as it did. She admitted she probably should have taken it home and then come back, but it was all a blur when they told her she was released from her employment, and she felt as if she would pass out.

10Mr. Fallow was at the termination meeting. He testified he and the applicant were asked to come into the office and to sign the release. The applicant was not told she could take the letter with her.

11He testified a security guard was in the room, although he did not take part in the meeting but just stood at the door. Mr. Fallow testified the only thing he and the applicant were told about the meeting was they should come in. They then were told to sign that they would not take the respondents "to the Tribunal or whatever". He testified he and the applicant felt they had no choice because two managers and a security guard were present.

12Ms. Savory, testifying on behalf of the respondents, stated the security guard was not in the office during the meeting, but was outside the office. He was in attendance because the applicant and her husband had been aggressive in the past. The applicant, in response, testified the security guard was outside the office but was standing right behind her and her husband.

13The respondents submit the applicant signed a full and final release on the day she was terminated in exchange for two weeks' pay. They submit the applicant acknowledges in the information in her Form 11 Response to a Request for an Order ("Form 11") that she knew she was asked to sign a release in exchange for money, and that her evidence that she did not know what she was signing contradicts that.

14The respondents further submit that the applicant admits telling her husband to sign the release because if they [the respondents] did not get them that day, there would be another day. They indicate that this shows that the applicant turned her mind to the release and decided she and her husband should sign it.

15Furthermore, they submit that while the applicant submits she was stressed and just wanted to get this over with, the applicant gave no evidence there was duress or inordinate pressure put on her to sign the release.

16The respondents acknowledge there was a security guard present when the applicant was asked to sign the release, but the respondents submit the applicant agrees he was not in the room and did not take part in the meeting.

17The respondents submit that the case law clearly indicates that finality is important, and when a party signs a release and takes settlement funds, they should be bound by the release. It is an abuse of process to allow an Application to proceed in the face of a release.

18In this case, the release is clear and deals with Human Rights applications issues in four places. The respondents submit that feeling stressed or being under emotional pressure; feeling no alternative but to sign a release; and failing to read a release before signing it are not reasons to set aside a release. In addition, the respondents submit the amount of money paid or the fact that a meeting is short also are not reasons to set aside a release.

19The respondents submit the applicant chose to sign the release, and counselled her husband to sign, and was told what the release was and what she would get in return for signing it.

analysis and decision

20The 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.

21In Better Beef Ltd. v. MacLean, 2006 CanLII 17930 (ON SCDC), 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.

22The decision in Pritchard v. Ontario (Human Rights Comm.), 1999 CanLII 15058 (ON SC) ("Pritchard"), 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.

23It is important to bear in mind, however, that the issue before the court in Pritchard was whether the filing of a human rights complaint subsequent to the signing of a release was in "bad faith". Under the Code, the question is whether an Application filed after the signing of a Release is an "abuse of process". Although these may overlap at times, they are different legal concepts. What is important when parties enter into a contract to settle a dispute is that there is finality. See, e.g. Perricone v. Fabco Plastics Wholesale, 2010 HRTO 1655 at paras. 36-39 ("Perricone").

24I am satisfied that the applicant understood she was being asked to sign a release in exchange for two weeks' pay, as set out in her Form 11. I do not accept her evidence that she was not advised what it was she was signing, particularly since her husband testified they were told that they would not take the respondent to the Tribunal. The applicant also testified she knew she was "signing off". While she testified she did not read the release until later and then realized there was more in there, as stated at para. 69 of Perricone:

A party to a legal agreement cannot enter into it without taking the time and effort to understand it and then rely on her own actions as the basis upon which to resile from the agreement.

25The applicant also received compensation in exchange for signing the release. She does not allege and has not shown that the sum she was paid does not amount to sufficient and fair consideration for signing the release. Pritchard addresses the issue of whether filing a human rights complaint where there has been "little or no consideration" for the Release is in "bad faith", which is not applicable to this case. The applicant also gave no evidence of economic pressure.

26The applicant also gave no evidence of psychological or emotional pressure amounting to duress. The applicant's only allegation that may have fallen under the category of duress was the presence of a security guard at the door of the office where the applicant and her husband were terminated. The Ontario Court of Appeal described the elements of duress in Taber v. Paris Boutique & Bridal Inc. (Paris Boutique), 2010 ONCA 157, as follows at paras. 8-9:

[...] 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.

27Although the applicant states in her Form 11 that having a security guard present was intimidating, the applicant admits the security guard did not take part in the meeting and was not in the room, although he was at the door. While the presence of a security guard outside the door may be evidence of coercion in some circumstances, in this case the applicant did not allege she was coerced into signing the release. While the applicant may have felt intimidated by the presence of a security guard, there is no basis to conclude there was any connection between his presence and the reason the applicant signed the release. She testified she signed it and told her husband to sign because she felt the respondents would get them another day if not that day, meaning she felt they were looking for performance issues. She signed because she felt stressed and wanted the situation with the respondents to be over. The presence of a security guard in this case is not indicative of duress and is no reason to set aside the signed release. Likewise, the applicant's evidence that she felt shocked and stressed in the circumstances is not sufficient to constitute duress.

28The applicant freely entered into a full and final release with the respondents in respect of claims under the Code. She presented no basis to relieve her from that agreement. It would be an abuse of the Tribunal's process to permit the Application to proceed because the release provides for a full and final settlement of any claims arising directly or indirectly out of the applicant's employment with the respondent, including any Human Rights claims.

29The Application is dismissed.