Brown v. Prime Communications Canada Inc., 2015 HRTO 136

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Stephanie Brown

Applicant

-and-

Prime Communications Canada Inc.

Respondent

DECISION

Adjudicator: Paul Aterman

Date: January 29, 2015

Citation: 2015 HRTO 136

Indexed as: Brown v. Prime Communications Canada Inc.

APPEARANCES

Stephanie Brown, Applicant

Self-represented

Prime Communications Canada Inc., Respondent

Joe Chesham, Representative

Introduction

1This Decision explains why the Tribunal is dismissing this Application, which alleges discrimination with respect to employment because of sex contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The applicant worked for the respondent as a sales director. Her position was located at the respondent’s head office in Kingston. In September of 2013, the respondent made a business decision to move the head office to Toronto. As part of that corporate reorganisation the applicant’s employment was terminated. The applicant was on maternity leave at the time.

3The respondent paid the applicant a sum of money in lieu of notice and, as part of the agreement between the parties to end the employment relationship, the applicant signed a release on October 7, 2013.

4The release prevents the applicant from making an application under the Code “arising from or relating to my employment or the termination of my employment”. The release goes on to state that its scope extends to “any and all claims which I have or may have”. Finally, the release notes that if the applicant does make an application then it serves as complete bar to the application.

5The applicant filed this Application on May 5, 2014. The Application alleges discrimination in that the applicant states that the respondent took advantage of the fact that she was on maternity leave at the time of the corporate reorganisation and used her absence from the workplace as a means to force her out of her employment.

6The respondent has not filed a full Response. It requests dismissal of the Application on the ground that the Application is barred by the fact that the applicant signed a release agreeing not to bring the Application.

7The Tribunal held a preliminary hearing by teleconference on January 27, 2015, to determine whether the Application can proceed.

applicant’s position

8The applicant argues that it is only after she signed the release that she realised that she had been discriminated against. For example, she states that she was told by the respondent that her position would be eliminated, but after she signed the release she discovered in February of 2014 that the respondent had posted her former job on a professional networking website. She further alleges that, unlike her colleagues, who were all present at work through the corporate reorganisation, she was not given an opportunity to discuss any alternative working arrangements, including the possibilities of relocation or working from home. Again, she only found out after the fact that these options were extended to her colleagues. Finally, she alleges that the respondent used the fact that she was on maternity leave as a pretext for not paying her a prorated bonus in 2013 that would have reflected the time she worked before going on maternity leave.

9It is the applicant’s view that she was induced into signing the release because the respondent withheld information from her about the options of relocating or working from home, and that the respondent could only achieve this because she was out of the workplace on maternity leave. She further states that she signed the release under duress because she was facing financial pressure and was dealing with post-partum depression and anxiety. Her argument is that the release should be treated as void because it was signed under duress.

analysis

10The 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.

11In Better Beef Ltd. v. MacLean, 2006 CanLII 17930 (ONSCDC) 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.

12The decision in Pritchard v. Ontario (Human Rights Comm.), 1999 CanLII 15058, 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.

13I am satisfied that the applicant understood the significance of the release. The applicant held a fairly senior sales position in the company. Her job entailed managerial responsibilities. She presents as articulate and thoughtful. While she may not be familiar with legal terminology, she would have understood the significance of signing the release, particularly as key paragraphs in the release – such as the bar on bringing a Code application – are in sufficiently plain language that one does not need to be a lawyer to understand them.

14The consideration she received was in excess of her entitlements under the Employment Standards Act, 2000, S.O. 2000, c. 41, and included a period of post-termination coverage of benefits as well as a lump sum payment. It also included the offer of job search support, such as assistance with resume preparation, an interview skills workshop and reference letter. The applicant may not now be satisfied with the terms she agreed to, but she has not shown that the package does not amount to sufficient and fair consideration for signing the release.

15Regarding the applicant’s argument of duress, the Ontario Court of Appeal described the elements of economic duress in Taber v. Paris Boutique & Bridal Inc. (Paris Boutique), 2010 ONCA 157, as follows 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.

16I accept that the applicant suffered from post-partum depression and anxiety at the time she signed the release. I also accept that she was under considerable financial pressure as a result of having lost her job. However, it is common for an employee to face some form of financial pressure as a result of a loss of employment. There is no indication here that the applicant was facing any pressure that went beyond what happens in most cases. The applicant has not shown that the emotional and psychological pressures on her were so great as to amount to a coercion of her will. This is because she has not produced any evidence that would support a conclusion that she could not make choices for herself at the time she signed.

17There is no basis to conclude that the release was signed under duress and should therefore be set aside.

18As the release provides for a full and final settlement of any claims arising out of the applicant’s employment with the respondent, it would be an abuse of process to allow this Application to continue in the Tribunal’s process.

order

19The Application is dismissed.