McDonald v. Give & Go Prepared Foods Corp., 2015 HRTO 1440

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Don McDonald

Applicant

-and-

Give & Go Prepared Foods Corp.

Respondent

DECISION

Adjudicator: Keith Brennenstuhl

Date: October 28, 2015

Citation: 2015 HRTO 1440

Indexed as: McDonald v. Give & Go Prepared Foods Corp.

APPEARANCES

Don McDonald, Applicant Self-represented

Give & Go Prepared Foods Corp., Respondent Lauren Butti, Counsel

Introduction

1This Application alleges discrimination with respect to employment because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The respondent seeks early dismissal of the Application on the basis that the applicant signed a full and final release (“Release”), releasing the respondent from, among other things, any claims under the Code. This was part of a settlement in which the applicant received termination monies in consideration for him executing the Release.

3The applicant takes the position that his Application should not be dismissed because the respondent made a fraudulent misrepresentation which induced him to sign the Release.

4The respondent alleges that decision to terminate the applicant was made as part of a restructuring which resulted in changes to the applicant’s job description. The applicant alleges that the decision to terminate the applicant was made for discriminatory reasons.

5In any event, on April 1, 2015, the respondent advised the applicant that his employment was terminated. At that time, the applicant was offered a severance package, which was conditional upon signing a “Final Release”. The severance package included a severance payment in excess of $4,000.00.

6The applicant accepted the severance offer and executed the agreement and the Release on April 2, 2015. He accepted the severance payment. He did not seek legal advice before signing the agreement even though the agreement clearly states that he should consider obtaining legal advice before executing the agreement.

analysis and decision

7The applicant argues that the release should be set aside and he should be permitted to proceed with his Application because he was misled as to the circumstances surrounding his termination at the time he entered the settlement agreement with the respondent. Specifically, the applicant submits that he signed the Release because the respondent represented to him that the reason for his termination was restructuring. He indicates, however, that shortly after his termination his position was advertised on Workopolis, proving that there was not a restructuring.

8In essence, the applicant argues that he was induced into the settlement agreement with the respondent because of the respondent’s fraudulent misrepresentation that there was a restructuring.

9The respondent maintains that there was a restructuring and that the position advertised on Workopolis, while described with the same job title as the applicant’s, set out new “Key Responsibilities” consistent with the nature of the restructuring.

10Where one party to an agreement deliberately misleads another party and thereby induces him or her into entering an agreement, the agreement may be set aside on the basis of the fraudulent misrepresentation. See Wedderburn v. Air Liquide Canada, 2010 HRTO 691.

11It is unclear to me whether the changes in the work place outlined by the respondent amounted to a “restructuring” as that term is commonly used. It is clear though that the job advertised in Workopolis outlined several responsibilities that did not appear in the applicant’s job description and that the management structure was reorganized, although not extensively.

12That being said, I turn to the Tribunal’s decision in O’Regan v. Firestone Textiles, 2010 HRTO 502, where at sub-paragraph 20 of paragraph 3 it is stated:

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. It is not clear to me on the evidence that all of these required elements have been satisfied by the applicant.

13Likewise, it is not clear to me on the evidence that the applicant has met all of the required elements to establish fraudulent representation.

14In O’Regan, The Tribunal continues at sub-paragraph 21:

However, there is a fifth required element, which is that within a reasonable time after discovery of the falsity, the applicant elected to void the agreement and accordingly repudiated it.

15In this case there is no dispute that the applicant did not ever elect to void or repudiate the agreement, which of course would have required the applicant to return the severance monies that he received from the respondent, which he has not done. To say, as the applicant did during the hearing, that he would now return the money is not sufficient to satisfy the fifth element of the test.

16As a result, I find that the applicant has not satisfied the fifth required element to justify overturning the Release.

17Accordingly, I find that it would be an abuse of process to allow the Application to proceed in light of the signed Release.

18The Application is dismissed.