Clegg v. Just Energy Corp., 2015 HRTO 1598

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Adrian Clegg

Applicant

-and-

Just Energy Corp. and Danny Sialtsis

Respondents

DECISION

Adjudicator: Jay Sengupta

Date: November 25, 2015

Citation: 2015 HRTO 1598

Indexed as: Clegg v. Just Energy Corp.

APPEARANCES

Adrian Clegg, Applicant

Self-represented

Just Energy Corp. and Danny Sialtsis, Respondents

Grace Silvestre, Representative

Introduction

1This is an Application filed under section 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.

2On May 6, 2015, upon reviewing the Application, the Tribunal directed that a preliminary hearing be held to determine whether this Application should be dismissed, in whole or in part, on the basis that the applicant had signed a full and final release with respect to the same subject matter of the Application, and to consider whether proceeding with hearing the Application would amount to an abuse of process.

3The preliminary hearing was held on November 16, 2015. For the reasons that follow, this Application is dismissed.

decision

4The Tribunal has held that the doctrine of abuse of process can apply in a variety of circumstances in which the Tribunal determines that it would be unfair to permit an Application to continue. The circumstances that can give rise to an abuse of process are not finite and may include, but are not limited to, circumstances such as delay, re-litigation, settlement, as well as certain issues of procedural unfairness. In attempting to preserve and promote judicial economy, consistency and finality, the focus of the doctrine of abuse of process is on the integrity of the administrative justice. See Campbell v. Toronto District School Board, 2008 HRTO 62 (“Campbell”), citing Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63.

5The Tribunal’s jurisprudence establishes that proceeding with an application may constitute an abuse of process when the parties have previously settled the subject-matter of the Application. See Campbell, above; Messiah v. Snap-on Tools of Canada, 2010 HRTO 1151 (“Messiah”), Zu v. Hamilton (City), 2010 HRTO 2461, and Holowka v. Ontario Nurses Association, 2010 HRTO 2171. As recognized by the Tribunal in Dunn v. Sault Ste. Marie (City), 2008 HRTO 149, at para. 35, “there is a strong public interest in ensuring that when parties freely choose to resolve the substance of a human rights dispute, in whatever form it is brought, the matter is at an end.”

6In Messiah, above, notwithstanding the absence of a release, the Tribunal applied the doctrine of abuse of process to dismiss the application where it was apparent from the agreement that the parties intended to resolve outstanding employment issues. The Tribunal stated, at paragraph 23, the relevant inquiry when considering abuse of process is “whether it would be unfair to permit the proceeding to continue having regard to the terms of the memorandum of settlement and all of the surrounding circumstances.”

7In the case at hand, the applicant’s employment was terminated without cause. He was presented with a separation package that he did not accept. The applicant and the respondent employer then proceeded to discuss further elements of a separation package and release which were presented to the applicant by way of a letter dated June 27, 2014. The letter provided the applicant with a deadline for signature of July 7, 2014.

8During the course of the negotiations, the question of whether the settlement would include a discretionary bonus was canvassed and the applicant was told that the employer was not including that amount as part of its offer. In addition, the question of whether a signing bonus was payable to him was canvassed and the applicant was told that, in the view of the respondent employer, he was not entitled to that bonus.

9An email dated July 3, 2014, urging the applicant to obtain legal advice prior to signing the agreement and release, was sent to him by a representative of the respondent employer.

10On Monday, July 7, 2014, the applicant signed the agreement as well as the release. In the latter document, he agreed to release the respondents from all claims arising out of his employment and the cessation of his employment, including claims under human rights legislation. The release also included clauses in which the applicant acknowledged that he was signing the documents voluntarily, had been afforded the time to review the agreement and had the opportunity to obtain independent legal advice.

11The applicant argues that the Application should not be dismissed because he still does not know why his employment was terminated, all he wanted was some compassion from the employer, that his managers knew that his mother was dying and that his daughter was ill at the time that the termination took place. He also says that he felt he had no option but to sign the agreement because he was under financial pressure.

12In essence, the applicant acknowledges signing a release, but says that he had no choice but to do so given his financial situation and the pressures he was under. He argues that he signed the release while he was under stress and duress and that the Tribunal should proceed with the matter notwithstanding the release.

13The party alleging duress has the onus of establishing that the circumstances surrounding the conclusion of the agreement amount to duress. The legal threshold is an exacting one, which recognizes the strong public interest in the principle of finality.

14The Ontario Court of Appeal described the elements of duress as follows in Taber v. Paris Boutique & Bridal Inc., 2010 ONCA 157, 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.

15Parties entering into settlement agreements generally face a number of pressures and often make decisions in difficult circumstances. However, difficult financial circumstances alone are not enough to meet the exacting threshold set out by the Court of Appeal. See also Sinnett v. Orlick Industries, 2009 HRTO 916, and Kailani v. Securitas Canada, 2009 HRTO 1183.

16I have no difficulty accepting that the applicant was struggling with personal and financial issues at the time of the termination of his employment. The loss of one’s employment is a difficult event and brings with it a great deal of stress and adjustment.

17However the applicant has not established that, in the circumstances, the pressures he faced amounted to a coercion of the will that warrants the setting aside of the release.

18In reaching this conclusion, I am influenced by the fact that the applicant did not immediately accept the terms of settlement advanced by his employer. Instead, he entered into negotiations with the respondents with a view to obtaining a better severance package. The fact that the applicant initiated negotiations that led to an improvement in the terms of settlement is inconsistent with his position that he entered into the release under duress.

19Accordingly, the Application is dismissed.