Robert Wilson v. Automotive Training Centre (Ontario) Ltd., 2015 HRTO 1663

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Robert Wilson

Applicant

-and-

Automotive Training Centre (Ontario) Ltd.

Respondent

DECISION

Adjudicator: Maureen Doyle

Date: December 10, 2015

Citation: 2015 HRTO 1663

Indexed as: Wilson v. Automotive Training Centre (Ontario) Ltd.

APPEARANCES

Robert Wilson, Applicant

Steven Gadbois, Counsel

Automotive Training Centre (Ontario) Ltd., Respondent

Kevin Mitchell, Counsel

Introduction

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

2The respondent denies discrimination and submits that this matter should be dismissed, as the applicant signed a full and final release with respect to any claims against the respondent, including claims under the Code.

3In a Case Assessment Direction (“CAD”) dated May 25, 2015, the Tribunal directed that a preliminary hearing be held in order to determine whether this Application should be dismissed given the nature of the release signed by the applicant.

4A preliminary hearing was held and all parties participated.

Factual Background

5The applicant had been employed as an instructor at the respondent for approximately 10 years when in February, 2013, he received notice that his hours would be reduced. In mid-April, 2013, his hours began to decline. Shortly thereafter, on April 18, 2013, he had a workplace injury; he returned to work on April 3, 2014. On May 29, 2014, he received notice that his employment was terminated, due to declining enrollment.

6The applicant’s May 29, 2014 termination letter stated that, subject to its obligations to him under the Employment Standards Act, 2000 (“ESA”), among other things, the employer offered to: continue to pay the applicant’s salary to him until December 31, 2014, or the date he commenced alternative employment; release him from the restrictions contained in his employment agreement regarding non-solicitation and non-competition, with the exception of the covenant regarding confidentiality and non-disclosure of the respondent’s confidential information; in the event he obtained alternative employment prior to December 31, 2014, the company would pay a gross lump sum the equivalent to one half of the base salary payments which would have otherwise been paid to him; the payment was deemed to include vacation pay under the ESA; the applicant was to provide periodic sworn declarations regarding his employment status and subject to ESA obligations, the employer could suspend salary continuation payments if the applicant failed to provide such declarations; the employer could recover all payments made to him subsequent to the commencement of alternative employment if he failed to report that he had commenced alternative employment; the company would continue his benefit coverage until December 31, 2014, or until he obtained alternative employment, whichever came first; and the company would, upon his written request, provide a letter of employment to the applicant to assist him in securing alternate employment. The letter stated that if the applicant wished to accept the respondent’s offer, he was to indicate his acceptance on a copy of the letter, sign two copies of a full and final release in the form provided by the respondent, undertake not to disclose confidential information of the respondent and undertake not to disclose the terms of the offer. He was given seven days to return the original signed documents to the respondent. It stated that if he refused the offer, the respondent would provide him with payments in accordance with the ESA. It also noted that the salary continuance offered exceeded ESA entitlements.

7In the Full and Final Release referred to in the respondent’s offer, the applicant was required among other things, to release the respondent from

any and all…liabilities of any kind…which I have ever had, now have or which I….shall or may have, for or by reason of, or in any way arising out of/or in any way related to my employment and termination of that employment by the Releasees including, without restricting the generality of the foregoing, all claims for wrongful dismissal or breach of contract or claims or complaints arising under or in connection with the Employment Standards Act 2000, the Human Rights Code…

8There is no dispute that the applicant reviewed the above-noted offer and Full and Final Release at the termination meeting on May 29, 2014, then took the documents away and consulted legal counsel about them. It is not disputed that he was given seven days within which to respond and that he returned to the respondent employer on June 2, 2014. At that time he and Mr. Croft, president of the respondent, signed the documents after having made one change to the time frame within which he agreed not to contact students of the respondent.

9The applicant testified that upon signing the release, he understood that he was not permitted to make an Application to the Tribunal. He also testified that he did not believe he would be able to locate alternative employment, due to his injury.

10The applicant testified that he accepted the offer due to financial need and that on December 29, 2014, the Workplace Safety and Insurance Board sent him a letter stating that his surgeon had determined that his disability was permanent. He also testified that he has not found work since his termination.

11There is no dispute that the respondent continued the applicant’s pay in a timely fashion up until the final cheque for December 31, 2014, which was not received. He testified that his wife phoned Mr. Croft on February 4, 2015, and left a voice mail for him, but received no response. He testified that when he did not get a response, neither he nor his wife made any further attempts to obtain the payment and he decided to file this Application with the Tribunal.

12The applicant testified that he received the final payment on April 2, 2015 by courier, but he has refused to deposit the cheque to his account. He testified that he has not cashed the cheque because the respondent has breached its agreement with him.

13In cross-examination he agreed that he did not file an Application before December 31, 2014, as he knew that the Full and Final Release prevented him from doing so. He testified that the only reason he filed the Application was due to the respondent’s failure to provide the final cheque, which was for $1,849.00, less statutory deductions, an amount he agreed was a fairly small portion of the overall settlement.

14The applicant also testified that he gave a handwritten note to a representative of the respondent at the final meeting with the respondent, asking for a reference letter. He testified that he did not receive a reference letter from the respondent and that he made no further requests for one.

15There is no dispute that the applicant has not returned the money paid to him by the respondent pursuant to the settlement.

16It is not disputed that the applicant provided no sworn declarations regarding his employment status to the respondent. The applicant testified that he was waiting to be asked for one.

17Mr. Croft testified on behalf of the respondent. He adopted the contents of his August 26, 2015 affidavit and provided further oral evidence. It was Mr. Croft’s evidence that the respondent had withheld the final cheque, inter alia, due to the applicant’s failure to provide sworn declarations regarding his employment status, in accordance with the agreed-upon termination offer.

18It was Mr. Croft’s evidence that he was not in his office to receive any telephone calls for the month of February 2015, as he was on vacation. He testified that no one checks his voice mail when he is away, and he recalls no request from the applicant or anyone representing him requesting payment of the final amount. On cross-examination, he testified that by the end of the month there may have been 54-81 messages received during his absence, and agreed that it was possible that he may have missed one from the applicant’s wife. He also testified that he did not recall receiving a handwritten letter from the applicant at their final meeting regarding a reference letter, nor did he recall any such requests from the applicant or anyone representing the applicant after that date.

19The applicant argues that the respondent breached the settlement it concluded with the applicant and that as the “non-breaching” party, even though no legal proceedings have been commenced in court, “by analogy”, the applicant has a right to repudiate the agreement he made. He submitted that the respondent is attempting to enforce the settlement of June 2014. He submits that the Release was contingent upon payment of money by the respondent, and that without the settlement and the fulfillment by the respondent of its obligations, no release is enforceable. He further submitted that in any event, the Tribunal has no jurisdiction to interpret the settlement or the Release, as it was not a settlement of a Human Rights Application under the s. 34 or 35 of the Code. Though no legal action has been commenced in court, he submits that the jurisdiction to interpret the settlement and Release lies with the courts. He submits, in any event, that there is no Release. He submits that the case law cited by the respondent, such as Nolan v. Vale Inco, 2010 HRTO 1758, is “irrelevant”, as this matter does not involve the settlement of an Application under the Code.

20The respondent submits that the terms of the settlement agreement were “generally speaking complied with”. It argues that either this Application is an abuse of process, or if the applicant seeks to rescind or repudiate the Release, he must bring his matter before a court which has jurisdiction to consider that question. It also submits that the applicant is not in a position to argue rescission of the agreement when he has not repaid the amounts paid to him under that agreement. The respondent submits that the applicant executed an agreement, understanding the limits the Release would impose on him, and after the respondent had complied with the majority of the settlement, and now that it is in full compliance with the terms, he tries to waive the full and final Release. It agrees that the Tribunal has no jurisdiction to interpret the settlement and to determine if a breach of its terms has in fact occurred. It submits that the Tribunal does have the jurisdiction to determine that commencing an Application after executing a Full and Final Release is an abuse of process, and It submits that the Tribunal should so find in this case.

21With respect to the Release itself, the respondent submits that it makes specific reference to matters under the Code. The respondent submits that the applicant had sufficient opportunity to review the documents he signed in June, 2014, and that he received independent legal advice about his rights in that regard. It submits that though the applicant states that he signed the documents due to financial pressure, there was no suggestion of duress. Additionally, it submitted that the applicant was advised that even if he did not sign, he would receive his entitlements under the ESA in place of the more generous termination package offered.

DECISION

22Pursuant to section 23(1) of the Statutory Powers and Procedures Act, R.S.O. 1990, c. S.22, as amended (“SPPA”), the Tribunal has the jurisdiction not to proceed with a matter if it is of the view that to do so would constitute an abuse of its process.

23The Tribunal has decided not to proceed with Applications filed after the applicant has signed a settlement agreement, both with and without Releases (see for example Solcan v. Kitchener (City), 2011 HRTO 2205, and cases cited therein), finding that it would be an abuse of process to permit the Applications to continue. In Martinez v. Siemens, 2010 HRTO 1027, the Tribunal dismissed an Application commenced after the applicant had signed a Release. Commencing at paragraph 21, the Tribunal stated:

Accepting that the release expressly encompassed legal action related to human rights does not end the enquiry. In Bielman v. Casino Niagara, 2009 HRTO 123, the Tribunal stated:

The Code does not explicitly bar applications such as this where a release has been signed by the applicant. In each case where a respondent requests early dismissal of an application, the Tribunal must decide whether, in the circumstances, it would constitute an abuse of the Tribunal’s process to allow the application to proceed to a hearing on the merits. An important consideration in that analysis is the respondent’s reasonable expectation that a release of this kind will bring finality to any employment related dispute they may have with a former employee.

Thus, while the existence of a full and final release is not a statutory bar to continuing an application, there are many reasons to uphold agreements reached between freely contracting parties. Failure to uphold such agreements, and to hold parties to their commitments, can undermine the integrity of negotiated settlements and hinder the timely and informal resolution of disputes.

The Tribunal must render its decisions in the light of principles of law set out in its own jurisprudence as well as that of the courts. The case of Pritchard v. Ontario (Human Rights Comm.), 1999 CanLII 15058 (ON SC), 35 C.H.R.R. 39 (ON S.C.), addressed the circumstances to be considered in determining whether a release should be set aside. I recognize that that Pritchard was decided under section 34 of the old Code, which invoked bad faith rather than abuse of process, and concerned access to the since repealed investigative procedure of the Ontario Human Rights Commission rather than the right to an oral hearing before the Tribunal. However, the Pritchard factors can be useful in determining whether it would be an abuse of process to proceed with a hearing on the merits: Douse v. Hallmark Canada, 2009 HRTO 1254. The Pritchard factors look to (1) whether the party fully understood the significance of the release; (2) whether she 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.

24The release signed by the applicant clearly encompasses claims under the Code regarding the applicant’s employment and termination of that employment. The applicant obtained legal advice prior to signing to accept the offer and release and testified that he understood that the terms of the release precluded him from filing an Application at the Tribunal.

25The applicant has received the benefit of the major part of the settlement he accepted, has not returned the money which he received, and has in fact received the final cheque, but has chosen not to cash it. There is no dispute that the money which he has received has exceeded his entitlements under the ESA. There is no dispute that he was advised that if he did not accept the respondent’s settlement proposal, he would receive only that to which he was entitled pursuant to the ESA. In these circumstances, it is accurate to state that he has received benefits from the respondent which were extended to him solely because of his acceptance of the settlement terms.

26Though the applicant indicated that he faced financial pressures and that these were part of the reason he chose to accept the respondent’s offer upon termination of his employment, 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.

27I accept that the applicant was under considerable financial pressure as a result of having lost his 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 him were so great as to amount to a coercion of his will. He has not produced any evidence that would support a conclusion that he could not make choices for himself at the time he signed. In fact, it is agreed that he had several days to make his decision to accept the offer and that he sought legal counsel prior to signing. Additionally, it is agreed that at the time of signing, the respondent altered a term of the offer, giving him greater flexibility with respect to contacting his former students. There is no basis upon which I can conclude that he signed the Release under duress, economic or otherwise, and that it should be set aside.

28While the applicant takes the position that the respondent has breached a provision of the settlement in not providing him his final payment in a timely fashion, the Tribunal has found that the fact that a term of settlement has not been implemented does not make the settlement less binding, nor does it permit a party to raise the underlying substantive issues at the Tribunal (see for example Hazel v. Ainsworth Engineered, 2009 HRTO 2180, and Dunn v. Sault Ste. Marie (City), 2008 HRTO 149, and also see Zu v. Hamilton (City), 2010 HRTO 2461). Should the applicant take the position that the terms of the agreement that the parties signed have not been satisfied, he may have other recourse, but as the parties did not conclude a settlement of an Application made under section 34 or 35 of the Code, the Tribunal has no role in respect of the enforcement of the terms of that settlement. Again, however, this does not detract from the fact that a signed settlement and Release are appropriate factors for the Tribunal to asses in exercising its jurisdiction not to proceed with a matter if it is of the view that to do so would constitute an abuse of its process.

29Given all of the above, I conclude that it would be unfair to permit the applicant to continue in the Tribunal’s process with this Application, and it is dismissed as an abuse of process.