Born v. Regis Corporation, 2015 HRTO 555

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Rosella Born Applicant

-and-

Regis Corporation Respondent

DECISION

Adjudicator: Mary Truemner Date: May 1, 2015 Citation: 2015 HRTO 555 Indexed as: Born v. Regis Corporation

APPEARANCES

Rosella Born, Applicant Self-represented

Regis Corporation, Respondent Angela Rae, Counsel

Introduction

1This Application, filed at the Tribunal on August 14, 2014, alleges discrimination because of sex, sexual solicitation or advances, and reprisal with respect to employment contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The Application indicates that the applicant believes that she was not permitted by her supervisor to claim office expenses because she refused his sexual advances. It also indicates that she believes that she was demoted for the same reasons.

3The Application indicates that the applicant signed a release when settling “Labour Board issues”. Attached to the Application is a copy of Minutes of Settlement (“the settlement”) executed by the parties on October 2, 2013 in settlement of a wrongful dismissal claim which included allegations similar to the ones in the Application. Attached to the settlement is a full and final release (“the release”) of all matters between the parties which was also executed by the applicant on October 2, 2013. In it, the applicant agreed that she would not make any more claims against the respondent, including one under the Human Rights Code, and, if she did, she agreed that it would be an abuse of process.

4After receiving the Application, the Tribunal noted the full and final release, and that it appeared that to proceed further with the hearing of the Application would amount to an abuse of the Tribunal’s process. The Tribunal therefore scheduled a preliminary hearing by teleconference.

applicant’s argument

5Prior to the Preliminary Hearing, the applicant filed documents related to her health after a car accident in 2013. She also filed documents related to her discovery in 2014 that the respondent normally paid for expenses like the applicant incurred during her employment with the respondent. It appears from the documents that when the applicant tried to obtain in 2014 a corrected T2202 from the respondent for the 2012 tax year to submit to the Canada Revenue Service, she discovered the respondent should have paid for her expenses throughout her employment.

6At the preliminary hearing, the applicant argued that she signed the settlement and release under duress. She confirmed that she signed on October 2, 2013, the day of the mediation for the wrongful dismissal claim, with both her lawyer and her husband present. She explained that a court-appointed mediator had informed the parties at the commencement of the mediation that his sister worked for the respondent. The applicant explained that while she, her husband and her lawyer said it was “okay” at the time, they subsequently felt that the mediator bullied them because the mediator’s sister worked for the respondent. The applicant also claimed that while she was well enough to attend the mediation, and participate in a civil, professional process, she was not well enough to deal with bullying at the mediation because she had not fully recovered from the car accident. The applicant explained that the mediator yelled, throwing down a document, and gave his opinion that the settlement was a good one. She was very upset by his alleged behaviour.

7Also at the preliminary hearing, the applicant argued that if she had known at the October 2013 mediation that her expenses were supposed to have been covered by the respondent, then she would not have signed the settlement and release.

8Also, the applicant initially argued at the preliminary hearing that the respondent did not comply with all of the terms of the settlement, particularly payment of monies, but upon the respondent’s assertion that it had sent to the applicant’s counsel what it was required by the settlement to send, the applicant admitted that this may have happened. She could not be sure if it did, and she no longer has a good enough relationship with her counsel to verify that it did. Given the applicant’s inability to confirm that the terms of the settlement were not met by the respondent whose counsel says that they were met, I see no need to address this allegation further.

analysis

9Section 23(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S. 22, as amended, provides the Tribunal with the power to make orders or give directions as it considers proper to prevent abuse of its processes. The Code does not explicitly forbid applications where a release has been signed by an applicant. However, in many cases, the Tribunal has found that filing a human rights application after signing a full and final release in respect of the subject-matter of the application may constitute an abuse of the Tribunal’s process. Where that is the case, such applications should be dismissed. (See for example Karambetsos v. Ontario (Community Safety and Correctional Services); 2014 HRTO 882; Amendola v. Marriott Hotels of Canada Ltd., 2012 HRTO 2292; Adams v. Community Life Care Inc., 2012 HRTO 1838; Perricone v. Fabco Plastics Wholesale, 2010 HRTO 1655).

10As stated in Nolan v. Royal Ottawa Health Care Group, 2014 HRTO 1604 (“Nolan”) at para. 43:

The reason why the Tribunal may determine that it is an abuse of process to permit an applicant to proceed with an application where he or she has signed a full and final release relates to the principle of finality. When two parties agree to settle a legal dispute, the principle of finality demands that the contract be given effect and prevents parties from litigating settled matters, unless there are compelling reasons to set the contract aside. Most litigation ends in settlements and almost all settlements include a provision by which a claimant fully releases the respondent from future claims relating to the subject matter of the settlement. To be effective, settlements must be final. Otherwise, parties would have no incentive to enter into settlements to end litigation. It is for this reason that this Tribunal has held that it would be an abuse of process to proceed with an Application when its subject matter is covered by a full and final release, unless there are compelling reasons to set aside the release.

Duress

11It is clear from the case law that not all pressure, whether economic or psychological, amounts to duress. In order to amount to duress, the pressure to sign a settlement must have two elements: (1) it must be pressure that the law regards as illegitimate and (2) it must be applied to such a degree as to amount to “a coercion of the will” in the sense that an applicant had no realistic alternative but to enter into the settlement. See Nolan; Taber v. Paris Boutique & Bridal Inc. (Paris Boutique), 2010 ONCA 157; and Stott v. Merit Investment Corp., 1988 CanLII 192 (ON CA), 63 O.R. (2nd) 545 (Ont. C.A.).

12I can appreciate that the applicant felt pressured by the mediator if his behaviour was as she described it. I cannot agree, however, that the behaviour she described may be characterized as illegitimate pressure which amounts to coercion so that the applicant had no choice but to sign the settlement and release. I say this because she was not alone with the mediator. Both her husband and her lawyer were present. She was being provided by them with emotional support and with legal advice, and there was no suggestion that the applicant’s health prevented her from understanding the legal advice that she received, particularly in conversations with her counsel in which the mediator did not participate. Also, if the applicant did not like the terms of the settlement, she had the choice to continue with her wrongful dismissal claim against the respondent. Even if the allegations about the mediator were true, they would not amount to duress in the circumstances of the mediation.

Not appreciating an outstanding claim

13The applicant’s argument that she signed the release without knowing that her expenses should have been covered by the respondent cannot amount to a justification for voiding the release or finding that it is not binding. The release clearly says that she is releasing the respondent from all claims, including those under the Code, that she “had, now has, or hereinafter may have” against the respondent. This includes claims for any and all specific heads of damages, including those that may or may not have been anticipated or considered by the applicant at the time that she signed the release. This is language that was reviewed by the applicant’s lawyer who provided the applicant with advice about the release before she signed it. The applicant cannot argue now that she did not agree to it.

Conclusion

14Based on the submissions of the applicant, I conclude that the applicant did consent to the terms of the settlement which released the respondent from any claims including any claims for specific heads of damages that the applicant learned might have been compensable (or at least a factor in her negotiations), after she signed the release, with respect to her employment. There are no allegations by the applicant to support a finding that she was coerced or forced to sign the settlement and release. I find it would be an abuse of process to allow the Application to proceed in the circumstances.

order

15The Application is dismissed.