Alam v. Toyota Tsusho Canada Inc., 2015 HRTO 571

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

AKM Atharul Alam

Applicant

-and-

Toyota Tsusho Canada Inc.

Respondent

DECISION

Adjudicator: Dawn J. Kershaw
Date: May 5, 2015 Citation: 2015 HRTO 571 Indexed as: Alam v. Toyota Tsusho Canada Inc.

APPEARANCES

AKM Atharul Alam, Applicant Self-represented

Toyota Tsusho Canada Inc., Respondent Ben Aberant, Counsel

Introduction

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

2The applicant worked for the respondent as an IT specialist. On May 22, 2014, the respondent terminated the applicant’s employment on a without cause basis.

3The respondent paid the applicant a sum of money in lieu of notice and in exchange for the applicant signing a full and final release (“release”) on June 4, 2014.

4The release prevents the applicant from making an application under the Code “relating to his employment with the Employer or the termination of such employment”, and states that the applicant is aware of his rights under the Code and that he confirms he is not and does not intend to assert such rights or advance a claim under the Code. The release then states the applicant “releases and forever discharges the Releasees [which includes the respondent] from any such Claims”.

5The applicant filed this Application on July 25, 2014. The 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 the release.

6The Tribunal held a preliminary hearing by teleconference on March 26, 2015, to determine whether the Application can proceed.

applicant’s position

7The applicant argues he signed the release under duress and it was therefore not a binding contract. He was under significant financial distress, which was used as leverage to have him sign the release, which constituted duress.

8The applicant submits he signed the release because he was put in an uncomfortable position and saw no other option but to sign. He thought the respondent would give him a chance to explain his side of the story. He notes the letter he got on the day he was terminated said he had to sign the release or he would not get his retirement benefits.

9The applicant agrees he received legal advice but that the lawyer advised him her specialty was not human rights. He submits she did not give him legal advice with respect to what he was signing. He disclosed to the Tribunal the lawyer’s letter dated May 29, 2014, in which she explained her specialty was not human rights law, but it also indicates that the applicant confirms receiving her letter of opinion and that he fully understands what it says. The applicant did not provide to the Tribunal a copy of the opinion letter.

10The applicant also argues his human rights are inalienable and therefore the release is not binding.

11The applicant also provides a May 6, 2014 doctor’s note from three weeks before his termination that states he has insomnia and anxiety due to office-related stress. It further states he is under a lot of stress, which is causing anxiety and frustration.

12The applicant submits that the termination pay he received was less than others got when they were terminated, which is why the respondent should not have the impression that signing the release would stop him from bringing this Application.

respondent’s position

13The respondent argues the release is comprehensive and the applicant releases his rights under the Code.

14The respondent further argues the applicant received legal advice before signing the release. On May 27, 2014, the applicant’s legal counsel wrote to the respondent to request an extension to June 6, 2014 of the May 30, 2014 deadline to sign the release.

15On May 29, 2014, the respondent’s representative agreed to extend the deadline to June 6, 2014.

16On June 2, 2014, the applicant e-mailed a representative of the respondent and requested he be re-hired. The respondent’s representative responded on the same day that it was not possible.

17The applicant then requested on June 3, 2014 that the amount of money offered to him in lieu of notice be increased from 14 to 20 weeks. He further advised:

[I] went to counsel to get reviewed my termination package, for one time they charged me $565 which is too pain for me (I followed the instruction written on the termination package to make sure I understand before sign and avoid any confusion in later date).

18On June 4, 2014, the respondent’s representative advised the applicant the respondent was not going to reverse the termination, and asked him to advise her if he was going to accept the offer that was made to him. He responded the same day and advised he could meet her that day and sign the acceptance to the termination letter and the release, which he did. He then was provided the 14 weeks’ severance pay and 14 weeks’ continuation of benefits, which was in excess of the statutory minimums. The respondent also provided him with a reference letter on June 13, 2014.

19The respondent argues the applicant does not deny signing the release, and provides no particulars of the duress he claims. The respondent submits the applicant was given an extension to review the release and received legal advice before signing it.

20With respect to the doctor’s note, the respondent submits that the things from which the doctor said the applicant was suffering do not constitute unlawful duress or coercion.

21The respondent argues it would be an abuse of process to allow this Application to proceed.

analysis

22The 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.

23In Better Beef Ltd. v. MacLean, 2006 CanLII 17930 (ON SCDC) 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.

24The decision in Pritchard v. Ontario (Human Rights Comm.), 1999 CanLII 15058 (ON SC), 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.

25I am satisfied that the applicant understood the significance of the release. The applicant held an IT position in the respondent company. While he may not be familiar with legal terminology, he obtained legal advice. Although the lawyer stated her specialty was not human rights law, it is likely her letter of opinion would have explained to the applicant the significance of signing a release. My finding that the applicant had legal advice with respect to the release is strengthened by the fact that the applicant stated he took the release to the lawyer to make sure he understood it before he signed it and so there would be no confusion later. In addition, even if the lawyer did not provide this advice, which is unlikely, the key paragraphs in the release including the bar on bringing a Code application are in sufficiently plain language that one does not need to be a lawyer to understand them.

26With respect to the applicant’s medical situation, I accept he had had medical attention for anxiety, insomnia and frustration, but there was no indication that he was suffering from an illness or disability that prevented him from understanding the termination letter and release (see: Lauriault v. UTi Canada Inc., 2010 HRTO 1843).

27The consideration the applicant received was in excess of his 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. The applicant also received a reference letter. The applicant may not now be satisfied with the terms he agreed to, but he has not shown that the package does not amount to sufficient and fair consideration for signing the release.

28With respect to 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.

29I 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 addition, the applicant was given the release on May 22, 2014, and did not sign it until June 4, 2014.

30During that time, he negotiated with the respondent to try and have it re-hire him and also to try and get more money. He also consulted a lawyer. There is no basis to conclude that the release was signed under duress and should therefore be set aside.

31Because the release provides for a full and final settlement of any claims, including any human rights 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

32The Application is dismissed.