HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Bradly Gardiner
Applicant
-and-
London Transit Commission
Respondent
DECISION
Adjudicator: Dawn J. Kershaw
Indexed as: Gardiner v. London Transit Commission
APPEARANCES
Bradly Gardiner, Applicant
Self-represented
London Transit Commission, Respondent
Cheryl Rovis, Counsel
Introduction
1This Decision explains why the Tribunal is dismissing this Application, which 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 applicant worked for the respondent as a manager of fleet operations. On September 24, 2013, the respondent terminated the applicant’s employment for cause.
3The respondent paid the applicant a sum of money to “sever all employment relations and to settle any and all claims in dispute between the parties arising from or related to [the applicant’s] employment”, and in exchange for the applicant signing a full and final release (“release”) on October 31, 2013.
4The applicant in the release, releases the respondent from “any and all claims and demands whatsoever, including “any claims for wages, salary, bonus and any other remuneration, as well as any benefits due under any LTC policies and also from all manner of action, or actions, suit or suits, cause or causes of action, claims or demands for vacation pay, damages, costs, loss of service, expenses, vacation pay, termination pay and severance pay […] arising directly or indirectly out of or relating to his employment or the termination of such employment” [emphasis added].
5The applicant filed this Application on December 3, 2014. The respondent has not filed a full Response. It requests dismissal of the Application on the ground that the Application is barred because the applicant signed the release.
6The Tribunal issued a Case Assessment Direction, dated February 12, 2015, in which it directed that a preliminary hearing and a summary hearing be held. The purpose of the preliminary hearing was to determine if the Application is an abuse of process because the parties already entered into an agreement that included a release. The purpose of the summary hearing was to determine if the Application has any reasonable prospect of success, or in other words, whether the applicant can point to any facts which if proven can show that the adverse treatment he alleges is based at least in part on his disability.
7The Tribunal held the preliminary and summary hearing by teleconference on June 16, 2015 to determine whether the Application can proceed.
Applicant’s position
8The applicant argues the release states he would have benefits to the age of 65, and that such benefits include the waiver of premiums for his OMERS pension. He believes it is part of the agreement he and the respondent entered into.
9He submits he is not asking that the release be set aside, but that the respondent live up to it.
10The applicant argues that when he signed the release and agreement, long-term disability was not in view, but the waiver of premiums is included in the agreement and release because he argues that under the agreement he is entitled to “benefits”, of which he argues this is one. While he cannot prove it, someone told him the reason the respondent is not living up to its agreement with him is because of his disability.
11The applicant further argues he signed the release under duress and it was therefore not a binding contract. If he did not sign the agreement and release he would have been in a financial mess. He further submits he was under stress and had been off work for mental health issues since September 5, 2013.
12The Tribunal asked the applicant about the fact that it appeared he was represented by a lawyer throughout. He admits he was represented, but submits that the lawyer did not give him much advice about the agreement and release, but just gave it to him to read and glean from it what he could. He submits the lawyer did not really explain the agreement and release to him. He points out that the situation he was in when he was terminated was not a familiar one for him, nor was dealing with a lawyer.
Respondent’s position
13The respondent argues the applicant hired a lawyer with respect to his termination. The parties entered into negotiations and reached a settlement of all issues.
14The respondent points to a recital in the Agreement and Release that states:
AND WHEREAS the parties have agreed to sever all employment relations and to settle any and all claims in dispute between the parties arising from or related to [the applicant’s] employment with the [respondent] or the termination thereof and all matter directly or indirectly related thereto.
15The respondent further points to paragraph 1 of the Agreement and Release that states:
[The applicant] accepts that the terms of this Agreement and Release (“Agreement”) constitute a complete and final resolution of all issues, directly or indirectly, related to his employment, the cessation of or termination of such employment and his retirement from LTC effective September 24, 2013.
16Finally, the respondent also points to the release as set out in paragraph 4, above.
17The respondent submits these paragraphs in the agreement and release preclude the claim the applicant brings in the Application. The respondent submits the benefit the applicant is seeking is not one that was negotiated as part of the agreement, and the applicant signed the agreement and release on the basis of the benefits he was able to negotiate.
18The respondent submits what the applicant seeks is an additional benefit to what he was able to negotiate with the respondent when he signed the agreement and release, and this is not the role of the Tribunal, nor is it the Tribunal’s role to interpret an agreement made between the parties.
19The respondent relies on the case of Dickson v. General Motors of Canada Limited, 2013 HRTO 1347 in which the Tribunal held it was not its role to assess the appropriateness of the settlement agreement between the parties. The respondent submits the applicant is trying to set aside the release, which he should not be permitted to do.
20The respondent further argues the applicant’s submissions with respect to the legal advice he received before signing the agreement and release is not sufficient to set it aside. The applicant had legal advice before he signed the agreement and release. He retained counsel immediately and was represented throughout the process.
21The respondent argues the applicant’s submission with respect to duress also do not meet the threshold required to set aside the agreement and release. The respondent submits there was no evidence of any unlawful coercion on the applicant to sign the agreement and release. The respondent submits the applicant entered the agreement freely, having had legal representation.
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 obtained legal advice, and had legal representation throughout, including when he signed the agreement and release. He does not deny getting legal advice, although he opines it was not much advice.
26With respect to the applicant’s mental health, even if I accept he had mental health issues at the relevant time, there was no indication that he was suffering from an illness or disability that prevented him from understanding the agreement and release (See, Lauriault v. UTi Canada Inc., 2010 HRTO 1843).
27The applicant received compensation that included an amount for accrued vacation pay and an amount representing a retirement allowance. 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. It is not the Tribunal’s role to assess the appropriateness of a settlement the applicant entered into. (See, Dickson, para. 33).
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., 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 to which he had legal counsel.
30There 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 arising directly or indirectly 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.
32Given my finding with respect to the release, I need not address the parties’ submissions with respect to no reasonable prospect of success.
order
33The Application is dismissed.
Dated at Toronto, this 18th day of June, 2015.
“Signed By”
Dawn J. Kershaw
Vice-chair