HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Petrina Mattison Applicant
-and-
Toronto East General Hospital Respondent
DECISION
Adjudicator: Dawn J. Kershaw Date: August 12, 2016 Citation: 2016 HRTO 1077 Indexed as: Mattison v. Toronto East General Hospital
APPEARANCES
Petrina Mattison, Applicant Self-represented
Toronto East General Hospital, Respondent Allan Wells, Counsel
Introduction
1This Decision explains why the Tribunal is dismissing this Application, which alleges reprisal and discrimination with respect to employment because of record of offences contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). I note that the ground upon which the applicant commenced this Application likely is an error and is not the reason I have dismissed this Application. I have assumed for the purpose of this preliminary hearing that the applicant has proper grounds for her claim.
2The applicant worked for the respondent as a registered practical nurse from May 26, 2006 until August 14, 2015 when the respondent terminated the applicant’s employment for cause.
3The applicant’s union commenced four grievances on her behalf, including one related to the termination of her employment. On September 8, 2015, at a meeting to try and resolve the grievances in advance of the arbitration date, the parties came to an oral agreement, and the union wrote and requested that the arbitration scheduled for September 21, 2015 be cancelled.
4On September 24, 2015, the union wrote to the respondent indicating that the applicant disagreed with the settlement that by that time had been committed to writing, and as a result the union intended to proceed to arbitration. The respondent took the position at the arbitration that the parties had an agreement to which the parties should be bound.
5The arbitrator heard submissions from the respondent and the union and concluded that the parties had an agreement on September 8, 2015, which included the respondent paying the applicant a sum of money in exchange for her resigning her employment and signing a release. The arbitrator held that the union knew, and the applicant probably knew, that signing a release would mean the applicant would not have the right to pursue any further grievances or complaints against the respondent for events that transpired during the course of her employment in any forum.
6The arbitrator stated that the fact the applicant refused to sign the Minutes of Settlement did not change his view that there was a settlement.
7Subsequent to the arbitrator’s decision, the union sent a letter to the applicant, dated January 25, 2016, reiterating that it previously had sent her the arbitrator’s decision and in order for her to receive the settlement money from the respondent, she and the union had to sign the settlement documents. The letter further states:
What the Union is requiring from you in writing, is one of two things; return the Memorandum of Settlement signed, or you can return it unsigned, by no later than February 4, 2016 […]
8The applicant signed the Minutes of Settlement on February 3, 2016 [referred to by the union as the Memorandum of Settlement] and the release on February 15, 2016. The release states in part:
Without limitation, I specifically covenant, represent and warrant to the Releasees that I have no further claim or grievance against the Releasees arising out of my employment or the cessation of such employment […] I further represent that I am aware of my rights under the Human Rights Code and in consideration of the above payment I am not asserting any rights or advancing a human rights claim or complaint, whether through arbitration or the Human Rights Tribunal of Ontario.
9The release also states:
I have read and understood this Release and have obtained independent legal advice with respect thereto from the Union. I understand that this Release contains a full and final release of all claims that I have or may have against the Releasees relating to my hiring and employment or the cessation of such employment.
10The applicant filed this Application on September 9, 2015. The respondent has not filed a full Response and requests dismissal of the Application on the ground that the Application is barred because the applicant signed the release.
11On June 17, 2016, the Tribunal sent the parties a Notice of Preliminary Hearing in which it directed that a preliminary 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 a settlement that included a release.
12The Tribunal held the preliminary hearing by teleconference on August 5, 2016 to determine whether the Application can proceed.
PRELIMINARY ISSUE
13The applicant alleged at the outset of the hearing that in advance of the hearing she had asked the Tribunal if certain witnesses could participate in the hearing. Because she received no response, she told the witnesses to attend. At the outset of the hearing, no witnesses were present, but during the first half hour of the teleconference call, two individuals joined the call.
14The applicant explained before these parties joined the call that they could testify about the respondent’s treatment of the applicant during her employment. I advised the applicant that such evidence would be required at a full hearing if this matter proceeds, but was not required for the purposes of this preliminary hearing. In addition, I advised that as set out in the Notice of Preliminary Hearing if the applicant intended to call evidence, she was required to file a summary of the witness’ evidence in advance of the hearing, which she did not do. For both these reasons, I advised I would not allow their testimony.
15When the first party joined the call, she identified herself as Gloria Small, a union representative. After hearing submissions, I advised that she would be permitted to participate in the call as an observer. Prior to my finishing my oral ruling, Ms. Small left the call.
16Approximately 10 or 15 minutes later, another potential witness, Alton Jeffrey, joined the call. I advised him of my earlier ruling that his evidence was not required, and he too left the call.
Applicant’s position
17The applicant argues she never intended to sign the release and was coerced into signing it by both the union and the respondent. She submits the union did not fight for her.
18She ultimately signed the release because the union’s last letter to her told her if she did not sign, the settlement would go through without her. I asked if she was referring to the union’s January 25, 2016 letter, which I read to her at her request, and she advised she was, but that she also got another letter, which was not submitted by either party in which the union said the settlement would go ahead without her.
19The applicant further submits another reason she signed the release was because when she contacted Employment Insurance, she was advised she was not entitled to benefits because the respondent terminated her with cause, leaving her with no way to financially meet her and her family’s basic needs. Therefore, she took the money to survive.
20Prior to signing the release, the applicant sought advice from two lawyers, one of whom worked at the Human Rights Legal Support Centre. She spoke to them about her concern that she was giving up her rights by signing the Minutes of Settlement and release. She submits they told her to go ahead and sign, but advised her she would have to explain why she signed in order to be able to proceed with this Application. She submits she was told by one lawyer that whether she signed or not, they would proceed with or without her. I asked the applicant if she specifically reviewed the release with the lawyers, and she advised that she had read it to them.
21The applicant also argues the monetary settlement was too low, although in her view the core problem was not about the money.
22Finally, the applicant submits the Application should be allowed to proceed because she was denied arbitration and never had the opportunity to tell the arbitrator the full story through her testimony and the testimony of her witnesses.
Respondent’s Position
23The respondent submits that after hearing the applicant’s evidence and the union’s and respondent’s submissions, the arbitrator determined there was a settlement between the parties as a result of their discussions on September 8, 2015. The applicant then filed the present Application one day after that on September 9, 2015, which the respondent did not know until after the applicant returned the signed release and Minutes of Settlement and the respondent paid the applicant the settlement monies.
24The respondent denies the applicant was coerced into signing the Minutes of Settlement and release, and in fact the union gave the applicant a choice, as set out in its January 25, 2016 letter in which the union states the applicant can either sign or not sign the documents.
25In addition, the respondent relies on the fact that the applicant admits she received independent legal advice prior to signing the Minutes of Settlement and release, for its position that she was not coerced into signing. It further relies on the fact that the applicant had the documents for two weeks before she signed them.
26The respondent argues that even if it was true that the applicant signed the release because she wanted the money, the Tribunal should not overturn the settlement because it is not a ground on which to do so because financial pressure does not constitute coercion.
27With respect to the applicant’s submission that the payment was too low, the respondent argues the sum paid not only exceeded the applicant’s Employment Standards Act 2000, S.O. 2000, c. 4 entitlement, but in fact the respondent owed the applicant nothing because it terminated her for cause.
decision and analysis
28Section 23(1) of the Statutory Powers Procedure Act, R. S.O. 1990, c. S.22, as amended, provides that a tribunal may make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes. This is mirrored in Rule A8.1 of the Social Justice Tribunals Ontario Common Rules found in Part 1 of the Human Rights Tribunal of Ontario’s Rules of Procedure.
29The 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.
30In 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.
31The 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.
32In this case, I am satisfied that the applicant understood the significance of the release, having obtained legal advice from not one but two lawyers. She admitted she was concerned about losing her right to pursue her Application and reviewed the release with the lawyers.
33I find that the applicant received compensation that exceeded her Employment Standards Act entitlement, and was terminated with cause. She did not show that the monetary compensation was not sufficient nor fair consideration for signing the release. In addition, it is in any event not the Tribunal’s role to assess the appropriateness of a settlement the applicant entered into. (See, Dickson v. General Motors of Canada Limited, 2013 HRTO 1347, para. 33).
34With respect to the applicant’s argument of duress, or coercion as she termed it, 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.
35I accept the applicant was under considerable financial pressure as a result of losing her job and discovering she was not entitled to Employment Insurance. 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 that the applicant faced any pressure that went beyond what happens in most cases.
36The applicant also did not show there was any emotional or psychological pressure on her that was so great as to amount to a coercion of her will. The applicant had the Minutes of Settlement and the release for two weeks, obtained legal advice with respect to those documents from two different lawyers, and specifically reviewed the release with them. After she obtained that advice, she chose to sign the Minutes of Settlement and release. There is no basis to conclude that the release was signed under duress and should therefore be set aside.
37Because the release provides for a full and final settlement of any claims arising out of the applicant’s employment with the respondent, and the applicant specifically acknowledged she obtained legal advice, and also represented that she was aware of her rights under the Human Rights Code and was not asserting any rights or advancing a human rights claim or complaint, whether through arbitration or the Human Rights Tribunal of Ontario, it would be an abuse of process to allow this Application to continue in the Tribunal’s process. See, e.g., Charass v. Centre for Addiction and Mental Health, 2016 HRTO 50; Senior v. City of Toronto Bendale Acres Long Term Care Homes and Services, 2016 HRTO 133.
order
38The Application is dismissed.
Dated at Toronto, this 12^th^ day of August, 2016.
“Signed By”
__________________________________
Dawn J. Kershaw Vice-chair