Richards v. Kinross Gold Corporation, 2016 HRTO 1181

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Emma Jane Richards

Applicant

-and-

Kinross Gold Corporation

Respondent

DECISION

Adjudicator: Keith Brennenstuhl

Date: September 7, 2016

Citation: 2016 HRTO 1181

Indexed as: Richards v. Kinross Gold Corporation

APPEARANCES

Emma Jane Richards, Applicant

Self-represented

Kinross Gold Corporation, Respondent

Jason Beeho, Counsel

Introduction

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

2The respondent requested that the Application be dismissed as an abuse of process as the applicant had executed a full release in connection with any claim arising from her employment.

3The applicant filed a response to the request for dismissal.

4The preliminary hearing was held by telephone conference call on August 31, 2016. All parties attended.

5For the reasons stated below, the Application is dismissed.

background

6At the time of her termination on September 10, 2015, the applicant was the Site Security Manager for the respondent’s main site of mining operations at Tasiast, Mauritania. The reasons given for the termination was departmental restructuring to cut costs. The parties apparently agreed on exit arrangements to be provided to the Applicant, pursuant to which the Applicant signed a “Final Release and Indemnity Agreement” in favour of the respondent on September 23, 2015.

7Allegedly, on September 20, 2015, the applicant had learned that her second in command was being promoted into her former position and that his role was intended to be left unfilled.

8On September 25, 2015, the applicant learned that when her replacement was her subordinate, he was earning more than her and that he had been offered substantially more than her salary to fill her former position.

9On September 29, 2015, the applicant filed her Application in which she alleges: “I believe I was discriminated against because I was not paid the same level as a male who reported to me in my department despite holding more advanced qualifications and having been employed at the company for approximately the same length of time”.

10In respect of the release the applicant asserts:

“…[it] was signed before I was made aware of the Human Rights issue. I signed on 23^rd September because receipt of severance pay and termination pay would have been withheld otherwise and I did not know until 25^th September that there was an outstanding Human Rights issue. If I had known on the 23^rd that there was an issue, I would not have signed the paperwork”.

analysis and decision

11The Code does not explicitly bar applications where an applicant has executed a release in favour of a respondent, but the Tribunal has authority to prevent an abuse of process: see section 23(1) of the Statutory Powers Procedures Act, R.S.O. 1990, c. S.22, as amended. On a number of occasions, the Tribunal has found that filing an application after executing a release may amount to an abuse of process: Perricone v. Fabco Plastics Wholesale, 2010 HRTO 1655; Wedderburn v. Air Liquide Canada, 2010 HRTO 691; Dieter v. Transcontinental Printing Inc., 2012 HRTO 2171. The Tribunal, in Perricone at para. 39, has applied the doctrine of abuse of process in the context of a release as follows:

When two parties contract to settle legal matters between them, 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 altogether. This, in determining whether it would be an abuse of process to permit the Application to proceed, the question is not whether the applicant filed her Application in bad faith, but whether the contract (i.e. the Release) she entered into is legally binding.

12The wording of the instant release in unambiguous. The terms of the release executed by the applicant indicates that in exchange for a significant sum of money, she released the respondent “from any and all actions, causes of action, complaints, claims and demands whatsoever including those arising from my employment with the Company and the cessation of such employment.” She agreed that the respondent has “complied with the …Ontario Human Rights Code and all similar applicable in respect of my employment and for the termination of such employment.” She further represented: “I have had the opportunity to seek independent legal advice with respect to, and I fully understand this Agreement and the terms of settlement contained in the Letter.”

13At the hearing the applicant indicated that she, in fact, had the benefit of independent counsel. She also had a one-month lapse between obtaining the release to the deadline for its execution set out in the release.

14The release satisfies all the requirements for enforceability. The terms are clear, there was reasonable consideration, there was an opportunity for reflection, and obtaining legal advice.

15In Pritchard v. Ontario (Human Rights Comm.), 1999 CanLII 15058 (ONSC), the Court set out the factors for determining whether a release should be set aside. 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 Tribunal has found that 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.

16There were no allegations or evidence that any of these factors impacted the applicant. She indicated that she signed the release believing that she would not otherwise receive her statutory entitlements; however, she has not argued that this is evidence of economic pressure.

17Her position essentially is that the release does not extend to her human rights Application or claim because it is a claim she did not know or suspect to exist in her favour at the time of executing the release, which if known to her would have affected her settlement with the respondent.

18In my view, the parties clearly intended to end their relationship and go their separate ways. While there is no explicit language in the release with respect to claims or actions not known or contemplated at the time of execution of the settlement, I find that any claims of this nature have been released by virtue of the following language in the release: “I hereby release and forever discharge the Company…from any and all actions, causes of action complaints, claims and demands whatsoever including those arising from my employment with the Company….” (emphasis mine). In my view, this language is sufficiently broad to capture all claims, known or unknown, relating to her employment with the respondent.

19The respondent entered into an agreement with the applicant and complied with its terms. In my view, the respondent must be entitled to rely upon a settlement agreement and release. To set aside the release and allow the Application to proceed would be an abuse of process in the circumstances.

20For these reasons the Application is dismissed.