HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Paul Pitoscia
Applicant
-and-
Martin-Brower of Canada Company
Respondent
DECISION
Adjudicator: Josée Bouchard
Indexed as: Pitoscia v. Martin-Brower of Canada Company
APPEARANCES
Paul Pitoscia, Applicant
Stephanie Bent, Paralegal
Martin-Brower of Canada Company, Respondent
Kristin Taylor, Counsel
Introduction
1The applicant filed an Application on September 30, 2015 pursuant to s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of disability, record of offences and reprisal or threat of reprisal. The purpose of this Decision is to address the respondent’s request to dismiss the Application on the basis that the applicant signed a Memorandum of Settlement (“MOS”), dated May 15, 2015, which fully resolved a grievance based on the same facts as the Application.
2The applicant does not dispute the following:
that the MOS relates to the same facts as this Application;
that pursuant to the MOS he received a one-time lump sum of $15,000 (with no deductions) in lieu of reinstatement, cashed the cheque and did not return the money;
that the MOS contains a provision not to take any further actions, grievances, complaints or claims against the respondent relating to the applicant’s employment and his termination; and
that the MOS provides that it is a full and final settlement of all matters relating to his employment with the respondent and his termination, including claims pursuant to the Code.
3The applicant argues that he felt pressured and coerced to sign the MOS. The issue before me is whether the applicant freely signed the MOS.
4The Tribunal held a Preliminary Hearing on September 7, 2016, to address the respondent’s request to dismiss the Application.
decision
5The Application is dismissed. I am satisfied that the applicant freely signed the MOS, which included a full and final release in respect to making any claims under the Code in relation to the applicant’s termination. Consequently, it would be an abuse of process for the Application to proceed.
Evidence
6I heard from two witnesses, the applicant and Paulo Ribeiro, national representative for the Union, for the respondent.
7The applicant worked for the respondent for approximately 15 years before he was terminated from his employment on April 22, 2015. On April 27, 2015, the Union filed a grievance on behalf of the applicant demanding his reinstatement and compensation for his losses. Although the applicant testified that he did not recall seeing the grievance, in his Application he clearly states that he filed a grievance through the Union in relation to his termination. The applicant did not dispute the Union’s authority to file a grievance in his name and he testified that he trusted his Union representative.
8Approximately one week after his termination, Mr. Ribeiro contacted the applicant to invite him to a meeting to discuss the grievance process and his options. Mr. Ribeiro testified that the meeting was to be held at the Union’s offices. However, upon arrival at the offices, the parties soon realized that the offices were closed as it was Friday, May 15, 2015, before the long weekend. Mr. Ribeiro offered to reschedule but the applicant wanted to proceed with the meeting. As a result, the applicant and Mr. Ribeiro met in Mr. Ribeiro’s car for what the applicant remembered as 10 minutes and what Mr. Ribeiro remembered as closer to one hour. This discrepancy is not material to my findings.
9Mr. Ribeiro testified that, notwithstanding the unusual location of the meeting, there was nothing unusual about the grievance process. He told the applicant that he could have a witness present at the meeting but the applicant declined the offer. Mr. Ribeiro testified that he did not offer access to legal representation to the applicant. He testified that during a grievance process, the Union represents its members and does not typically offer access to legal representation. Mr. Ribeiro noted however that the applicant could have sought independent legal advice if he wished to.
10Mr. Ribeiro testified that he explained to the applicant his two options: to pursue arbitration or to sign the MOS. Mr. Ribeiro presented the pros and cons of pursuing arbitration. He explained to the applicant that he might not be successful at arbitration, and even if he were, conditions could be attached to his reinstatement. He told the applicant that he thought his case was weak. He also explained to the applicant that arbitration decisions are public and if the applicant were to lose, he would get nothing and the public decision could impact his job prospects.
11Mr. Ribeiro further testified that he explained to the applicant the outcome of agreeing to the MOS. He told the applicant that if he signed the MOS he would receive a lump sum of money and the respondent would be prevented from providing employment references about him, including negative references. As such, the applicant would not have a detrimental record of employment.
12Mr. Ribeiro testified that the applicant was agitated. He kept repeating that he was a good worker and his employer did not appreciate him. One moment the applicant would say that he wanted to fight the respondent, while the next he would admit that he no longer wanted to work for the respondent. Mr. Ribeiro told the applicant that he could take the MOS home and think about it, but he would eventually have to make a decision. Mr. Ribeiro testified that the applicant finally said that he did not need time to think about it as he no longer wanted to work for the respondent. The applicant signed the MOS.
13The applicant first testified that Mr. Ribeiro told him he could go to arbitration about his termination but he would not win his case. The applicant later admitted that Mr. Ribeiro told him that a win at arbitration was not guaranteed. According to the applicant, Mr. Ribeiro explained to him that if he did not have the right arbitrator, he would not stand a chance. Mr. Ribeiro also told him that the respondent does not like him, that “they want you out”. The applicant testified that Mr. Ribeiro warned him that if he lost at arbitration, the matter would be public and it could have an impact on his employment prospect.
14The applicant testified that Mr. Ribeiro kept on saying “just sign it”, “if you go this route it is better”, “if you are terminated, the other companies will know”. In cross-examination, the applicant indicated that Mr. Ribeiro offered him the choice of arbitration or signing the MOS, but because he was told he would lose at arbitration his only real option was to sign the MOS.
15The applicant testified that at the time of the meeting he had been out of work for about a month and a half and had “no money coming in”. He indicated feeling depressed and testified not knowing what he was doing at the time.
16The applicant testified that he did not ask for another opinion before signing the MOS, not even from another union representative or a friend. He was not told that he could get legal advice and he trusted his Union representative.
17The applicant testified that he makes it a practice to sign documents without reading them. He trusts people and he had no reason not to trust his own Union representative. He testified that when he saw the reference in the MOS to his termination he stopped reading. His heart sank and he understood the importance of the MOS. In his view, when a trusted Union representative “tells you to sign a document, you sign it”.
Reliability of Witnesses
18This is a case in which the reliability and credibility of the witnesses’ respective testimony is important:
When one is concerned with a witness’s veracity, one speaks of the witness’s credibility. When one is concerned with the accuracy of a witness’s testimony, one speaks of the reliability of that testimony. Reliability is influenced by a witness’s ability to “accurately observe, recall and recount” events. Credibility goes to the propensity to tell the truth or the “sincerity” of the witness. R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 97 C.C.C. (3d) 193 (ON C.A.) at p. 205.
19I prefer the respondent’s version of events of what transpired at the meeting. Mr. Ribeiro has extensive experience as a Union representative, has handled numerous grievances and has provided advice to grievors for a number of years. He had a good recollection of what happened at the meeting with the applicant and his testimony was clear, plausible and consistent.
20Although the applicant appeared sincere, I find that his recollection of what transpired at the meeting with Mr. Ribeiro less reliable. The applicant’s testimony was often inconsistent and exaggerated. For example, his recollection of Mr. Ribeiro’s advice to him that he had no chance of succeeding at arbitration is implausible and contradicted by his own testimony that Mr. Ribeiro offered him a choice between arbitration and signing the MOS.
submissions
21The respondent submits that the applicant was advised to read the MOS before signing it and he received solid advice from his Union representative. It maintains that the MOS was clear on its face and written in plain English and that the applicant indicated that he understood the significance of the document. The applicant was provided with options, to sign the MOS or to proceed with arbitration. The applicant received a sufficient and fair consideration for signing the MOS and he cashed the cheque. The respondent or the Union did not exert financial pressure on the applicant. Finally, the respondent argues that, even if the applicant testified that he was depressed at the time of signing the MOS, the applicant failed to file medical documentation to prove that he was incapacitated to the point where he could not sign.
22The applicant maintains that his emotional and mental condition at the time of the meeting were such that he could not think or fully understand what the MOS meant. He argues that he was pressured and coerced into signing the MOS. Although the applicant admitted to signing the MOS without reading it, he maintains that he had health issues and felt pressured by the fear of not having a job. The applicant submits that he is an average person with a grade 12 education and he does not have the mind of a legal or union representative. He thought that signing the MOS was his only real option. Without having read the MOS, he did not realize that his rights to pursue other avenues were gone.
DECISION AND ANALYSIS
23The Tribunal has the jurisdiction to dismiss an application where to proceed would be an abuse of process. This jurisdiction is confirmed by section 23(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, as amended, which 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 Tribunal has held that filing a human rights Application after concluding a binding memorandum of settlement arising from the same facts and issues would amount to an abuse of the Tribunal’s process. See Korets v. Chatwell Mastercare, 2010 HRTO 1324 (“Korets”) and Messiah v. Snap-on Tools of Canada, 2010 HRTO 1151 (“Messiah”).
24In Pritchard v. Ontario (Human Rights Comm.), 1999 CanLII 15058 (ON SC), (“Pritchard”) the Court addressed the circumstances to be considered in determining whether a release should be set aside. While Pritchard was decided under the former Code, the following factors have been applied since then in determining whether it would be an abuse of process to proceed with a hearing on the merits: (1) whether an applicant fully understands the significance of the release; (2) whether an applicant receives sufficient and fair consideration for signing the release; (3) whether there is evidence of economic pressure; and (4) whether there is evidence of psychological or emotional pressure amounting to duress. See also Korets, above at para. 13.
Full Understanding of the Significance of the Release
25I rely on Perricone v. Fabco Plastics Wholesale, 2010 HRTO 1655 (“Perricone”) to find that the applicant had a full understanding of the significance of the MOS. In Perricone, the applicant argued that she ought not to be bound by a release because she did not understand it, she was young and unsophisticated in legal matters, she was not provided with a copy of the release in advance, she was not offered an opportunity to get legal advice and no one explained to her what the release meant. The Tribunal found at para. 69:
I accept that the applicant is not sophisticated in legal matters and that the Release, although not long, is written in “legalistic” language. However, if, as the applicant contends, she chose to sign the Release without ensuring that she understood it, then she is responsible for that choice. There is no question that the applicant had the capacity to understand the Release. She testified that when she read the Release over on her own, later, she realized its significance. A party to a legal agreement cannot enter into it without taking the time and effort to understand it and then rely on her own actions as the basis upon which to resile from the agreement. This would be unfair to the respondents who were entitled to rely in good faith on the applicant who testified that she expressly told the respondents that she did understand what she was agreeing to.
26I am satisfied that the terms of the MOS in the case before me were clear, written in plain language, and unambiguously released the respondent from any claims arising out of the applicant’s employment or its termination, including any claims under the Code. Even though the applicant admitted to not being familiar with legal matters, I am satisfied that the applicant understood the significance of the MOS.
27The applicant chose to sign the MOS without reading it and he is responsible for that choice. There is no question that the applicant had the capacity to understand the MOS. In addition, the Union representative, whom he trusted, could have answered any queries he may have had about the MOS. A party to a legal agreement cannot enter into it without reading and understanding it and then rely on his own actions as the basis upon which to resile it.
Sufficient and Fair Consideration
28I find no reason to overturn the MOS because of insufficient and unfair consideration. The Tribunal in Messiah, above, was asked to overturn a settlement because the amount of the settlement was less than the applicant’s statutory entitlements, it was modest, and it was signed out of necessity. The Tribunal found as follows, at para. 29
First, I do not find in the circumstances of this case that it is appropriate to consider the amount of the settlement as a reason, in and of itself, to overturn a settlement. The applicant accepted a sum of money and other favourable terms as a resolution of all outstanding issues of his employment and resignation in a setting where he acknowledged that it was his choice to sign or not. Absent some finding of duress, coercion or other circumstances suggesting some fundamental unfairness, I do not find it appropriate to review the substance of the precise amount agreed to.
29Absent some finding of duress, coercion or other circumstances suggesting fundamental unfairness, I find it is not appropriate to review the amount agreed to in the MOS. The applicant chose to sign the MOS in part for the $15,000 without deductions, he cashed the cheque and he did not return the money. It was his choice and the applicant has not established that he was forced to do so.
Economic Duress
30It is also clear that the applicant did not sign the MOS under economic duress as defined by the Court of Appeal of Ontario in Taber v. Paris Boutique & Bridal Inc. (Paris Boutique), 2010 ONCA 157 at para. 9:
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. See: Stott v. Merit Investment Corp., 1988 CanLII 192 (ON CA), 63 O.R. (2nd) 545 (Ont. C.A.), at para. 89.
31The test to prove economic duress is high. Most people who have had their employment terminated face economic challenges, but financial difficulty alone cannot be sufficient to show economic duress. See Solcan v. Kitchener (City), 2011 HRTO 2205 (“Solcan”). I accept that the applicant was under financial pressure following his termination but he failed to show that he faced economic pressure that was illegitimate and amounted to coercion of the will as defined in jurisprudence.
Psychological or Emotional Pressure
32As with economic duress, the test for whether a person has signed a settlement under psychological or economic duress is high, “requiring an unlawful threat or coercion or subjection to improper pressure which overcomes a person’s will.” In addition, to support a claim of psychological or emotional duress, the Tribunal usually requires medical evidence. See O’Regan v. Firestone Textiles, 2010 HRTO 502 at para. 3(13), Korets and Solcan above. The Tribunal held in Perricone, above at para. 66:
Nor am I satisfied that the applicant signed the Release under psychological or emotional duress. The applicant may very well have been nervous and upset during the May 23, 2008 meeting but the evidence falls short of showing that she had no realistic alternative but to sign the Release because of emotional or psychological pressure which is what a finding of emotional or psychological duress would entail.
33The absence of guarantee of a win at arbitration, the time limited nature of an offer and “feeling backed into a corner” are not sufficient to find duress. See Solcan, above.
34The applicant has not demonstrated psychological or emotional pressure amounting to duress at the time of the signing of the MOS and he presented no medical evidence to that effect. The applicant described feeling upset and depressed during the meeting with Mr. Ribeiro. However, there is no evidence that he had a condition that prevented him from understanding the MOS and the various options available to him and it is clear that he made a choice based on his view of what was the preferred option given in the circumstances. See Solcan and Korets, above.
35The evidence also shows that the applicant made a choice to sign the MOS without reading it, and without seeking advice, legal or otherwise, because he was ready to end his relationship with the respondent. The applicant is bound by his choice and the evidence does not support the conclusion that the applicant’s consent to the MOS was extracted from him because of any threat, which is what would be required in order to set the MOS aside on the basis of duress. See Perricone, above.
36Having considered all the circumstances I am satisfied that the respondent is entitled to rely on the MOS signed by the applicant. It would be unfair to the respondent and an abuse of the Tribunal’s process to allow the applicant to pursue his Application under the Code.
Order
37The Application is dismissed.
Dated at Toronto, this 15th day of September, 2016.
“Signed By”
Josée Bouchard
Vice-chair