Dawson v. Eclipse Advantage Canada ULC, 2016 HRTO 1469

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Carrie Dawson Applicant

-and-

Eclipse Advantage Canada ULC Respondent

DECISION

Adjudicator: Keith Brennenstuhl Date: November 16, 2016 Citation: 2016 HRTO 1469 Indexed as: Dawson v. Eclipse Advantage Canada ULC

APPEARANCES

Carrie Dawson, Applicant Self-represented

Eclipse Advantage Canada ULC, Respondent Rachel Goldenberg, Counsel

Introduction

1This Application 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”). In its Response, the respondent requested that he Tribunal dismiss the Application on the basis that the applicant signed a full and final release (“Release”) releasing the respondent from, among other things, claims under the Code. This was part of a settlement in which the applicant received termination monies in consideration for her executing the Release.

2The applicant takes the position that her Application should not be dismissed because the respondent made a fraudulent misrepresentation which induced her to sign the Release and because she was pressured into signing it.

3The respondent alleges that the decision to terminate the applicant was made as part of a restructuring. The applicant alleges that the decision to terminate her was made for discriminatory reasons.

4In any event, on November 19, 2015, the respondent advised the applicant that her employment was terminated. At the time, the applicant was offered a severance package, which was conditional upon signing a “Separation and Release Agreement” by November 23, 2016. The severance package included a severance payment that was in excess of statutory entitlements and $2,000.00 reimbursement toward outplacement services.

5The applicant accepted the severance offer and executed the Release on November 20, 2015. She accepted the severance payment and the reimbursement for outplacement services. She did not seek legal advice before signing the agreement even though the agreement clearly advises that she should seek legal advice before executing the agreement.

analysis and decision

Fraudulent misrepresentation

6The applicant argues that the Release should be set aside and she should be permitted to proceed with her Application because she was misled as to the circumstances surrounding her termination at the time she entered into the settlement agreement with the respondent. Specifically, the applicant submits that she signed the Release because the respondent represented to her that the reason for her termination was restructuring. She indicates, however, that shortly after her termination she learned that the reason she was let go was that management had performance issues with her which the applicant denies.

7In essence, the applicant argues that she was induced into the settlement agreement with the respondent because of the respondent’s fraudulent misrepresentation that there was a restructuring.

8Where one party to an agreement deliberately misleads another party and thereby induces him or her into entering an agreement, the agreement may be set aside on the basis of fraudulent misrepresentation. See Wedderburn v. Air Liquide Canada, 2010 HRTO 691.

9It is unclear to me whether the changes in the workplace outlined by the respondent amounted to a “restructuring” as that term is commonly used. It is clear though that the respondent allegedly had performance issues with the applicant and that the duties of the applicant were performed by other employees following the applicant’s termination.

10That being said, I turn to the Tribunal’s decision in O’Regan v. Firestone Textiles, 2010 HRTO 502, where at sub-paragraph 20 of paragraph 3, it is stated:

It is well-established at common law that in certain limited circumstances, a false representation can have the effect of invalidating a signed legal document: see Corfax Benefit Systems Ltd. V. Fiducie Desjardins Inc., (1997) 37 O.R. (2d) 50. However, there are certain elements that must be proven in order to establish this result, including that the representations were made by the respondents, that they were false in fact, that they were known or should have been known to be false, and that they induced the applicant to enter into the agreement to her prejudice. It is not clear on the evidence that all of these required elements have been satisfied by the applicant.

11Likewise, it is not clear to me on the evidence that the applicant has met all of the required elements to establish fraudulent representation.

12In O’Regan, the Tribunal continues at sub-paragraph 21:

However, there is a fifth required element, which is that within a reasonable time after discovery of the falsity, the applicant elected to void the agreement and accordingly reputed it.

13In this case there is no dispute that the applicant did not ever elect to void or repudiate the agreement, which of course would have required the applicant to return the severance monies that she received from the respondent, which she has not done and also, according to the applicant, she cannot do.

14As a result I find that the applicant has not satisfied the fifth required element to justify overturning the Release.

Duress

15The second reason the applicant provided for why she should not be bound by the release was that she felt pressured into signing it. I completely understand that the termination of one’s employment is a stressful event and that the applicant was likely feeling some pressure at having to make a decision in relation to the Release. This is common in all termination cases.

16However, it is only pressure amounting to duress that will justify setting aside a signed release. The circumstances of this case fall far short of duress which has been defined by the courts as “coercion of the will”: Taber v. Paris Boutique & Bridal Inc. (Paris Boutique), 2010 ONCA 157 paras. 8 – 9. In this case, the respondent provided the applicant with four days to consider whether she wished to accept the amount offered to her in return for a signed release. She did not sign the Release under protest. There is no evidence that the respondent pressured the applicant to sign to the point of duress.

17Although she did not consult legal counsel before signing the Release the respondent clearly advised the applicant that she should consult legal counsel before signing. In all these circumstances, I am not persuaded that the applicant experienced duress within the legal meaning of the term. Therefore, I do not find that the Release should be set aside for this reason.

order

18For the reasons set out above, the Application is dismissed. I find that it would be an abuse of process to proceed with this Application due to the full and final Release signed by the applicant.