Horner v. Accenture Business Services for Utilities, 2016 HRTO 286

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

David Horner Applicant

-and-

Accenture Business Services for Utilities Respondent

DECISION

Adjudicator: Laurie Letheren Date: March 3, 2016 Citation: 2016 HRTO 286 Indexed as: Horner v. Accenture Business Services for Utilities

APPEARANCES

David Horner, Applicant Self-represented

Accenture Business Services for Utilities, Respondent Anne Gallop, Counsel

Introduction

1This Application, filed under section 34 of the Human Rights Code, R.S.O. 1990, c. H. 19, as amended, (the “Code”), alleges, among other things, that the applicant experienced discrimination in being terminated and through restrictions in the pension plan which he alleges have resulted in his receiving lower pension payments than he should be. The applicant also alleged discrimination on the basis of creed.

Background

2In 1977, the applicant began working for a company that was acquired by the respondent in 2003.

3In 1977 the company for which the applicant worked allegedly had a provision in its pension plan that prohibited employees who were under the age of 25 from contributing to its pension plan. That provision was allegedly removed from the plan in 2001 or 2002.

4On March 18, 2014, the respondent notified the applicant that his employment was being terminated on a without cause basis. He was provided with working notice to March 31, 2014 which was subsequently extended by one month. Following the working notice, the applicant was paid salary continuance for 18 months. The applicant and respondent continued to negotiate a severance package and, on April 24, 2014, the applicant and respondent signed a termination agreement. The applicant signed a full and final release on that same day.

5On April 29, 2015, the applicant filed his Application in which he alleges that due to the discriminatory provisions of the pension plan, the respondent’s interpretation of these provisions and his age, he experienced discrimination when he was terminated. He also alleges that he experienced discrimination on the basis of his creed. He alleges that because of his creed beliefs, he must be loyal and honest and that this loyalty and honesty was not rewarded by the respondent in the same way as those employees who “achieve at the expense of clients”.

6The respondent filed a Response in which it requested that the Application be dismissed in whole or in part on the basis that the applicant has signed a full and final release or on the basis that the Tribunal does not have jurisdiction to hear the Application as it was filed more than one year after the date of the last alleged incident of discrimination.

7The Tribunal held a Preliminary Hearing on December 10, 2015 to address the issues raised by the respondent as outlined in paragraph 6 above.

Has Another Proceeding Appropriately Dealt with the Substance of the Application?

8The respondent asserts that the Application should be dismissed as the applicant signed a full and final release. In this release, it is specifically stated that the applicant was aware of his rights under the Code and that he agreed that he had no further claims with respect to his employment with the respondent and in particular, he had no further claims under the Code. The respondent claims it would be an abuse of process to allow this Application to proceed.

9The Tribunal has the jurisdiction to consider on a preliminary basis whether or not some or all of an application ought to be dismissed based on abuse of process. Section 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 as it considers proper to prevent abuse of its processes.

10The Tribunal has held that the doctrine of abuse of process can apply in a variety of circumstances in which the Tribunal determines that it would be unfair to permit an application to continue. The circumstances that can give rise to an abuse of process may include, circumstances such as delay, re-litigation, settlement, as well as certain issues of procedural unfairness. In attempting to preserve and promote judicial economy, consistency and finality, the focus of the doctrine of abuse of process is on the integrity and coherence of the adjudicative process. See Campbell v. Toronto District School Board, 2008 HRTO 62 at para. 38, and Hazel v. Ainsworth Engineered, 2009 HRTO 2180 at para. 46-47.

11The applicability of the abuse of process doctrine in the context of this Application is readily apparent when one considers that one of the principles on which the doctrine is based is the principle of finality, described as “so crucial to the proper administration of justice.” See: Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63 at para. 38.

12There is no dispute that the applicant signed a termination agreement and a full and final release. The release contains the statement that the applicant warrants he has no further claims under the Code. In signing the release, it is clear that the applicant agreed that he would not bring any further claims under the Code with respect to his employment with the respondent or termination from that employment.

13In situations like this, when the parties contract to settle legal matters between them by signing minutes of settlement, 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. Thus, in determining whether it would be an abuse of process to permit the Application to proceed, the question is whether the Minutes of Settlement are legally binding and final.

14In numerous decisions, the Tribunal has discussed reasons on how minutes of settlement would be found to not be legally binding and final and, therefore, why the principle of finality might not be applied. These reasons include economic or psychological duress, fraudulent misrepresentation on the part of the respondent, and the lack of capacity by the applicant to understand the terms of the release.

15The applicant has advanced a number of arguments as to why I should find that the termination agreement and the Release are not binding on him.

Fraudulent Misrepresentation

16The applicant claims that the respondent has misinterpreted the pension plan and, as a result, his pension payout is significantly below what it should be. The applicant states that he requested a review of the pension calculations but that the respondent indicated in a letter that it had conducted a final review of the calculations and determined the applicant is being paid the correct amount from the pension fund. The applicant is also alleging that the respondent misread the pension plan and that this misinterpretation plus his age in 2014 were the motivation for his dismissal. He alleges that he experienced discrimination on the basis of his age when he was terminated.

17The applicant states that retirement and the pension plan were discussed during the negotiations of his termination package. He claims that since the pension plan was part of the whole agreement signed at the end of these negotiations, and because he is not receiving the correct payment amount from the pension plan, the settlement agreement cannot be binding as the respondent misrepresented the pension plan to him and has breached the contract.

18I do not find that there is evidence on which to base a finding that the respondent acted in any way that could be considered to be fraudulent misrepresentation. The respondent did not represent the amount that the applicant would receive from the pension plan in the settlement agreement or the release that the applicant signed.

19Having found that there was no misrepresentation on the respondent’s part, the reason why the respondent terminated the applicant’s employment and the timing of the termination are irrelevant to whether the agreement and release are binding. It is not appropriate for the Tribunal to determine whether the settlement is fair or appropriate. See King v. Ontario (Health and Long-Term Care), 2011 HRTO 2228 at para. 17 and Senior v. City of Toronto Bendale Acres Long Term Care Homes and Services, 2016 HRTO 133 at para. 11.

20The applicant appears to be claiming that, in the alternative, the release should not be found to cover the pension plan payments as he was not aware of the amount of these payments at the time of signing the termination agreement and release.

21I am satisfied the applicant was aware of the terms of the pension plan when he signed the release. He was aware of the former plan in which those who were under 25 could not contribute to the plan and was aware that was changed in 2001 or 2002.

22The applicant signed a letter that outlined the terms of the termination agreement. Above his signature is the section that states, “In signing below, I acknowledge and agree that: I have read, understood and accept the terms of this agreement; …”

23In paragraph 3 of this termination letter, it states that the respondent would continue to make contributions to the company’s Pension Plan until May 26, 2014. It can be assumed that since he had the date to which pension contributions would be made, he could have requested information from the pension plan administrator about the amount he would receive as pension payments once they commenced. He provided no evidence that he did make such a request prior to signing the termination agreement. On this basis, this Application can be distinguished from Perricone v. Fabco Plastics Wholesale, 2010 HRTO 1655 where the Tribunal determined that the release could not preclude the applicant from advancing an application for events of alleged discrimination that occurred after the signing of the settlement and therefore could not have been contemplated at the time of signing.

24The release clearly states that the applicant warrants to the respondent that he “has no further claims against [the respondent] for or arising out of his employment or the termination of such employment … and specifically including any claim under the …Human Rights Code.” The pension plan arises out of his employment and as the applicant stated, “the pension plan comes into play because of the termination”.

Capacity: Did the Applicant Understand and Appreciate the Settlement

25I find that the applicant has not provided evidence to support a finding that the settlement is not binding because he did not have the capacity to sign the termination agreement and the release.

26In order to determine whether the applicant lacked the capacity to sign the agreement and release, I must consider whether the evidence provided in support of this claim demonstrates that, on April 24, 2014, the applicant was not able to understand the information that was relevant to making the decision on whether or not to sign the agreement and release, or that the applicant was not able to appreciate the foreseeable consequences of making the decision to sign or failing to make that decision.

27During the hearing, the applicant stated that he was only bringing forward the allegations about his capacity to understand and appreciate the agreement and release because his support person was suggesting that he make this argument.

28The applicant stated that although he could not truly say or remember what his emotions were at time of signing, he admits that intellectually he did understand the terms and meaning of the release and the termination letter.

29The applicant also agreed with the respondent that he had legal advice throughout the negotiation of the terms of the termination and that above his signature on the termination agreement is the statement to indicate that he agreed that he had either sought independent legal advice with respect to the terms of this agreement or had knowingly waived this right.

30The applicant submitted a medical document dated December 10, 2015. I find the document does not support a finding that he lacked the capacity to sign the termination agreement and release on April 24, 2016. The letter makes no mention of his mental or physical state on that date.

31The applicant did not make any claim that he signed the termination agreement and release under economic or psychological duress.

32In summary, the applicant has provided no evidence to support a claim that he was not capable of understanding and appreciating the termination agreement and release. He has made no claim that he was under economic or psychological duress at the time he executed those documents and he failed to establish that the respondent made representations to the applicant that were intended to deceive the applicant into signing the release.

33I find that the Application is an abuse of the Tribunal’s process.

34Having determined that the Application is an abuse of the Tribunal’s process, it is not necessary for the Tribunal to determine the issue of whether it has jurisdiction to hear the Application that the respondent says was filed more than one year after the date of the last alleged incident of discrimination.

35The Application is dismissed.