Bryczkowski v. Sim & McBurney - Sim Lowman Ashton & McKay LLP, 2016 HRTO 339

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Laura Bryczkowski

Applicant

-and-

Sim & McBurney - Sim Lowman Ashton & McKay LLP

Respondent

DECISION

Adjudicator: Dawn J. Kershaw

Date: March 16, 2016

Citation: 2016 HRTO 339

Indexed as: Bryczkowski v. Sim & McBurney - Sim Lowman Ashton & McKay LLP

APPEARANCES

Laura Bryczkowski, Applicant

Self-represented

Sim & McBurney - Slim Lowman Ashton & McKay LLP, Respondent

Tom Stefanik, Counsel

Introduction

1This Decision explains why the Human Rights Tribunal of Ontario (“Tribunal”) is dismissing this Application, which 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”).

2By way of background, the applicant is a former employee of the respondent. The applicant commenced a prior Application, 2014-18705-I (“prior Application”), against the respondent, which the parties settled at a mediation/adjudication on August 31, 2015. In exchange for the applicant signing Minutes of Settlement, which included a full and final release (“release”), the respondent paid the applicant a significant sum of money. The parties also signed a Form 25 Confirmation of Settlement (“Form 25”), which was filed with the Tribunal.

3On September 11, 2015, 11 days after the parties signed the Minutes of Settlement, the applicant wrote to the Tribunal and asked to revoke the Minutes of Settlement and the Form 25. She alleges that the mediator/adjudicator used undue influence during the mediation/adjudication, and that she signed the Minutes of Settlement under duress. The applicant asserted, and the respondent agreed, that the Tribunal wrote to the applicant on September 18, 2015 and advised her it would not grant her request, although this document was not found in the Tribunal’s case management system.

4On September 19, 2015, the applicant filed a Form 20 Request for Reconsideration of the Minutes of Settlement. On September 22, 2015, the Tribunal advised the applicant by e-mail it could not reconsider a file that was closed through settlement because there was no decision. On the same day, the applicant e-mailed the Tribunal and asked it to make a formal decision to this effect rather than sending her an e-mail because she then could request a judicial review.

5On September 24, 2015, the Tribunal responded again that because the file was closed by settlement it would not issue a decision. The Tribunal further advised that the applicant may be entitled to bring a new Application based on the original allegations and seek to set aside the previous settlement on the basis of duress, but the Tribunal could not comment on the merits of such an Application.

6On September 29, 2015, the applicant filed another Form 20 Request for Reconsideration, renewing her request for a reconsideration of the August 31, 2015 Minutes of Settlement. The applicant asserted that the Tribunal advised the applicant on September 30, 2015 that it would not be addressing her Form 20 Request for Reconsideration, although again this document could not be found in the Tribunal’s case management system.

7The applicant filed this Application on October 5, 2015, and includes the identical allegations as in the prior Application, as well as the same allegations about the conduct of the mediator/adjudicator as in her Form 20 Requests for Reconsideration. She requests that the Minutes of Settlement be set aside.

8On December 16, 2015, the Tribunal advised the applicant by letter that a preliminary hearing would be held because it appeared she signed a full and final release with respect to the same subject matter of the Application, and to proceed with hearing the Application may amount to an abuse of the Tribunal’s process.

9The preliminary hearing took place by teleconference call. The applicant and the respondent made submissions.

preliminary issue

10At the outset of the hearing, the applicant objected to a telephone hearing instead of an in-person hearing. I asked her what the difference would be for her having her hearing in person instead of on the telephone. She stated she was intimidated, was uncomfortable with there being no recording of the hearing, and advised it was the first time she had used this technology. I asked if she was experiencing difficulty using the telephone, and she advised she was not but was not comfortable with the fact that the hearing was on the telephone. I advised the applicant most preliminary hearings were conducted by telephone and it makes it easier for people to attend, and that the Tribunal generally does not record its hearings. The applicant did not ask for accommodation under the Code and did not allege she required any. Her discomfort stemmed from the technology and the fact that there was no recording.

11The respondent submitted that the Tribunal regularly conducts hearings by telephone and that the applicant acknowledged she was not uncomfortable using the telephone and asked that the hearing proceed. I advised that the hearing would proceed on the telephone. The applicant provided very thorough submissions and did not appear to have any difficulties doing so.

submissions

12The applicant submits she signed the Minutes of Settlement under duress. She alleges the Vice-chair of the Tribunal who acted as a mediator (and then would have become the adjudicator on her case if it did not settle), abused his authority and the power he had over her case. She alleges he threatened her by telling her that if the matter proceeded to a hearing that she might walk out of the Tribunal hearing with nothing or no award of compensation; that she would lose her case; and that it might not qualify as a Human Rights case because she would have to prove to him that she had a disability. She asserts he told her she would have to submit case law to prove that she had a disability, and she was not prepared for that. She asserts that in her view the mediator lied to her about having to prove she had a disability because in her view if there had been any doubt about this, it would have been the subject of a preliminary hearing, which it was not.

13She alleges the Vice-chair played on the fact that she would have to prove she had a disability and kept threatening her. I asked her to explain what she meant by “threatening”. She reiterates that the Vice-chair threatened that if she did not sign the Minutes of Settlement, she might walk out of the hearing with nothing, which made her afraid because she was still unemployed and living on a retirement pension. She states she was drowning [financially] and was in a very difficult position.

14The applicant further submits she is afraid of people in power because she is a victim of a Communist regime, which makes her afraid of what people could do to her if she does not play along.

15She further asserts the Vice-chair was unethical because he refused to go and try and get a better deal from the respondent because in his opinion the offer was great. In her view, he should have gone back and forth with offers, and the fact he did not do so indicates he was not unbiased and did not act fairly.

16The applicant further alleges that if she had known what would happen in the mediation she would not have agreed to it. She alleges the Vice-chair brainwashed her to get what he wanted by playing on all her emotions. She asserts he spent 1½ hours with her, during which she kept rejecting the offer and he kept insisting she accept it. She also asserts he told her she should hurry because he wanted to have his lunch. She asserts that his approach went beyond persuasion and constituted duress.

17I asked the applicant to explain how the pressure put on her was illegitimate and she states it was accepted that the Vice-chair was in a superior position to her and was in a position of power. Because he also was working as an adjudicator, he used that power and authority over her. The extent of the pressure he used was illegal, and he lied to her as set out above.

18She then alleges that when the Vice-chair came back to her with the Minutes of Settlement he was no longer threatening her, but exposed her to his constant talk. She alleges she was so overwhelmed and brainwashed that she could not detach from the Vice-chair’s influence and make her own decision. She alleges the Vice-chair did not treat her with dignity and stripped her of feeling.

19I asked the applicant to explain why she did not end the mediation without signing the Minutes of Settlement. She states it was because the Vice-chair brainwashed her. He was upset with her and would have been even more upset with her if the hearing had begun, and she felt she would lose the case.

20The respondent takes the position that the parties signed a Mediation/Adjudication agreement in which they agreed the Vice-chair could use mediation to try and resolve the dispute. It submits the applicant chose not to have legal representation and now cannot say she misunderstood the process and the law.

21The respondent asserts the parties engaged in mediation/adjudication and signed Minutes of Settlement at about 2 p.m., which included a release signed by the applicant.

22The respondent points out that when the applicant wrote to the Tribunal 11 days after the Minutes of Settlement were signed advising she wished to repudiate the settlement, the Tribunal advised that the parties had agreed to mediation/adjudication, and that there was a binding settlement as a result of the signed Minutes of Settlement. In the respondent’s view, this Application is an end run around that decision, because this Application is simply a re-filing of the original Application, which in any event is untimely.

23With respect to the applicant’s allegations of duress and unfairness, the respondent submits that the applicant makes serious allegations against the Vice-chair, including that he lied and was unethical, but that even if I accept her assertions, they do not come close to establishing duress. Even if it is true that the Vice-chair told the applicant she might lose her case or that she would have to prove she had a disability or get nothing, essentially she asserts that the Vice-chair told her there was no guarantee she would come out of a hearing with a remedy or compensation, which is reasonable for a Vice-chair to say in a mediation.

24The respondent disagrees with the applicant’s position that if there was an issue of whether or not she had a disability it would have constituted an issue to be determined at a preliminary hearing. He points out that a respondent can raise that issue at a hearing, and it is a fact that the applicant would have to prove at a hearing that she had a disability, and that it was a factor in her termination. Also it is a fact that if those issues went in favour of the respondent, they would be reasons the applicant may not get any compensation.

25The respondent asserts that the applicant saw the risk on the day of the hearing and accepted the settlement but then tried to renege. The respondent points out that the amount the respondent paid the applicant was substantial, and there is no guarantee she would have received this amount if she had won at a hearing.

26The respondent submits that the applicant has not proved duress, even if all her assertions are true. It points out that the case of Solcan v. Kitchener (City), 2011 HRTO 2205 (“Solcan”), states that in order to meet the definition of duress, there must be a threat of harm (paras. 28 & 29), and that a statement that the applicant may not get any money if she went to a hearing is not sufficient to meet the definition. There is nothing objective that comes close to the threat of harm.

27The respondent also submits that economic pressure is not sufficient to constitute duress (see: Solcan, above, at para. 31). The respondent further submits that it appears the applicant did not understand the process because she thought the Vice-chair would help her, which is not his role. The fact she was incorrect about this is not something she can rely on the renege on the settlement.

28In response, the applicant states she does understand the process and knows that if the mediation/adjudication failed, the hearing would go ahead and she could get less or more than the settlement amount. She points out she worked in a legal environment for a long time, and she understands the outcome of the hearing could go either way. However, she reiterates her view that the Vice-chair threatened her. She submits it is not what he said so much as the tone of voice he used. She states she is not saying he could not say what he did, and that in fact what he said was true, but his tone of voice was not persuasive but threatening, and that it was to make her sign against her will.

29Finally, the applicant asserts that she was unrepresented, does not understand how it is possible that in a democratic country like Canada a Vice-chair can be in a room alone with an applicant with no clerk there, and that her allegations should be given the benefit of the doubt for this reason.

analysis and decision

30The 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.

31In 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.

32The 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.

33With respect to the first two factors, the applicant does not argue that she did not understand the significance of the release. In addition, despite the applicant’s position that she wanted more money, the respondent paid her a significant sum. The applicant may not now be satisfied with the terms she agreed to, but she has not shown that the settlement does not amount to sufficient and fair consideration for signing the release. It is 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 (“Dickson”) at para. 33.

34With respect to the applicant’s argument of duress, 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 that the applicant was under considerable financial pressure because she was unemployed and living on a retirement pension. 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 here that the applicant was facing any pressure that went beyond what happens in most cases.

36In addition, the applicant, despite her many assertions about the Vice-chair’s conduct, has not shown that the emotional and psychological pressures on her were so great as to amount to a coercion of her will. As the Tribunal stated in King v. Ontario (Health and Long-Term Care), 2011 HRTO 2228 (“King”) at para. 21:

It is clearly not for me to determine whether the mediator’s alleged behaviour was appropriate: see Der Von Felix, [v. Super Telecommunications, 2008 HRTO 400] […]. Rather, I need to consider whether the applicant’s allegations (if accepted) amount to duress and whether the settlement agreement ought to be set aside in the circumstances.

37In this case, the applicant produced no evidence that would support a conclusion that she could not make choices for herself at the time she signed the Minutes of Settlement. As stated in King, above, at para. 23:

Parties do generally feel some pressures in the course of litigation, including as they engage in settlement discussions. Mediation is an exercise in encouraging parties to achieve compromise and reach settlement terms. Importantly, not all pressure applied in these circumstances is illegitimate, constitutes duress or has legal consequences. As I have explained, the legal threshold for duress is a high one.

38In the circumstances of this case, even if all the applicant’s assertions are true that the Vice-chair opined that the settlement that was offered by the respondent was a great one; that he pointed out to her the elements she would have to prove to be successful at a hearing; that he pointed out to her the potential risks of proceeding to a hearing; that he spoke to her in a certain tone of voice; and that he told her he wanted to have his lunch do not constitute pressure of a type that would amount to a coercion of her will.

39As stated in King, at para. 24:

[E]ven if the mediator badgered, rushed, or applied pressure to the applicant to enter into a settlement agreement, there is no basis to conclude that this met the high onus of duress and constituted a coercion of the applicant’s will. Indeed, nothing the applicant has alleged in this regard goes beyond what one would normally expect to occur during mediated settlement discussions

40The applicant also has not shown there was any threat to her, other than the Vice-chair’s explanations to her about the possible outcome of the hearing. It was open to the applicant to proceed to a hearing and she chose not to do so.

41It is worth noting that although the applicant alleges in her initial submissions that the Vice-chair lied to her, in her response to the respondent’s submissions she retreats from this position and states that she both understood the process, given she worked in a legal environment for a long time, and that she accepted that what the Vice-chair said about the potential of her not being successful at a hearing was true. As a result, there is no evidence of a coercion of the applicant’s will by the Vice-chair.

42There is no basis to conclude that the release was signed under duress and should therefore be set aside.

43Because the release provides for a full and final settlement of the applicant’s claims arising out of her employment with the respondent, it would be an abuse of process to allow this Application to continue in the Tribunal’s process.

order

44The Application is dismissed.