Alison Russell v. Dr. Chettimada Medicine Professional Corporation, 2017 HRTO 1169

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Alison Russell

Applicant

-and-

Dr. Chettimada Medicine Professional Corporation

Respondent

DECISION

Adjudicator: Eban Bayefsky

Date: September 8, 2017

Citation: 2017 HRTO 1169

Indexed as: Russell v. Dr. Chettimada Medicine Professional Corporation

APPEARANCES

Alison Russell, Applicant

Self-represented

Dr. Chettimada Medicine Professional Corporation, Respondent

Theodore Chris, Counsel

INTRODUCTION

1The applicant filed an Application alleging that the respondent discriminated against her in employment on the basis 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 on the basis that the applicant had signed a full and final release regarding the same issues, and that to allow the Application to proceed would be an abuse of process.

3The Tribunal scheduled a preliminary hearing by teleconference to address the matter. The preliminary hearing was held on August 31, 2017.

4For the following reasons, I find that the Application is barred by virtue of the release signed by the applicant.

THE PARTIES' POSITIONS

5The respondent maintains that, as a result of an inability to guarantee the applicant the hours of work she wanted, the applicant's performance problems, and her own stated desire to be let go, the parties entered into a settlement by which the applicant's employment would be terminated in exchange for a monetary payment (the "Settlement"). The settlement required the applicant to execute a Full and Final Release, discharging the respondent from any actions arising from her employment or the termination thereof (the "Release").

6The respondent maintains that the Release precludes the applicant from proceeding with her claim of discrimination before the Tribunal.

7The applicant does not dispute that she signed the Release. Nor does she dispute that it purports to preclude any actions against the respondent, including her Application to the Tribunal.

8However, the applicant maintains that she signed the Release "uninformed and under duress." In her written response to the request for dismissal, the applicant stated as follows:

[The Release] was not emailed to me with the rest of the severance package, it was given to me last minute, after I had signed everything else. Form was not read, not witnessed, and not explained to me, due to sheer ignorance of procedure, and the need to get a fussy baby home for her nap. At no time was I given a chance to bring the release form to someone who understood what I was signing. I had 2 minutes to make the decision as [the respondent's owner, Dr. Anil Chettimada] was seeing me in-between patients. I was told in exact words by Anil himself that 'everything is done right.' Form isn't even dated for the date I signed it. I was confused and in a hurry as my infant was due for her nap....I was unfamiliar with the process and unaware what I was signing….Worried for incoming income, and upcoming car payment I signed the form….They preyed on my ignorance….

…I was given no time to review [the Release] prior to signing….I was handed a form with the words 'one more.' I was given no opportunity to read it as Anil[']s arm was in the way pointing to where I sign. I thought I was signing another copy [of the settlement].

9The applicant reiterated these claims at the preliminary hearing, adding that Dr. Chettimada "took advantage of [her] frail state of mind" and her "frail situation" and that Dr. Chettimada was a "bully" and she did "whatever he told me to do, so I signed [the Release]."

10The respondent denied these allegations, noting, in part, that the Release signed by the applicant states clearly as follows:

I acknowledge that I have carefully considered the terms of this full and final release and confirm that I was given an opportunity to seek independent professional advice about the settlement and accept the terms voluntarily for the purpose of making a final settlement of the claims described above.

DECISION

11The Code does not explicitly bar applications where an applicant has executed a release in favour of a respondent. See, for example, Bielman v. Casino Niagara, 2009 HRTO 123. However, the Tribunal may, in accordance with its Rules of Procedure, determine that allowing an application to proceed in such circumstances amounts to an abuse of process.

12In Better Beef Ltd. v. MacLean, 2006 CanLII 17930 (ON SCDC), 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.

13The 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.

14The applicant does not assert that she misunderstood the significance of the Release, nor as indicated earlier, does she dispute that, on its face, the Release precludes her Application before the Tribunal. What she does claim is that the respondent failed to properly advise her regarding what she was signing and that, in part due to her personal circumstances; the respondent bullied her into signing the Release. In my view, this goes to the applicant's claim of duress, not to whether she understood the nature and importance of the Release.

15The parties entered into the Settlement in the context of a claim the applicant had made under the Employment Standards Act, 2000, and it appears to grant the applicant what she would otherwise be entitled to under that statute, as well as additional consideration in respect of a private loan the respondent had previously made to her. The applicant, therefore, appears to have received sufficient and fair consideration for signing the Release. In any event, the Tribunal's role is not to assess the appropriateness of a settlement. See, for example, Dickson v. General Motors of Canada Limited, 2013 HRTO 1347 ("Dickson") and O'Regan v. Firestone Textiles, 2010 HRTO 502. I am, therefore, not prepared to set aside the Release on this basis.

16Regarding the last two factors in Pritchard (which can both be subsumed under the applicant's claim 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:

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.

17I accept that the applicant was under financial pressure because she was in the process of losing her job, and apparently had to make upcoming car payments. However, it is not uncommon for employees to face some form of financial pressure as a result of losing their employment. Even accepting the applicant's allegations as to the circumstances under which she signed the Release (which, in large part, centre on her alleged confusion about the process and her need to care for her child), I do not find that they amounted to coercion of her will, or that she was subjected to undue or illegitimate pressure.

18Although the decision of King v. Ontario (Health and Long-Term Care), 2011 HRTO 2228 refers to settlements at the Tribunal, the reasoning applies equally to other settlements. The Tribunal stated as follows:

Parties do generally feel some pressures in the course of litigation, including as they engage in settlement discussions. […] [T]he legal threshold for duress is a high one.

19Again, even accepting the applicant's version of events, I see no basis for concluding that the applicant was not capable of reading, understanding and freely consenting to the Release, and of seeking advice if she felt that she had not been given an opportunity to do so. I see no basis for finding that the respondent pressured or otherwise coerced the applicant into signing the Release. I find that the applicant has not met the high threshold of duress.

20In the circumstances, I am not prepared to set aside the Release signed by the applicant. Because the Release provides for a full and final settlement of any and all claims arising out of the applicant's employment with the respondent, it would be an abuse of process to allow this Application to continue in the Tribunal's process.

Order

21The Application is dismissed.