HUMAN RIGHTS TRIBUNAL OF ONTARIO
______________________________________________________________________
B E T W E E N:
Denise Lalonde
Applicant
-and-
The Manufacturers Life Insurance Company
Respondent
______________________________________________________________________
DECISION
______________________________________________________________________
Adjudicator: Sophie Martel
Indexed as: Lalonde v. The Manufacturers Life Insurance Company
______________________________________________________________________
APPEARANCES
Denise Lalonde, Applicant
Self-represented
The Manufacturers Life Insurance Company, Respondent
Karl Scholz, 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"). The applicant alleges that the respondent harassed her and terminated her employment because of disability.
2In its Response, the respondent requested that the Tribunal dismiss the Application due to a full and final release signed by the applicant following her termination.
3Pursuant to a Case Assessment Direction dated July 27, 2017, the Tribunal directed that a preliminary hearing be held on whether the Application should be dismissed as an abuse of process on the basis that the applicant signed a release with respect to the subject matter of the application.
4The Tribunal held a preliminary hearing by teleconference on November 6, 2017. For reasons that follow, I find that the Application should be dismissed.
BACKGROUND
5The applicant began her employment as a customer service professional with the respondent in September 2014. She alleges that she was harassed as a result of a disability during the course of her employment. While she was placed on performance review from February to October 2016, she was no longer under performance review when she was advised on November 22, 2016 that her employment was terminated.
6The termination letter indicates that the applicant would receive her regular salary up to and including November 22, 2016 and a statutory payment in lieu of notice from November 22 to December 6, 2016. She would also receive payment for vacation earned but unused as of December 6, 2016. She was provided with complimentary career transition series and could continue to use the employer's confidential Employee and Family Assistance Program until the earlier of the date she started new employment and February 21, 2017. In addition, the applicant was provided with a choice of two options. She could continue to receive semi-monthly payments of base salary from December 7, 2016 to February 21, 2017. If she started new employment, the semi-monthly payments would stop and she would receive a final lump sum payment equal to 50% of the balance of remaining semi-monthly payments. This option would result in the applicant receiving up to a maximum of 13 weeks of salary inclusive of statutory pay in lieu of notice. Alternatively, the applicant could choose a lump sum payment equal to the equivalent of 10.4 weeks of salary, inclusive of statutory pay in lieu of notice. Both severance packages included benefit coverage until February 21, 2017, with the exception of short and long term disability coverage, which ended December 6, 2016. Both severance options (salary continuation or a lump sum) were offered under condition that the applicant sign a full and final release.
7The applicant chose the salary continuation option and signed the full and final release document on December 12, 2016. The document releases the respondent from all actions and claims arising out of her employment with and termination from the Company including "any claims under the applicable employment standards, health and safety, human rights and/or pension standards legislation". When the applicant signed the release, she had already initiated her Application, which was received at the Tribunal on November 30, 2016. She did not advise the respondent that she had filed an application under the Code when she gave them the signed release.
PARTIES' POSITIONS
8The applicant indicated that she was completely surprised by the November 22, 2016 termination. She submits that she signed the release under financial duress. She signed the release at the last possible moment in order to make the December 31st pay cut-off date. If she had not submitted the release on December 12, 2016, she would not have received any money for December 2016. She was then experiencing financial pressure to meet her rent payment. She was also taking four different medications for her mental illness and needed the money and the benefit coverage. While she had filed her Application on November 30, 2016, she had not received a response from the Tribunal by December 12, 2016 and felt that she had no choice but to sign the release in order to receive some money at the end of December 2016. She does not recall reading the portion of the release that releases any human rights claims and submits that this may in part have been due to her mental disability.
9The respondent submits that the applicant received fair and reasonable compensation in return for the release. In addition to benefit coverage, career transition services and access to the Employee and Family Assistance Program, she received 13 weeks of severance in respect of just over a two-year employment period. The 13-week severance was in excess of employment standards legislation and common law entitlement. The applicant was also given time to consider the severance offer and to seek independent legal advice. The respondent submits that it provided fair and reasonable consideration in return for the release and that it should be allowed to rely on the finality of the release.
ANALYSIS
10The 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. The Tribunal may determine, however, that allowing an application to proceed in such circumstances amounts to an abuse of process.
11The applicant argues in this case that she was under financial duress and that as a result of her mental disability she may not have fully read and understood the release.
12Regarding the applicant's argument of duress, the 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.
13I accept that following her termination, the applicant experienced significant financial pressures. Economic pressure alone, however, is not sufficient to establish duress. As stated in Kailani v. Securitas Canada, 2009 HRTO 1183, at paragraph 35:
...Each case must be considered on its own merits and economic duress is a factor that may be considered. However, it seems apparent that the test for economic duress is high. Most people who have had their employment terminated are faced with economic difficulty. Financial difficulty alone cannot therefore be sufficient. If it were, almost every settlement arising out of the termination of employment could be violated.
14The applicant was faced with the same economic pressures that are faced by others whose employment is unexpectedly terminated. There is no indication that the applicant was facing any pressure that went beyond what happens in most cases.
15The applicant also relies on her mental state, stating that the termination was unexpected and particularly difficult for her noting her mental health history.
16I accept that the applicant was very upset when she was terminated. I also note, however, that she was not required to sign the release at the time of the termination meeting in order to access the severance package. While the termination letter indicates that a full and final release was required prior to December 6, 2016, the applicant waited until December 12, 2016 to sign the release and received the severance package despite the lateness of the signed release. She had three weeks to ponder whether to accept the package or not. She admitted that, while she did not seek independent legal advice prior to December 12, 2016, she contacted the respondent's human resources department, the Employment Standards office and the Human Rights Legal Support Centre after her termination and prior to signing the release. She also had access to her treating psychiatrist. She therefore had time to seek information and advice from various sources. Having been sufficiently well to file an application under the Code during this time, I cannot accept that the applicant's mental disability prevented her from understanding the termination letter, the release and the various options that were presented to her. While the applicant may not have read the release as carefully as she should have, the key paragraph at the beginning of the release is written in sufficiently plain language that I am satisfied one does not need to be a lawyer to understand it.
17As submitted by the respondent, the applicant also received consideration in return for signing the release. She received severance in excess of her entitlements under the Employment Standards Act, 2000, S.O. 2000, c. 41. She also received a period of post-termination coverage of benefits and job search support.
18The applicant has not shown that the financial, emotional and psychological pressures on her were so great as to amount to a coercion of her will. There is therefore no basis to conclude that the release was signed under duress. As the release provides for a full and final settlement of any claims arising out of the applicant's employment with the respondent, including human rights claims, it would be an abuse of process to allow this Application to continue in the Tribunal's process.
ORDER
19This Application is dismissed.
Dated at Toronto, this 29th day of November, 2017.
"Signed by"
__________________________________
Sophie Martel
Vice-chair