Norma Brown v. David Han Holdings Ltd., 2017 HRTO 930

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Norma Brown

Applicant

-and-

David Han Holdings Ltd.

Respondent

DECISION

Adjudicator: Keith Brennenstuhl

Date: July 24, 2017

Citation: 2017 HRTO 930

Indexed as: Brown v. David Han Holdings Ltd.

APPEARANCES

Norma Brown, Applicant

Debra Knoke Alves, Counsel

David Hans Holdings Ltd., Respondent

Phi Nguyen, Counsel

1This Application alleges discrimination with respect to employment because of race, colour, ethnic origin disability, sex and reprisal contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2This Decision deals with a preliminary request to dismiss the Application on the basis that it is an abuse of process. The respondent relies on a Memorandum of Understanding (“Memorandum”) containing a release in favour of the respondent and signed by the applicant.

3A hearing to deal with the respondent’s preliminary request was held on July 5, 2017 in Toronto.

4The applicant was an employee of the respondent for over eight years. On November 30, 2015 her employment came to an end. It is unclear whether she quit or she was terminated by the respondent.

5The Memorandum was finalized on January 21, 2016. The Memorandum states that the applicant agreed to accept payment of $2,000.00 by the respondent “in lieu of any and all future related claims by her”. The Memorandum was drafted by the applicant who was assisted by her friend who apparently is an ex-police officer.

6The applicant takes the position that the release should be set aside as void because the amount paid by the respondent to the applicant, namely $2,000.00, failed to meet the statutory requirements of the Employment Standards Act, 2000 (“ESA”) and in accordance with the ESA an employee or an employer cannot contract out of an employment standard. Section 5(1) of the ESA reads:

Subject to subsection (2), no employer or agent of an employer and no employee or agent of an employee shall contract out of or waive an employment standard and any such contracting out or waiver is void.

7On this point, the respondent argues that the issue as to whether the applicant was terminated by the respondent or quit is still a live issue and in that regard no determination has been made under the ESA. If it had been determined that the applicant quit her position she would be not be entitled to any severance under the ESA and the Memorandum would be valid.

8In my view, the Memorandum clearly states that the applicant agreed to accept payment of $2,000.00 by the Respondent “in lieu of any and all future related claims”. I find that this release is neither vague nor ambiguous, and is broadly worded to capture any and all future claims relating to the Applicant’s employment with the respondent including a claim or application under the Code.

9Even if one were to determine that there is some ambiguity or vagueness in the release, the doctrine of contra preferentum dictates that it ought to be interpreted in favour of the party who did not draft it. In this case, it was the applicant and her friend who drafted the Memorandum.

10However, that does not necessarily end the inquiry. As has been noted in other cases the Code does not expressly bar an Application because a release has been executed, but the Tribunal has authority to prevent an abuse of process: see section 23(1) of the Statutory Powers Procedures Act, R.S.O. 1990, c. S.22, as amended. In Bielman v. Casino Niagara, 2009 HRTO 123, it was held:

The Code does not explicitly bar applications such as this where a release has been signed by the applicant. In each case where a respondent requests early dismissal of an application, the Tribunal must decide whether, in the circumstances, it would constitute an abuse of the Tribunal’s process to allow the application to proceed to a hearing on the merits. An important consideration in that analysis is the respondent’s reasonable expectation that a release of this kind will bring finality to any employment related dispute they may have with a former employee.

11I find that this Application amounts to an abuse of process. In looking at the plain language of the release together with the surrounding provisions in the Memorandum, it is clear that the parties intended to settle all matters relating to the applicant’s employment with the respondent.

12In Pritchard v. Ontario (Human Rights Comm.), 1999 CanLII 15058 (ON SCDC), 1999 CanLII 15058 (ONSC), the Court set out the factors for determining whether a release should be set aside. Pritchard was decided under section 34 of the old Code which invoked bad faith rather than abuse of process, and concerned access to the since-repealed investigative procedure of the Ontario Human Rights Commission rather than the right to an oral hearing before the Tribunal. However, the Tribunal has found that the Pritchard factors can be useful in determining whether it would be an abuse of process to proceed with a hearing on the merits: Douse v. Hallmark Canada, 2009 HRTO 1254. The Pritchard factors look to (1) whether the party fully understood the significance of the release; (2) whether she 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.

13The applicant did not articulate any compelling reasons why the release should not be binding on her. I find that she understood the consequences of what she was signing. I also find that there was good and sufficient consideration for the release. She had the benefit of a third party’s advice and she drafted the release including the amount of consideration. It is not within the Tribunal’s jurisdiction to determine whether the applicant was fired from her position or whether she quit within the meaning of the ESA or what employment standard she was entitled to under the ESA.

14I appreciate that having just lost her employment that the applicant would have been under considerable economic pressure. However, this is the case in many if not all employment cases. If any settlement freely arrived at can be avoided merely by asserting economic pressures, the incentive for the parties to resolve their disputes without a hearing will be gone and every such claim will have to be fully adjudicated.

15There was no evidence to indicate that the applicant was under psychological or emotional pressure amounting to duress. On the contrary the evidence shows that the release was prepared by the applicant and her friend and that the consideration was the amount requested by the applicant. The applicant made a choice to sign the release because of her desire for the monetary consideration. Having consciously decided to draft the release and having decided on the amount of monetary consideration, the applicant is bound by her choices. The evidence does not support the conclusion that the applicant was under any threat of emotional or psychological harm, which would be required in order to set the release aside on the basis of duress.

16It is unclear as to what legal advice, if any, the applicant received from her friend. However, even if it was not correct the incorrect advice ought not to be laid at the door of the respondent, who in good faith, without the benefit of legal representation, and without any knowledge of the advice the applicant was receiving, fulfilled its end of the bargain.

17For these reasons the Application is dismissed as an abuse of process.