Lizzola v. Nordia Inc., 2017 HRTO 972

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Massimo Lizzola

Applicant

-and-

Nordia Inc.

Respondent

DECISION

Adjudicator: Dawn J. Kershaw

Date: July 31, 2017

Citation: 2017 HRTO 972

Indexed as: Lizzola v. Nordia Inc.

APPEARANCES

Massimo Lizzola, Applicant

Self-represented

Nordia Inc., Respondent

Carmen Francis, Counsel

Introduction

1This Decision explains why the Tribunal is dismissing this Application, which alleges discrimination with respect to employment because of race, place of origin and ethnic origin contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The applicant worked for the respondent as a Human Resources Manager. On May 10, 2016, the respondent terminated the applicant’s employment on a without cause basis.

3The respondent paid the applicant a sum of money in lieu of notice and in exchange for the applicant signing a full and final release (“release”) on May 11, 2016.

4The release states in part:

In consideration of the terms and benefits of the said severance package, I hereby grant to Nordia, its parent, associated and affiliative companies, and to their directors, officers, employees and/or agents, a full a [sic] final release and discharge with respect to any rights, claims, actions, causes of action or complaints, including a complaint under human rights and employment standard legislation […], including any claim before any court, administrative tribunal or board under any statute or otherwise whatsoever, with the exception of any rights and/or benefits related to or maintained under my severance package as described in the document attached hereto.

5The applicant filed this Application on October 11, 2016. The respondent has not filed a full Response. It requests dismissal of the Application on the ground that the Application is barred by the fact that the applicant signed a release.

6The Tribunal held a preliminary hearing by teleconference on July 27, 2017, to determine whether the Application can proceed.

applicant’s position

7The applicant argues he signed the release believing he could bring an Application in relation to his disability allegations surrounding his termination. He submitted he signed the release because of the financial situation he found himself in due to his termination.

8The applicant explained that the respondent gave him a termination letter at a meeting on May 10, 2016. His entitlements under the Employment Standards Act, 2000, S.O. 2000, c. 41 (ESA), were described to him. The respondent also explained it was offering him significantly more than the ESA. The applicant was given several days to make a decision. However, he signed the release and termination letter the next day. He admitted the terms of his severance package were amended at his request to pay him a salary continuation, rather than a lump sum of the same amount.

9The respondent argues the release is plainly worded and the applicant at no time told the respondent he did not understand the release. He did not ask for more time to consider the release, and in fact signed it the next day despite having a week to consider it. In addition, the release contained an acknowledgment that the applicant had been given an opportunity to get independent legal advice.

10While the applicant has a disability, he did not allege that his disability interfered with his ability to understand the release, and in fact argues that he was capable of carrying out his job duties right up the day he was terminated. The respondent pointed out that the applicant worked as a Human Resources manager and therefore is not unsophisticated.

11The respondent argues the release covers the same issues as the Application, namely the applicant’s termination.

12The respondent argues the applicant provides no particulars of any duress under which he signed the release, other than the normal economic pressure of losing his employment.

13The respondent further argues the applicant should be held to his release for policy reasons. The respondent submits that when parties enter into an agreement and one party receives valid consideration in exchange for signing a release, the release should be upheld in the absence of any compelling reasons to set it aside. The applicant has provided no compelling reason to set the release aside. The respondent argues it would be an abuse of process to allow this Application to proceed.

analysis

14The 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.

15In 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.

16The 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.

17I am satisfied that the applicant understood the significance of the release. The applicant was a Human Resources Manager in the respondent company. In addition, he had an opportunity to obtain legal advice, which he acknowledged in the release. In addition, even in the absence of legal advice, the key paragraph in the release that bars the applicant from bringing any claims under human rights legislation is in sufficiently plain language that one does not need to be a lawyer to understand it.

18The consideration the applicant received was in excess of his entitlements under the ESA, and included a period of post-termination coverage of benefits as well as 4 months of salary continuation. The applicant also received money to work with a career transition firm. The applicant has not shown that the package does not amount to sufficient and fair consideration for signing the release.

19The applicant appears to be arguing he signed the release under 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.

20I accept that the applicant anticipated financial pressure as a result of losing his job. 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. The applicant has not shown that the emotional and psychological pressures on him were so great as to amount to a coercion of his will. He has not produced any evidence that would support a conclusion that he could not make choices for himself at the time he signed. In addition, the applicant was given a week to consider the release the respondent gave him on May 10, 2016; he apparently asked for an amendment to how the payment would be made to him; he signed it on May 11, 2016 and did not ask for any explanations or further time to consider it. There is no basis to conclude that the release was signed under duress and should therefore be set aside.

21Because the release provides for a full and final settlement of any claims, including any claims under human rights legislation, 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

22The Application is dismissed.