SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-18-00606417
DATE: 20211014
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Thomas Bayes
Plaintiff/Responding Party
– and –
Royal Bank of Canada, Michael Hubley, Brian Higgins, Mark McCarthy, Brenda Balsdon;
Defendants/Moving Parties
Natalie C. MacDonald, Chris Randall for the Plaintiff/Responding Party
Tate McLeod, Jessica Warwick for the Defendants/Moving Parties
HEARD: September 28, 2021
Sharma J.
REASONS FOR JUDGMENT
- This is a motion by the defendants for summary judgment. They seek to have the plaintiff’s action dismissed due to a contractual release the plaintiff signed when his employment with Royal Bank of Canada (“RBC”) was terminated without cause.
I. Facts
Thomas Bayes began working with RBC in 2008. He held the position of senior manager in RBC’s Corporate Investigation Services for nine years prior to being terminated.
Mr. Bayes affidavit states that in 2014 he was the whistleblower in relation to a workplace harassment complaint about an individual, Mr. Higgins. During his employment with RBC, on December 16, 2015, Mr. Bayes made a further workplace harassment complaint about Mr. Higgins to a superior at RBC, Mr. Mark McCarthy.
Approximately 16 months later, in May of 2017, Mr. Bayes was diagnosed with cancer.
On June 20, 2017, Mr. Bayes took a leave of absence. Mr. Bayes’ affidavit states that the leave was due to stress and the lack of support from senior management at RBC, and the harassment he experienced at the hands of Mr. Higgins.
Mr. Bayes was scheduled to return back to work on Monday August 14, 2017.
On Friday August 11, 2017, Mr. Bayes contacted Mr. James Dickson, Vice President of investigations, Financial Crimes, within RBC, with inquiries about staffing changes. During that call, Mr. Bayes inquired about his employment status at RBC. Mr. Dickson informed Mr. Bayes that his employment would be terminated on Monday.
On August 14, 2017, Mr. Dickson met with Mr. Bayes to formally terminate his employment. Mr. Bayes was provided with a letter of termination which asked him to select one of two compensation options: (1) an income protection option that would have seen the continuation of his pay and benefits for 52 weeks; or (2) an immediate lump sum retirement payment, equal to 75% of his salary and short-term incentive payments.
Relevant portions of the termination letter and attached appendices provide that:
a. If Mr. Bayes selected the income protection option, he was required to be actively engaged in searching for other work. If during the 52-week income protection period, he ceased being engaged in a job search, his income protection may be terminated.
b. Mr. Bayes was to select one of the two compensation options by August 23, 2017. If he failed to select an option by that date, he would be placed on income protection.
c. If Mr. Bayes chose the lump sum retirement payment, he was asked to sign a Full and Final Release (the “Release”).
d. A direction to contact an individual in RBC, Mr. Pentke, if Mr. Bayes had any questions related to the options.
e. RBC “strongly encourage(s) you to seek independent professional advice regarding the information contained in this package, including confirmation of the financial and tax implications.”
f. The Release required Mr. Bayes to confirm that he “had an opportunity to obtain independent legal advice”.
- On August 17, 2017, Mr. Bayes wrote to Mr. Pentke by email. He said:
Daniel, I have taken legal advice on the packages offered and would like a couple of points clarified and or changed.
With regards to the income protection plan.
Immediately prior to my employment termination date I was off sick with with (sic) documented work related stress and am not ready to even think about finding alternative employment.
ER agent Bob Lynn is aware of the circumstances.
With regards to the Employee Declaration 1. Actively Searching for Work
Paragraph 1 – I would like this paragraph removed, as for medical reasons I cannot fulfill the current criteria, which requires me to be currently available for employment or actively searching for another job.
For medical privacy reasons I do not want to disclose outside of Employee Relations to HRSC my personal health history
I am happy to sign on a monthly basis the remaining declarations.
While Mr. Bayes indicated in this email that he had obtained legal advice, he clarified during his cross-examination that he did not consult a lawyer. He spoke with someone from his golf club in a social setting who mediated labour disputes, but that person was not a lawyer and Mr. Bayes did not seek legal advice from him or a lawyer. Mr. Bayes acknowledged that, from this email, it was fair for RBC to assume that Mr. Bayes did receive legal advice.
Mr. Pentke was away, so Mr. Bayes contacted Ms. Laura McLennan, a senior manager of employee relations at RBC, for assistance.
On August 17, 2017 Ms. McLennan spoke with Mr. Bayes by phone. In an email she sent to Mr. Pentke on August 18, 2017, she confirmed the advice she provided to Mr. Bayes over the phone the day prior. Namely, if Mr. Bayes was medically unable to find work, he should appeal the decision of the disability insurer. If he is approved for disability coverage, his income protection would be “paused” and would resume when he is well enough to search for work.
On August 18, 2017, Mr. Bayes emailed Ms. McLennan with a further question. He advised that he received a call from his doctor and learned that he had arthritis in his lower back and finds it difficult to sit. His doctor also provided him a date of August 31, 2017 to see a specialist as he may have prostate cancer. As a result, he was not sure if he was well enough to start working. He asked what options he might have, and whether he could delay his retirement decision and just receive income support until “the matter is clarified.”
On August 18, 2017, Ms. McLennan responded. She said she was sorry to hear of his health concerns, advised she would get back to him on his request for an extension and asked how much time he sought, and gave him coordinates for the RBC employee counselling services. The same day, Mr. Bayes responded asking for an extension until September 4, 2017 because he thought he would have “a better idea” after he saw his urologist on August 31, 2017. Mr. Bayes thanked Ms. McLennan “for everything so far.”
On August 21, 2017, Ms. McLennan confirmed that Mr. Bayes may have until September 5, 2017 to select whether he opted for the 52-week income protection option or the lump-sum retirement payment. She wished him well at his medical appointments. She further indicated that if after those appointments, Mr. Bayes receives medical advice to remain off work and not search for work due to his condition, Mr. Bayes would continue to have short term disability benefits coverage if he selected the 52-week income protection option, subject to being approved by the disability insurer. In which case, his income protection payments would be paused until he is well enough to resume his job search. Mr. Bayes replied, expressing his thanks.
There is a factual dispute as to what happened on September 5, 2017.
On this day, Mr. Bayes says he contacted Ms. McLennan by phone. According to his affidavit, he advised Ms. McLennan that he had met with his urologist earlier the same day who advised that Mr. Bayes required numerous tests and treatments for his cancer, and that a follow-up appointment with his urologist was scheduled for October 11, 2017. According to Mr. Bayes, Ms. McLennan responded over the phone: “We are unable to provide a further extension to Income Support and we are not allowed to make modifications to Income Support requirements.” Mr. Bayes further states that Ms. McLennan informed him that he had to execute a Release notwithstanding his health-related predicament and significant vulnerability.
Ms. McLennan’s evidence is that she does not recall this telephone call from Mr. Bayes and that she has no record of it, or of him asking for a second extension until October 11, 2017. However, if Mr. Bayes had requested a further extension, she does not dispute that RBC did not grant it to him since he had already been granted a 13-day extension and Mr. Bayes had a total of 22 days to consider his decision. She further states that she would not have used the words Mr. Bayes attributed to her, and she would have repeated her previous advice to him, which is that income protection may be paused if he is unable to search for alternative work.
During her cross-examination, Ms. McLennan stated that she would routinely provide employees who had reasonable explanations an extension of one week, and potentially two weeks. She further stated that the five-week extension, alleged to have been requested by Mr. Bayes on September 5, 2017 until October 11, 2017, would have been outside the scope of the regular extensions RBC was providing at that time. With longer extension requests, she would need to consult others at RBC who administer the income protection program and pension program, as well as her director for input.
On September 5, 2017 at 2:12 pm, in an email to Ms. McLennan, Mr. Bayes attached a copy of his completed election form in which he selected the lump sum retirement payment, along with an executed Release. The covering email simply stated: “Please see attached Employee Election and Full and final Release”.
In October of 2018, thirteen months after he signed the Release, he commenced this action against RBC and individual defendants who worked at RBC and to whom Mr. Bayes reported. In his Statement of Claim, Mr. Bayes seeks declarations that RBC failed to protect him from bullying and harassment and that it breached its duty of good faith. He seeks general damages, damages for the torts of harassment and negligence, moral damages for the manner of dismissal, and punitive damages. Each of the claims relate to his prior employment at RBC, including moral damages for the alleged bad faith manner of his dismissal.
II. Parties’ Positions
The defendants argue summary judgment is appropriate because of the broadly worded Release. It releases and forever discharges RBC and its employees from all claims which Mr. Bayes has or had relating to his employment with RBC or his termination. In the Release, Mr. Bayes acknowledged that he had the opportunity to obtain legal advice and that he fully understood the effect of the Release.
Mr. Bayes argues the Release is not enforceable because: (1) it was unconscionable given the inequality of bargaining power between him and RBC and because the Release resulted in an improvident transaction; and (2) the execution of the release was made while Mr. Bayes was under duress.
III. Analysis
Summary Judgment
On a summary judgment motion, the moving party has the onus of establishing there is no genuine issue requiring a trial: Rule 20, Rules of Civil Procedure.
A motion judge must first determine if there is a genuine issue requiring a trial based only on the evidence before the Court, without using the fact finding powers in rule 20.04(2.1) and (2.2). If the Court is satisfied the evidence exists to fairly and justly determine there is no genuine issue requiring a trial, summary judgment may issue. However, if there appears to be a genuine issue requiring a trial, the judge may then determine if the need for a trial can be avoided by using the fact finding powers in rule 20.04(2.1) and (2.2): Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at para. 66.
Parties are required to put their best foot forward on a summary judgment motion. The court is entitled to assume that the record on a motion for summary judgment contains all the evidence the parties would present at trial (see Sweda Farms v. Egg Farmers of Ontario, 2014 ONSC 1200, at paras. 26- 27).
On this summary judgment motion, the issue is whether a trial is required to determine whether the Release is enforceable.
a. What is the effect of the Release, if enforceable, on the plaintiff’s action?
I am satisfied that the Release, if enforceable, would entitle the defendants to summary judgment. It is broad in scope and would release RBC and its employees from all claims set out in the plaintiff’s Statement of Claim.
Mr. Bayes received consideration for the Release, having accepted a lump-sum retirement payment of $90,604, which amount reflects approximately 75% of his annual salary of $106,100. There is no dispute that he signed it. There is also no evidence on this motion that Mr. Bayes requested or otherwise sought to reserve some authority to be able to commence an action against RBC and its employees at a later date for the causes of action set out in his Statement of Claim. Therefore, if enforceable, the Release is a complete defence to this action.
b. Does Mr. Bayes have a valid defence of duress that vitiates the Release he signed?
In Kawartha Capital Corp. v. 1723766 Ontario Limited, 2020 ONCA 763, 454 D.L.R. (4th) 553, at para. 11, the Court of Appeal laid out the test for economic duress as a two-part test. The first part is whether the party was subjected to pressure based on a consideration of four factors, and the second is a determination of whether that pressure was illegitimate.
The following factors are to be considered in determining whether a party’s will has been coerced,
a. Whether the party protested at the time the contract was entered into;
b. Whether there was an effective alternative course open to the party alleging coercion;
c. Whether the party was independently advised; and
d. After entering into the contract, whether the party took steps to avoid it: see Techform Products Ltd. v. Wolda, 2001 8604 (ON CA), 56 O.R. (3d) 1, 206 D.L.R. (4th) 171 (C.A.), at para. 32; Sheriff v. Apps et al, 2012 ONSC 565, at para. 44.
I am not satisfied that Mr. Bayes protested at the time of signing the Release. While he had some objections to the income protection option (i.e., the requirement to search for other work) and he alleges he requested a second extension to consider his options, there is no evidence that Mr. Bayes specifically objected to signing the Release or that he be relieved of the requirement to sign the Release. On a motion for summary judgment, it is incumbent on parties to adduce all evidence they would intend to adduce at trial.
The plaintiff argues, however, that on his call with Ms. McLennan on September 5, 2017, he did ask for an extension of time which was rejected. Since signing a Release was a requirement for the lump-sum payment option, Mr. Bayes argues his request for an extension of time that was allegedly rejected constitutes a protest. Of course, there is a factual dispute as to whether this call occurred. Even if it had, there is nothing in Mr. Bayes’s evidence which suggests that he objected to or protested the signing of the Release.
There were alternative courses open to Mr. Bayes. He could have:
a. Selected one of the two options, but not sign the Release.
b. Sought legal advice, commenced litigation and not sign the Release.
c. Done as Ms. McLennan suggested he do - namely select the income protection option but seek continued disability coverage and have his entitlement to income protection paused.
Mr. Bayes argues that because his disability coverage expired and he was unable to search for work, there was only one option available to him: accept the lump-sum payment and sign the Release. However, there was no evidence on this motion that he attempted to appeal the expiration of his disability benefits so that they may continue, which was a further option presented by Ms. McLennan. Nor was there evidence of him seeking legal advice, which was also suggested by RBC. While RBC was not making available to Mr. Bayes his preferred option, there were other options available to him.
In terms of seeking independent advice, RBC “strongly” encouraged Mr. Bayes to seek independent advice. Mr. Bayes did advise RBC on August 17, 2017 that he did receive legal advice, although only after he commenced his action was it discovered that it was not actually legal advice. Mr. Bayes acknowledged that it was “fair” for RBC to understand that Mr. Bayes had in fact received legal advice. While Mr. Bayes was not a lawyer, he was not an unsophisticated individual having worked in law enforcement and in the field of workplace harassment investigations.
Finally, there was no evidence that Mr. Bayes took any steps to avoid his obligations under the Release. The first step he took was to commence this action thirteen months later. After he signed the Release, there were further emails Mr. Bayes exchanged with Ms. McLennan around timelines for the lump-sum payout, in which he did not express protest. In one email he stated he was “happy to go ahead with the September 30 retirement option.” Mr. Bayes produced no other evidence to show steps he took to protest signing the Release after he signed it.
Moving on to the second prong of the test, and even if any of the above factors were present, I cannot conclude that there was an illegitimate application of coercive pressure by RBC on Mr. Bayes: see Riskie v. Sony, 2015 ONSC 5859, at para. 44. While Mr. Bayes may have been stressed and preferred other options, this is not the test to be met to sustain a defence of duress. It must be shown that there was an illegitimate application of coercive pressure by RBC, which I do not find on these facts. Mr. Bayes was not asked to sign the Release on the spot. At his request, he was granted a 13-day extension to consider his options. He had a total of 22 days to consider the options and he was strongly encouraged to seek legal advice. RBC, seeking to accommodate Mr. Bayes, presented Mr. Bayes with a further option of appealing the expiration of his disability benefits if he wished to opt for the income protection option. These factors suggest there was not an illegitimate application of coercive pressure: see Techform, at para. 38.
c. Should the Release be set aside based on the equitable doctrine of unconscionability?
In Uber Technologies Inc. v. Heller, 2020 SCC 16, 447 D.L.R. (4th) 179, the Supreme Court of Canada described the equitable doctrine of unconscionability. The Court noted that the underlying rationale of contract theory is that parties should be held to their bargains when they have freely negotiated and entered into contracts with one another. But, when one of the parties is vulnerable in the contracting process, and as a result of that vulnerability, has entered into an unfair or improvident agreement, the traditional assumptions underlying contract enforcement lose their justificatory authority. In these circumstances, the court will grant relief from contract enforcement to protect the vulnerable: see Uber, at paras. 56-60.
The equitable doctrine of unconscionability is a general power that may be applied “to fill in gaps” when other routes of intervention do not apply: see Uber, at para. 60. For this reason, I have examined the defence of duress first in my reasons.
The Court in Uber, at paras 64-65, confirmed that proving the elements of unconscionability is a two-step process:
[64] In Norberg, La Forest J. described proving the elements of unconscionability as “a two-step process”, involving “(1) proof of inequality in the positions of the parties, and (2) proof of an improvident bargain” (p. 256). The concurring judgment in Douez v. Facebook Inc., 2017 SCC 33, [2017] 1 S.C.R. 751, followed a similar approach in a case involving a standard form consumer contract[6]:
Two elements are required for the doctrine of unconscionability to apply: inequality of bargaining powers and unfairness. Prof. McCamus describes them as follows:
. . . one must establish both inequality of bargaining power in the sense that one party is incapable of adequately protecting his or her interests and undue advantage or benefit secured as a result of that inequality by the stronger party. [Emphasis deleted; para. 115.]
(See also Loychuk v. Cougar Mountain Adventures Ltd., 2012 BCCA 122, 347 D.L.R. (4th) 591, at paras. 29-31; Roy v. 1216393 Ontario Inc., 2011 BCCA 500, 345 D.L.R. (4th) 323, at para. 29; McNeill v. Vandenberg, 2010 BCCA 583, at para. 15; Kreutziger, at p. 173; Morrison, at p. 713)
[65] We see no reason to depart from the approach to unconscionability endorsed in Hunter, Norberg and in Douez. That approach requires both an inequality of bargaining power and a resulting improvident bargain.
- “An inequality of bargaining power exists when one party cannot adequately protect their interests in the contracting process”: Uber, at para 66. There are many types of inequality, such as necessity, where a weaker party is so dependent on a stronger party and has no option but to agree with whatever is presented. Another type of inequality is where there is “cognitive asymmetry” where only one party can understand and appreciate the import of the contractual terms: Uber, at paras. 69-71. While the types of inequality of bargaining power mentioned are not exhaustive, it is the latter type mentioned that is more like the facts of this case.
Inequality of Bargaining Power
- Mr. Bayes’ counsel argues that in my analysis of this case, I apply a lens set out in Wallace v. United Grain Growers Ltd., 1997 332 (SCC), [1997] 3 S.C.R. 701, 123 Man. R. (2d) 1 that considers the inherent power imbalance between an employee and employer at the time of dismissal. At para. 95 of Wallace, Justice Iacobucci wrote:
The point at which the employment relationship ruptures is the time when the employee is most vulnerable and hence, most in need of protection. In recognition of this need, the law ought to encourage conduct that minimizes the damage and dislocation (both economic and personal) that result from dismissal.
While RBC is clearly in a superior bargaining position as an employer, Mr. Bayes was not unsophisticated. In considering the relative parties’ bargaining positions, I note that Mr. Bayes held previous roles as an officer, detective, and detective sergeant at Scotland Yard for 21 years. He also spent six years as a security consultant and private investigator for law firms in Ontario, which included workplace harassment investigations. His work at Scotland Yard required him to give evidence in court often, and he also provided evidence in Ontario courts in relation to his security consultant and private investigator duties. He subsequently worked as an investigator for another bank for three years, investigating fraud and workplace harassment.
Mr. Bayes is not a lawyer, but he is familiar with legal systems and workplace harassment. He took steps in the past to confront RBC when he was a whistleblower in 2014 and when he complained about workplace harassment in 2015 to RBC’s senior management. These facts suggest that Mr. Bayes was not entirely powerless in his bargaining position and that he ought to have some appreciation of the importance of seeking legal advice.
The plaintiff argues that from Mr. Bayes’ affidavit and the transcripts from his cross-examination, his state of mind at the time was such that he was not able to make an informed decision. He had just ended a stress leave, was confronted with a new cancer diagnosis, he was seeing a psychiatrist, and as he put it, “my mind [was] not in the right place.” Mr. Bayes did not adduce evidence of a psychiatrist or other mental health professional to support a conclusion that Mr. Bayes’ lacked capacity to make decisions.
While I recognize and accept the vulnerable state in which Mr. Bayes was likely in at the time of his termination, I must also consider the steps taken by RBC to respond to his vulnerability at the time. In particular:
a. RBC provided Mr. Bayes a 13-day extension to decide, resulting in a total of 22-days for him to decide. Being afforded this period of time provided Mr. Bayes with an opportunity to reflect on his options and consult with professionals as RBC recommended. As a result, it was not a position of “necessity” in which Mr. Bayes had no option but to accept, on the spot, the positions put forward by RBC.
b. The Release was a one-page document and not an overly complex document (unlike in Uber). Mr. Bayes was not a lawyer with expertise in understanding legal documents, but the brevity of the document and its simple terms matched with Mr. Bayes’ professional background would have given him some cognitive competence to understand the importance of the document. Still RBC encouraged him to seek independent legal advice, the Release required him to confirm that he had an opportunity to obtain independent legal advice, and Mr. Bayes acknowledged it was fair for RBC to conclude that Mr. Bayes had in fact received and acted on legal advice when he advised RBC that he had “taken legal advice.” In addition, he was in touch with staff at RBC to whom he could direct any questions. As a result, the potential for cognitive asymmetry as between the parties was minimized.
c. Through Ms. McLennan, a further option was provided to Mr. Bayes to respond to his concern about being unable to search for work. This demonstrated an attempt to accommodate Mr. Bayes’ concern.
d. He was offered counselling.
e. The tone and tenor of the several email communications from Ms. McLennan to Mr. Bayes were sensitive and responsive to his concerns and did not evidence callousness or undue pressure on Mr. Bayes.
These factors, in my view, suggest that RBC had engaged in efforts to level the playing field and address any apparent inequality of bargaining power.
Mr. Bayes states in his affidavit that during his call with Ms. McLennan on September 5, 2017, “I was further informed by Ms. McLennan that I had to execute a release in RBC’s favour, notwithstanding my health-related predicament and significant vulnerability.” He further states that “both Mr. Pentke and Ms. McLennan forced me to make a decision between income protection and retirement that day (i.e., September 5, 2017), during the time I had just been informed of my potential death sentence.” His counsel argues that this event, and RBC’s refusal to provide a further extension on this date, is of critical importance because this is when Mr. Bayes was most vulnerable and he ought to have been afforded a further extension to seek legal advice. As I noted earlier, this is a disputed fact as Ms. McLennan has no recollection of this call and no record of having received it.
I have carefully considered whether a fair determination of this motion requires that I receive viva voce evidence from Mr. Bayes and Ms. McLennan. I am satisfied that it is not necessary for four reasons.
First, the alleged call occurred over four years ago and I have doubts as to whether recollections would be improved with viva voce testimony given the passage of time.
Second, the issue has already been canvassed in affidavits and during cross-examinations. I doubt if anything further would be gleaned by the Court from live testimony.
Third, even if the call did occur on September 5, 2017 and Mr. Bayes did advise RBC he had received confirmation of a prostate cancer diagnosis on that day, I am not satisfied that it would have placed Mr. Bayes in a more vulnerable position as compared to when he was terminated on August 14, 2017. Mr. Bayes evidence was that he was diagnosed with cancer in May of 2017. By August 17, 2017, he learned that he may have prostate cancer, about three weeks before September 5, 2017. While I accept that he was distraught and deeply concerned upon receiving confirmation of his prostate cancer diagnosis, he had 22 days since his termination to seek legal advice and consider his options already aware that he had one form of cancer and that he may receive confirmation of another. While he complains he had no further time to seek independent legal advice after September 5, 2017, RBC had already strongly encouraged him to do so on August 14, 2017 but he did not do so. This raises serious questions about whether he would have in fact sought legal advice, if afforded a further five-week extension.
Finally, if I were required to make a finding as to whether Mr. Bayes requested a further extension from Ms. McLennan during a call on September 5, 2017, I would exercise my powers under rule 20.04(2.1) to conclude that, on a balance of probabilities, he did not. Paragraph 17 of Mr. Bayes’ affidavit, in which he recounts details of this alleged call, was amended six months after it was first sworn by Mr. Bayes. This suggests that Mr. Bayes’ original or subsequent recollection may not have been accurate. In addition, Ms. McLennan’s evidence is that if a lengthy extension had been requested, she would have had to consult with others at RBC, but Ms. McLennan stated she has no records showing this request was made. The evidence does, however, include records of Ms. McLennan responding to Mr. Bayes’ initial request for an extension. I draw an inference from the evidence, that if a second request for an extension had been made, there would have been a record of it. Without such a record, on a balance of probabilities, I conclude that the request for a second extension was not made.
There will always be some inequality of bargaining power when an employee is terminated. I find that while Mr. Bayes was vulnerable due to his termination and health condition, RBC had taken sufficient and appropriate steps to narrow the difference in relative bargaining power through the accommodations it offered to him and by encouraging him to seek independent advice. As such, in my view, this is not an appropriate case for the court to exercise its equitable jurisdiction and relieve Mr. Bayes of his contractual obligations in the Release he signed.
If I am wrong in this conclusion, I next consider whether the Release has resulted in an improvident bargain.
Improvident Bargain
Improvidence must be assessed contextually, considering the surrounding circumstances at the time of contract formation, to consider whether undue advantage or disadvantage has materialized. Does the bargain defy the reasonable expectations of the weaker party or cause an unfair surprise? See Uber, at paras. 75 - 77.
In my view, I do not find the Release resulted in an improvident bargain. The context does not support such a conclusion. Mr. Bayes received, in consideration for the Release, $90,604, representing approximately 75% of his annual salary of $106,100. This amount, given Mr. Bayes’ nine years of employment with RBC, does not reflect an unreasonable settlement amount that was manifestly unfair to Mr. Bayes or unduly advantageous to RBC.
I have also considered the state of mind of Mr. Bayes and his vulnerability at the time. While Mr. Bayes may now wish he had not signed it, settling parties often place greater value on the certainty of a final settlement as compared to the uncertainty of future litigation. Therefore, it cannot be concluded that the bargain reached was clearly prejudicial to Mr. Bayes because of his vulnerability.
A release, of the nature used in this case, is commonly used when parties settle employment disputes. It was fully set out in one-page, and its terms were not hidden in complex schedules or appendices. While legal language is used, it would not be beyond comprehension for someone who has some experience with legal systems. If not fully understood by Mr. Bayes at the time of signing, it would have been quickly understood had he obtained legal advice which he was encouraged to obtain. There is nothing uncommon or unusual about the Release. While Mr. Bayes may now object to its terms, it cannot be said that its contents would have defied the reasonable expectations of a person in the shoes of Mr. Bayes or that it would have resulted in an unfair surprise.
IV. Conclusion
- I find that a trial is not required to determine whether or not the Release is enforceable and binding on the plaintiff. I find that the defence of duress and unconscionability relied upon by the plaintiff cannot be sustained to relieve him of his contractual obligations under the Release. Accordingly, summary judgment is granted in favour of the defendants.
V. Costs
- Parties may submit a maximum 3-pages of cost submissions, with an attached Bill of Costs. The defendants shall deliver their submissions within 14 days of the release of this decision. The plaintiff may deliver his submissions 14 days thereafter, with any reply submissions 7 days thereafter.
Justice M. D. Sharma
Date: October 14, 2021
COURT FILE NO.: CV-18-00606417
DATE: 20211014
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Thomas Bayes
Plaintiff/Moving Party
– and –
Royal Bank of Canada, Michael Hubley, Brian Higgins, Mark McCarthy, Brenda Balsdon;
Defendants
REASONS FOR JUDGMENT
Justice M. D. Sharma
Released: October 14, 2021