Abuse of process to file human rights application after executing a full and final release

October 19, 2012 Christina Catenacci Employee Relations, Human Resources, Human Rights, Union Relations

I recently read a case where a human rights claim was dismissed. After an employee had signed a full and final release with the employer and then filed a human rights application, the Ontario Human Rights Tribunal found that it amounted to an abuse of process. As the complaint covered the same subject matter as the release, the result was that the human rights claim was dismissed.

The employee, a personal support worker in a long-term care facility, filed a human rights application alleging discrimination on the ground of colour and creed, and reprisal.

Essentially, the employee felt she was subject to harassment at work, and brought her concerns to the manager. Instead of dealing with her concerns, the employer forced her to resign and sign a Minutes of Settlement. Then, the employee filed a grievance alleging her union did not represent her properly. The employee argued at the human rights hearing had nothing to do with her previous grievance against her union.

The problem was the release she had signed with her employer.

The employer requested that the application be dismissed because the employee had already signed a release covering the same subject matter.

Interestingly, the employee claimed she did not understand what she was signing due to her adjustment disorder and depressive mood disorder.

Notwithstanding that claim, the Tribunal agreed with the employer.

It was clear that the Tribunal had found on a number of occasions that filing a human rights application after executing a full and final release amounted to an abuse of process. Those applications end up being dismissed.

On examining the provision at hand, it was clear that the parties intended the Minutes of Settlement to be a final settlement and the employee was not entitled to pursue any further remedies regarding her employment, or the termination of her employment. This included remedies under the Human Rights Code.

Indeed, there were factors that could help set aside the release, but they did not apply in this case. The factors included:

whether the employee fully understood the significance of the release
whether the employee received sufficient and fair consideration for signing the release
evidence of economic pressure
evidence of psychological or emotional pressure amounting to duress

There was no medical evidence showing that the employee lacked the capacity to understand the Minutes of Settlement – her condition did include cognitive impairment that would prevent her from understanding, and the clinical notes provided from an assessment after the fact stated she had no formal thought disorder or cognitive impairment.

Moreover, the employee did not sign the Minutes of Settlement under duress. Therefore, the application had to be dismissed.

What can employers take from this?

Having a release is important when dealing with a departing employee who receives a settlement.

Also, when asking an employee to sign such a release, it is recommended that the employer:

make it clear for the employee to understand, and allow some time to think it over and seek independent legal counsel
provide sufficient and fair consideration for signing the release
do not pressure the employee in any way

Christina Catenacci
First Reference Human Resources and Compliance Editor

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Christina Catenacci

Christina Catenacci, BA, LLB, LLM, was called to the Ontario Bar in 2002 and has since been a member of the Ontario Bar Association. Christina worked as an editor with First Reference between February 2005 and August 2015, working on publications including The Human Resources Advisor (Ontario, Western and Atlantic editions), HRinfodesk discussing topics in Labour and Employment Law. Christina has decided to pursue a PhD at the University of Western Ontario beginning in the fall of 2015. Read more

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