The question became relevant in the recent case of Brown v. Prime Communications Canada Inc. After signing a release with her employer, the Applicant, Stephanie Brown filed an application with the Human Rights Tribunal of Ontario alleging discrimination with respect to employment because of sex contrary to the Human Rights Code. [i]
The employer was relocating its office, and as such, the Applicant’s employment was terminated and Ms. Brown was paid money in lieu of notice. As part of the agreement, Ms. Brown was asked to sign a release. Ms. Brown filed her human rights application some seven months later.
The Tribunal held a preliminary hearing by teleconference on January 27, 2015 to determine whether or not the application was able to proceed.
The Applicant argued that the Respondent had taken advantage of the fact that she was on maternity leave as a means to force her out of her employment.[ii] She further stated that due to the timing of the decision, she did not have the same advantages as other employees who were offered alternative working arrangements. The Applicant, although admitting to having signed the release, and having been paid money in lieu of notice, argued that she was forced into the signing the document as a result of post-partum depression and anxiety, together with financial pressures as she had been off work a number of months due to the pregnancy. The Applicant plead that she should be released from the agreement because she signed it under duress.
The Respondent did not file a full response, but requested that the application be dismissed in light of the Applicant having signed a release agreeing not to bring forward any Application.
The Tribunal stated that the “Code” does not explicitly bar applications where an Applicant has executed a release in favour of a Respondent. [iii] The 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.
In examining case law, the Tribunal cited Better Beef Ltd. v. MacLean, 2006 CanLII 17930 (ONSCDC) at paras. 46-48 that confirmed:
….where “the literal and ordinary meaning of the 2015 HRTO 136 (CanLII) 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.
In reviewing the matter the Tribunal found the following: that the Applicant had understood the significance of the release, as well as the provision which barred her bringing forth a “Code” application, and that the agreement was written in sufficiently plain language.[iv] The Tribunal also found that the consideration the Applicant had received was in excess of her Employment Standards entitlements. Further, that the Applicant’s argument of duress did not meet the standard, as duress needed to amount to a “coercion of the will”, and that following termination it was commonplace for an employee to experience some manner of financial pressure.[v]
The Tribunal dismissed the application stating that due to the existence of, and the conditions within the full and final settlement, continuing with the application would be an abuse of the process.[vi]
In this matter there were several factors that worked in favour of the Respondent. Firstly, the reason for termination appeared to be valid. Secondly, the Applicant was given in excess of the Statutory Requirement, and finally, there was a plain language full and final release that had been executed by the parties. Such precautionary methods saved the Respondent the time and money associated with a Human Rights hearing.
[i] Brown v. Prime Communications Canada Inc..2015 HRTO 136 para.1
[ii] Ibid., para. 5
[iii] Ibid. para. 10
[iv] Ibid. para. 14
[v] Ibid. para. 15
[vi] Ibid. para. 18