May 15th, 2018
The Ontario Human Rights Code does not explicitly prevent an applicant from bringing an application against his/her employer after having executed a full and final release. However, the Human Rights Tribunal of Ontario may consider whether allowing such an application to continue would amount to an abuse of process.
Section 45.1 of the Code gives the Tribunal the authority to dismiss an application, in whole or in part, “if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application”.
The free and voluntary execution of a full and final release has been interpreted by the Tribunal to be “another proceeding” that appropriately deals with the substance of a human rights application against a former employer. Many full and final releases will include a clause seeking to preclude the employee who signs the release from bringing a claim against his/her former employer that stems from the employment relationship, including an application under the Code.
In some situations, the Tribunal will nonetheless permit applications to continue such as when the applicant can show that the release was signed under duress. The determination as to whether the release was signed under duress takes place at a preliminary hearing, before the actual hearing on the merits of the application.
The threshold for duress is high. The applicant needs to put forward clear and convincing evidence that the applicant suffered economic, psychological, and/or emotional pressure such that he/she had no choice but to sign the release. The loss of free will is critical to a finding of duress. The Tribunal has held in some cases that financial difficulty following loss of employment is one factor to consider, but is insufficient on its own to support a claim of duress.1
If you are faced with termination from your employment and are asked to sign a release, be sure to seek independent legal advice beforehand. If you believe that you have been compelled to sign a release under duress, and that your rights under the Code were violated by your former employer, contact a lawyer to obtain advice with respect to a potential human rights application promptly as you may be precluded from pursuing an application if it is filed more than one year from the date of the last incident of discrimination.
1 See for example Kailani v Securitas Canada, 2009 HRTO 1183 (CanLII).