Canadian Employment Law Today

Canadian Employment Law Today Canadian Employment Law Today | | 3 Cases and Trends Cases and Trends Canadian HR Reporter, 2021 AN ONTARIO worker was not coerced into signing a settlement agreement releasing her former employer from her claim of disability discrimination and she understood what she was getting into, the Ontario Human Rights Tribunal has ruled. The worker was a long-time employee of New Horizon System Solutions, a Toronto- based company providing information tech - nology consulting services. In 2008, the com- pany had her office painted and the worker started feeling affected by the paint fumes, claiming they triggered her environmental sensitivities. In the summer of 2016, the worker went on sick leave backed up by medical documenta - tion that stated her sensitivities were being aggravated by exposure to mould and toxins in her office. The documentation also said she needed accommodation by being placed in a workplace that was free of mould and toxins. New Horizon's disability management ad - visors, Oncidium, conducted air quality tests in the office and their consulting physician declared that there was no causal connec- tion between the worker's symptoms and her workplace. As a result, New Horizon deter- mined that accommodation wasn't necessary and the worker could return to her regular office. In September 2016, the union filed a griev- ance on the worker's behalf, alleging that New Horizon failed to accommodate the worker's disability and violated her rights un- der the Ontario Human Rights Code. The grievance went to arbitration and the union, the worker and New Horizons. Lead- ing up to the arbitration, the worker didn't sleep for 36 hours and emailed the union rep- resentatives to let them know she was sleep- deprived but "right now I am wide awake… stress and adrenaline." She was expecting that New Horizon would agree to accommodate her by returning her to work in a different location and apologize for the way she was treated, but the arbitrator informed her that the company would not recognize that she had a disability. Payment for release and termination The company, the union and the worker met for mediation and the worker was given the option of accepting a settlement that in - cluded money in exchange for a severance of the employment relationship. According to the worker, her lack of sleep along with anxi- ety affected her ability to understand what was happening. She got upset, said she "gave up" and called her spouse and daughter for support. The worker also tried calling her respirolo- gist to get documentation that she had a dis- ability, but he wasn't available. New Horizon revised its settlement offer with more money — which it characterized as "human rights damages" — and the worker felt she had to accept or go back to her old workplace. She claimed later that she didn't realize she could get independent legal advice. The worker signed the settlement agree - ment, which included a statement that she wouldn't pursue any further legal action against New Horizon for any reason and that she "is freely and voluntarily agreeing to the terms of the settlement." The union withdrew the grievance and the worker's employment was terminated effective Jan. 6, 2017. The worker filed a human rights com - plaint, alleging that New Horizon discrimi- nated against her on the basis of disability and reprised against her by refusing to ac- commodate her and coercing her to sign a settlement agreement terminating her em- ployment. She said the settlement offer made to her during the mediation was a threat and she was locked in the hearing room for seven hours until she agreed. She also said she had no choice because if she returned to her old workplace "she would die." The tribunal found that a settlement agreement should be "given effect unless there are compelling reasons to set it aside," since parties should be able to rely on them — otherwise, there would be no point in signing them. Allowing a legal motion to proceed when the initiator of the motion signed a release would be an "abuse of pro - cess," said the tribunal. Signing the agreement under duress would be a reason to set it aside, but the worker's claims that it applied to her weren't credible, the tribunal found. The worker alleged that she was locked in a room for seven hours un - til she signed, but she was with three union representatives, including a lawyer, with whom she could discuss the settlement and solicit advice. In addition, she made three phone calls — to her spouse, her daughter and her respirologist — so she wasn't cut off from the outside world, said the tribunal. The tribunal also accepted that the worker was sleep-deprived and suffered from depres - sion and anxiety, but there was no medical evidence that indicated these symptoms af- fected her ability to understand what was happening and the terms of the settlement. When she notified the union of her condition before the settlement meeting, she said she was feeling wide awake. The worker said she was upset and afraid and that she "gave up" but not that she didn't understand anything. The tribunal also noted that the worker had not refused or returned the money that New Horizon offered to heras severance pay and general human rights damages. "I find that the [worker] was capable of understanding the settlement into which she entered, but later regretted her decision and now wishes to resile from the agreement," said the tribunal. It didn't accept that the worker believed she would die if she returned to the same work - place. The worker claimed she had X-rays showing damage to her lungs and believed she would die because of her environmental sensibilities, but she didn't present any such evidence and the tribunal found this "to be exaggerated in the absence of significant con - textual evidence." The tribunal found the settlement agree- ment was valid and released New Horizon from any legal claims from the worker. It dis- missed the worker's complaint. For more information, see: • Graham v. New Horizon System Solutions, Inc., 2020 HRTO 49 (Ont. Human Rights Trib.). Ontario worker's claims she was coerced into settlement she didn't understand not credible: tribunal BY JEFFREY R. SMITH Valid settlement, release quashes discrimination claim The worker was sleep-deprived and suffered from anxiety, but there was no medical evidence that indicated these symptoms affected her ability to understand the terms of the settlement. ABOUT THE AUTHOR Jeffrey R. Smith Jeffrey R. Smith is the editor of Canadian Employment Law Today. He can be reached at jeffrey.smith@keymedia.com, or visit www.employmentlawtoday.com for more information.

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