Canadian Employment Law Today

©2020 HAB Press Limited, a subsidiary of Key Media KEY MEDIA and the KEY MEDIA logo are trademarks of Key Media IP Limited, and used under license by HAB Press Limited. CANADIAN EMPLOYMENT LAW TODAY is a trademark of HAB Press Limited. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photo- copying, recording or otherwise, without the prior written permission of the publisher. The publisher is not engaged in rendering legal, accounting or other professional advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The analysis contained herein represents the opinion of the authors and should in no way be construed as being either official or unofficial policy of any governmental body. GST/HST#: 70318 4911 RT0001 How would you handle this case? Read the facts and see if the judge agrees YOU MAKE THE CALL Published biweekly 22 times a year Subscription rate: $299 per year CUSTOMER SERVICE info@keymedia.com www.employmentlawtoday.com 20 Duncan St. 3rd Floor, Toronto, ON M5H 3G8 President: Tim Duce Editor: Jeffrey R. Smith Email: jeffrey.smith@keymedia.com Production Editor: Patricia Cancilla Business Development Manager: Fred Crossley Email: fred.crossley@keymedia.com Phone: (416) 644-8740 x 236 Marketing Co-ordinator: Keith Fulford Email: keith.fulford@keymedia.com Phone: (416) 649-9585 HAB Press Ltd. Release gives no relief to fired worker THIS EDITION of You Make the Call involves a worker who claimed she wasn't able to prop- erly understand a release she signed upon ter- mination due to a mental illness and a lack of legal advice. The worker was employed with John Deere Financial, the Oakville, Ont.-based financial lending arm of farm equipment and vehicle manufacturer John Deere. She was hired on April 23, 2018 and worked with the company for just more than six months, including a pe- riod when she went on stress leave. However, on Nov. 6 — not long after the worker's return from stress leave — the compa- ny's HR division manager met with the worker and informed her that the company was ter- minating her employment without cause. The HR manager read through the termination let- ter with the worker and gave her the chance to ask questions. The worker had a few, including how to pick up her personal belongings from her work station. Along with the termination, the company had a release that it asked the worker to sign in exchange for an extra payment added to her termination pay. The release included clauses that discharged the company from all legal ac- tions arising out of the worker's employment with John Deere Financial, her termination of employment and any claim under the Ontario Human Rights Code. The company allowed the worker to take the release home and gave her up to two weeks to seek legal advice before signing it. However, the worker looked at it that night, signed it and brought it back the next day with her signature acknowledging that she understood and vol- untarily accepted the terms of the release, as well as that she had an opportunity to receive legal advice about it. Following her termination, the worker filed a complaint under the Ontario Human Rights Code, alleging that she was discriminated against because she couldn't afford a lawyer to review the release and she had a mental illness that prevented her from "fully understand- ing [her] legal obligations." The worker didn't provide medical information on her mental illness, but she argued that John Deere Finan- cial should have known about her condition because she had recently returned to work after a stress leave. The worker also said that she didn't under- stand that the release prevented her from filing a human rights complaint and "maybe" her mental illness hindered her in that regard as well. YOU MAKE THE CALL Did the worker have a basis for a human rights complaint based on her mental illness? OR Was the release valid and prevented her from making a complaint? IF YOU SAID the release was valid and pre- vented the worker from making a human rights complaint, you're right. The tribunal noted that, normally, a signed release should stand where it shows a "clear intention" by both parties to release the em- ployer from all claims. It had been established in precedents that a signed release should only be quashed if: The employee didn't fully understand the significance of the release; The employee didn't receive sufficient and fair consideration for signing the release; The employer exerted economic pressure on the employee; The employer exerted psychological or emo- tional pressure amounting to duress. In this case, the tribunal found that the work- er received full and fair consideration as well as consideration for signing the release and the issue was the worker's claim that her inability to hire a lawyer and her mental illness prevented her from fully understanding the significance of the release — the first criterion listed above. However, although the worker claimed she had a mental illness that affected her ability to understand what she was signing, she didn't provide any medical information on the nature of her disability. Without such evidence, there was nothing indicating that she was incapable of or prevented from understanding the terms of the release, which were otherwise laid out clearly, said the tribunal. The tribunal also found that being unable to afford a lawyer didn't change the fact that the worker "freely signed" the release and acknowl- edged that she had been given an opportuni- ty to seek legal or other advice. Although the worker claimed advice from a lawyer wasn't an option for her, she provided no evidence that she tried to seek any other advice before signing the release. By signing it that night and return- ing it the next day, the worker didn't really give herself an opportunity to seek other advice. The tribunal determined that the release was "clear and comprehensive" and that the worker failed to prove she was unable to un- derstand it due to a mental disability or her inability to afford a lawyer to review it. As a result, the release was valid and prevented the worker from proceeding with a complaint be- fore the tribunal. For more information, see: • Frances Townsend and John Deer Financial Inc., Re, 2019 HRTO 1471 (Ont. Human Rights Trib.).

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