Canadian Employment Law Today

Canadian Employment Law Today | 3 Canadian HR Reporter, a Thomson Reuters business 2015 Cases and Trends ink carefully before signing that release Releases are usually the final word, so both employers and employees should make sure they're prepared to live with it BY RONALD MINKEN MOST do not question the enforceability of a signed release with respect to known claims at the time the release is signed. But what about "unanticipated" claims that are discovered after the release has been signed? Can those claims be pursued? In Born v. Regis Corporation, the Ontario Human Rights Tribunal determined that the employee's application pursuing a new claim could not proceed due to the fact that the employee had previously signed a full and final release with respect to a wrongful dis- missal claim, and allowing the application to proceed would be an abuse of process pursu- ant to the Statutory Powers Procedure Act. Rosella Born, and her former employer, Regis Corporation, entered into a binding settlement at mediation to resolve wrongful dismissal claims Born had made. e terms of settlement included Born signing a full and final release that included her releasing Regis Corporation from all claims, including any pursuant to the Ontario Human Rights Code, that she "had, now had, or hereinaf- ter may have" against the Regis Corporation. Born didn't realize at the time she signed the release that she was entitled to payment of employment expenses incurred during her employment — she only discovered this several months later. After discovering that Regis Corporation had paid similar expenses for other employees, Born commenced an application against the employer for dis- crimination on the basis of sex, sexual solici- tation or advances, and reprisal. At a preliminary hearing, Born took the position that the release was not binding and did not prevent her application from pro- ceeding because she signed the release un- der duress and without knowing that Regis Corporation should have paid her employ- ment expenses. e duress argument was based on the fact that the mediator — who revealed at the start of the mediation that his sister worked for Regis Corporation — alleg- edly bullied Born into accepting the settle- ment and that she was in poor health — hav- ing not fully recovered from a car accident earlier that year — and was very vulnerable to the alleged bullying. e tribunal reviewed the facts, along with s. 23(1) of the Statutory Powers Proce- dure Act and relevant case law. e tribunal stated that in some cases an application may proceed despite the existence of a signed re- lease without the application being an abuse of process. However, in this circumstance, allowing the application to proceed would be an abuse of process. e tribunal reviewed the test for duress and determined that Born did not sign the release under duress despite the alleged con- duct of the mediator, as Born had both legal counsel and her husband present at the me- diation to provide legal and emotional sup- port. Born received legal advice with respect to the content and legal implications of the release, including the language regarding the release of claims that she "had, now has, or hereinafter may have," and did not have to resolve matters at the mediation. e tribunal held that Born clearly re- leased Regis Corporation from "claims for any and all specific head of damages, includ- ing those that may or may not have been anticipated or considered by [Born] at the time she signed the release." e fact that Born did not know at the time the release was signed that her employment expenses should have been paid by the employer was not a valid justification for voiding the re- lease. Accordingly, the application was dis- missed. Lessons for employees Employees should be aware that while there may be very narrow circumstances where a signed release will later be deemed to be null and void, typically releases will be up- held to prevent further legal action against the employer. Depending on the language, the signed release will likely apply to "unan- ticipated" claims that are not known at the time of signing and are discovered at a later time. For this reason, employees should be very careful when entering into a release and consider not only the present, known claims that are being released, but also potential claims that may arise in the future. If prop- erly drafted and entered into, full and final releases will be binding forever! Lessons for employers is decision demonstrates that although there is typically finality to a matter once an employee signs a full and final release, there may be circumstances in which a sub- sequent legal action may proceed without there being an abuse of process or another legal barrier. While this appears to be rare, the right circumstances may arise. To pre- vent such an occurrence, it is crucial that the language of the release be carefully drafted to eliminate loopholes and that it be signed under proper circumstances. For more information see: • Born v. Regis Corporation, 2015 HRTO 555 (Ont. Human Rights Trib.). ABOUT THE AUTHOR RONALD S. MINKEN Ronald S. Minken is a senior lawyer and mediator at Minken Employment Lawyers, an employment law boutique in Markham, Ont. He can be reached at www.MinkenEmploymentLawyers.ca. Ron gratefully acknowledges Sara Kauder and Kyle Burgis for their assistance in preparation of this article. The employee had both legal counsel and her husband present to provide support WEBINARS Interested in learning more about employment law issues directly from the experts? Check out the Carswell Professional Development Centre's live and on-demand webinars discussing topics such as key developments in employment law, employment standards, mitigation, and biometrics. To view the webinar catalogue, visit cpdcentre.ca/hrreporter.

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