In Kolokythas v. Canada Booking.com Customer Service Centre Inc., 2021 HRTO 587 (CanLII), the applicant employee filed a human rights application against the respondent employer Canada Booking.com Customer Service Centre Inc. (“Canada Booking”) while still in its employ. The applicant alleged discrimination contrary to the Ontario Human Rights Code (the “Code”) on the basis of disability, sex, sexual orientation, gender identity and gender expression in employment.
Canada Booking terminated the applicant’s employment effective September 12, 2020, along with several hundred other employees, as a result of a permanent closure of its customer service call centre due to the impact of COVID-19 on the travel industry. At the time of termination, Canada Booking offered the applicant a termination package in exchange for signing a full and final release (the “Release”) and provided the applicant until September 30, 2020 to consider the termination package and seek independent legal advice.
After seeking legal advice, the applicant returned the signed the Release to Canada Booking on September 15, 2020. He was paid the amounts specified in the termination package on September 25, 2020.
The Human Rights Tribunal of Ontario (“HRTO”) held a preliminary hearing on March 21, 2021 to determine if the application should be dismissed on the basis that the applicant signed the Release.
The HRTO explained that two questions must be answered in determining whether a release should result in the dismissal of an application. First, does the release on its face prohibit the applicant from making a claim under the Code? Second, is there some reason for not requiring the applicant to be bound by what would otherwise be a binding promise to not bring an application before the HRTO?
With respect to the first question, the HRTO found that even though the Release did not specifically reference the applicant’s human rights application, it was clear from the language of the Release that by accepting the monetary consideration offered by Canada Booking, the applicant was settling any human rights based complaints. The Release referred to the Code three times, included a reference to the HRTO and also contained an entire paragraph on the topic of human rights claims. The HRTO explained that it is well established that a release does not have to identify which specific claims are covered so long as it indicates that all claims are covered.
The HRTO also found that the applicant signed the release voluntarily and that the applicant had the benefit of legal advice prior to signing it. The applicant’s counsel admitted at the hearing that she told the applicant (prior to him signing the Release) that it was possible that the HRTO would determine that the Release precluded his application. The HRTO noted that the applicant chose to sign the Release anyway and did not propose any amendments to the Release through his legal counsel. Given the circumstances, the HRTO found that the applicant was bound by the “literal and ordinary meaning” of the Release as it was written. Thus, the HRTO found that words in the Release were unambiguous and sufficient in themselves to conclude that the applicant released any claims under the Code, including those made in his application prior to his termination and the acceptance of the termination package.
With respect to the second question, the applicant made a number of submissions to advance the position that he should not be bound by the Release, including: the existence of the global pandemic; the power imbalance between Canada Booking, a large sophisticated company, and the applicant, an individual; signing the Release amounted to financial duress because of the applicant’s financial situation; and the public interest component of the case. After considering all of the applicant’s submissions, the HRTO found that none of the submissions would warrant setting aside the Release. In response to the applicant’s pandemic argument, the HRTO stated that a global pandemic is not an excuse to ignore the basic principles of contract law and that it is in the public interest for the HRTO to act in a manner consistent with those principles, to reassure the public that the consensual bargains they make for consideration will continue to be upheld despite global uncertainty.
The HRTO concluded that it would be an abuse of process to permit the application to proceed given the clarity and specificity of the Release, especially in light of the fact that the applicant considered it for several days, clarified portions of it with Canada Booking and consulted with legal counsel before signing it. The HRTO explained that the primary goal of contract interpretation is to give effect to the intentions of the parties at the time the contract was entered into. If the parties agree to settle the issues between them and that settlement includes a human rights claim, then the principles associated with the doctrine of finality, judicial economy and abuse of process are all applicable whether the settlement occurs before or after the filing of an actual human rights application.
The applicant’s human rights application was barred by the Release and was not allowed to proceed.
This decision should reassure employers that a properly drafted release will be enforceable and will provide the certainty that such deals are intended to provide.
