January 14, 2015

Two senior corporate officials have been jailed for health and safety offences in Ontario, writes Adrian Miedema in the Dentons Canadian Occupational Health & Safety Law blog. Two directors of New Mex Canada Inc. were jailed for 25 days after a worker was killed in a workplace accident:

Baldev Pura and Rajinder Saini — both directors of New Mex Canada Inc. — were sentenced to 25 days in jail.

And New Mex Canada, an importer and retailer of furniture and accessories, has been fined $250,000.

On Jan. 18, 2013, a worker was moving merchandise in a Brampton, Ont., warehouse using a combination forklift/operator-up platform called an order picker.

The order picker had been modified and had an additional platform supported by the forks which did not have a guard rail around it, and the worker wasn’t wearing fall protection or safety shoes.

The worker was found on the floor and was pronounced dead of blunt force trauma to the head.

The Alberta Human Rights Commission released two decisions recently that concerned the status of settlements between the complainants and respondents.

In Caron v. The City of Edmonton, the respondent argued that the complaint had been settled and that the AHRC lost jurisdiction to hear the complaint.  In determining that the matter had been settled when the respondent offered and paid the sum of $10,000 in exchange for the complainant withdrawing his complaint (and the complainant instructed his counsel to accept), the tribunal chair wrote:

[36]      In considering the matter of whether a settlement agreement should be set aside, I have found it useful to refer to the principles enumerated by Justice Rooke in the Chow v. Mobil Oil Canada decision.[6] As noted in Mr. Carter’s correspondence of September 19, 2014, the decision sets out some criteria for determining the validity and enforceability of an agreement. While the decision addresses the matter of a release given in the context of a human rights complaint, the principles concerning validity and enforceability are no less applicable when considering the validity and enforceability of the purported settlement agreement in the present case. The list provided by Justice Rooke is not intended to be exhaustive of the grounds of challenge. Nonetheless, it includes many pertinent considerations on which I have relied in the summary below:[7]

  1. The actual language of the release itself, [or in this case the withdrawal of the human rights complaint] as to what is included, explicitly or implicitly.
  1. Unconscionability, which exists where there is an inequality of bargaining power and a substantially unfair settlement: Lloyds Bank v. Bundy, [1975] 1 Q.B. 326; Blackmore v. Cablenet Ltd. (1994), 1972 CanLII 864 (SKDC), 8 C.C.C. (2d) 174. This does not, however, allow a tribunal to interfere with a settlement where it finds inadequacy of consideration: Gissing v. T. Eaton Co.,[1911] O.L.R. 50 (C.A.).
  1. Undue Influence may arise where the complainant seeks to attack the sufficiency of consent: Yui-Ming Sui. A plea of this nature will be made out where there has been an improper use by one party to a contract of any kind of coersion, oppression, abuse of power or authority, or compulsion in order to make the other party consent.
  1.       The existence or absence of independent legal advice may also be considered: Yui-Ming Sui; and Adamson. However, if a party has received unreliable legal advice that may not affect the settlement: Robertson v. Walwyn.
  1.       The existence of duress (not mere stress or unhappiness), and sub-issues of timing, financial need, and the like …: Heys, Adamson, D. & C. Builders, and Gregov). 
  1.       The knowledge on the party executing the release as to their rights under the Act, and, possibly, the knowledge on the party receiving the release that a potential complaint under the Act is contemplated.
  1. … lack of capacity, timing of the complaint, mutual mistake, forgery, fraud, etc.

In Stergiou v Apache Canada Ltd., the complainant settled her complaint with the company, received settlement funds, and signed a release. She later filed a human rights complaint based on rumours she heard about herself and a former co-worker. The complainant was given an opportunity to seek independent legal advice and new the that the release was important. She testified that she read the release and signed it, but at the time did not really understand it.

The AHRC found the release valid and enforceable:

[21]      On the facts presented by Ms. Stergiou, she was meeting her monthly financial obligations; there is no basis for setting aside the Release for any reasons of dire financial circumstances. Ms. Stergiou was unwilling to pay a $150 fee for advice about whether the $14,000 payment offered her was appropriate in the circumstances. She testified she was unwilling to meet with or pursue legal advice if there was a fee to be charged. In the circumstances, I do not accept that Ms. Stergiou did not have the opportunity to obtain independent legal advice. She had three pages setting out the names of lawyers from which she could have chosen one. Especially in the face of a $14,000 payment, a fee of $150 is not a reasonable basis upon which Ms. Stergiou can now say she was not given an opportunity to obtain independent legal advice. I reject this argument.

[22]      Ms. Stergiou was given seven days to review and return the signed Release. Even where there is a holiday weekend, a week is typically sufficient time to review a Release and obtain independent legal advice. Where, as here, the complainant returned the signed Release five days prior to the deadline, it is not open to now say she did not have enough time to consider her options. There has been no evidence presented of any undue pressure applied by Apache to Ms. Stergiou. The timeline allowed for signing the Release seriously undermines this argument.

[23]      Based on Ms. Dexter and Ms. Stergiou’s testimony, I accept that she was upset by her termination of employment, but there is no evidence that she was upset to the point of being unable to competently make decisions. She was able to attend interviews and apply for positions. The upset does not approach mental incapacity. I find it is accurately characterized as stress and unhappiness, which do not ground invalidity.

[24]      There was no evidence of duress, or unreasonable requests made of Ms. Stergiou by Apache. Ms. Dexter appropriately stopped Ms. Stergiou from signing the Release during the termination meeting and recommended she take time to review the documents.

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