Christopher Caponero Applicant - v. -, 2024 ABKB 2

Court of King’s Bench of Alberta Citation: Caponero v Alberta Human Rights Commission (Office of the Chief of the Commission and Tribunals) and Kaizen Auto Group Ltd., 2024 ABKB 0002 Date: 20240102 Docket: 2201 06638 Registry: Calgary Between: Christopher Caponero Applicant - and - Alberta Human Rights Commission (Office of the Chief of the Commission and Tribunals) and Kaizen Auto Group Ltd. Respondents _______________________________________________________ Reasons for Decision of the Honourable Justice R.W.

Armstrong _______________________________________________________ Introduction [ 1 ] On August 31, 2020, Mr. Caponero’s employment with Kaizen Auto Group Ltd. was terminated. At the time of the termination, Mr. Caponero was presented with an offer of severance and a release. He accepted the offer of settlement and signed the release.

[ 2 ] Mr. Caponero alleges that the termination of his employment was due to the ongoing effects of an ischemic stroke that he suffered in July 2019. His position is that his employer refused to properly accommodate his disability and he wishes to continue his human rights claim notwithstanding that he accepted a full and final settlement of all claims against Kaizen Auto. [ 3 ] In a decision dated December 13, 2021, a Human Rights Tribunal addressed the preliminary question of the validity of the release that Mr. Caponero signed: Caponero v Kaizen Auto Group Ltd. , 2021 AHRC 197 .

The Tribunal decided that the release was valid, that Mr. Caponero settled his human rights claim and therefore, there were no grounds upon which the human rights claim could proceed. The Tribunal dismissed Mr. Caponero’s claim. Mr. Caponero seeks judicial review of that decision. The Tribunal’s Decision [ 4 ] The Tribunal held a 5-day hearing on the validity of the release signed by Mr. Caponero. Following the hearing, the Tribunal issued a detailed 28-page decision, dismissing Mr. Caponero’s human rights claim on the basis that it had been settled between the parties. [ 5 ] Mr.

Caponero raised three grounds upon which he argued the release should be declared invalid: 1) the release was void for being contrary to the Employment Standards Code , RSA 2000, c E-9 , 2) the release was void because it was ambiguous, and 3) the release was unconscionable. [ 6 ] Mr. Caponero argued that Kaizen Auto violated the Employment Standards Code by requiring him to sign a release before they would pay him the amounts he was entitled to pursuant to the statute. The Tribunal dismissed this argument on the basis that the written offer Mr.

Caponero received said “in conspicuous terms, that the complainant [Mr. Caponero] was not required to sign the Release, and his statutory entitlement was not dependent on signing the Release”: Caponero at para 34 . [ 7 ] The Tribunal also dismissed Mr. Caponero’s argument that the Release was void because it was ambiguous. The Tribunal looked at the package of materials that were provided to Mr. Caponero on August 31, 2020 which included three documents: a letter of termination, a “without prejudice” severance offer and a release.

At para 38 of the decision, the Tribunal said: The respondent terminated the complainant without cause, provided him with his statutory entitlements, offered him an additional without prejudice severance payment, and required him to agree to waive any claims he had or may have against the respondent if he chose to accept the additional severance payment. There is nothing ambiguous or unclear about the offer and terms of settlement. [ 8 ] The Tribunal assessed Mr. Caponero’s claim of unconscionability in light of the Supreme Court of Canada’s decision in Uber Technologies Inc. v Heller , 2020 SCC 16 (“ Uber” ).

The Supreme Court of Canada identified the two-part test for unconscionability at paragraph 62 of that decision: there must be some weakness or vulnerability affecting the claimant and there must be an improvident transaction. [ 9 ] Mr. Caponero argued that he was in a weakened and vulnerable state when he signed the release due to ongoing symptoms from his ischemic stroke, including confusion, poor decision making and poor judgment and memory issues. The Tribunal reviewed the testimony of Mr. Caponero and Ms. Caponero and looked at Mr. Caponero’s return to work efforts.

The Tribunal engaged in a detailed review of Mr. Caponero’s medical records and the evidence of Dr. Surani and Dr. Clark and at paragraphs 52-53 of the decision concluded: On the basis of all of the evidence, I cannot find that, on August 31, 2020, the complainant was experiencing such significant and serious cognitive impairments that would undermine the validity of the Release. I accept the evidence of Drs. Surani and Clark that the complainant would not have been “100%” or at his pre-stroke condition on August 31, 2020.

I also accept the complainant’s evidence that he was still experiencing stroke-related impairments throughout 2020, and to the present. However, that is not enough to find that the complainant’s impairments were so serious, and of a nature to undermine a sufficient level of comprehension and volition. [ 10 ] The Tribunal also looked closely at the events that occurred at the meeting on August 31, 2020, and, at paragraph 76 of the decision, the Tribunal made findings of fact which can be summarized as follows: Mr.

Caponero was provided with copies of the termination letter, the without prejudice offer and the release. Mr. Caponero was given time to read each document and he did read each document. He was told several times that he did not have to sign the documents at that time, and he was encouraged to take them away and seek legal advice. Mr. Caponero declined to go away and think about it or seek legal advice and he chose to accept the without prejudice settlement offer and he signed the release. [ 11 ] Having found that Mr.

Caponero was not suffering from a weakness or vulnerability sufficient to render the release unconscionable, the Tribunal went on to find that Mr. Caponero also failed to establish the settlement he agreed to was an improvident bargain. The claim that the settlement and release were unconscionable was therefore dismissed. [ 12 ] The Tribunal next turned to the claim of economic duress and reviewed the legal test for economic duress as articulated by the Ontario Court of Appeal in Taber v Paris Boutique & Bridal Inc. , 2010 ONCA 157 at paras 8-9 .

For a claim of economic duress to succeed, the claimant must establish that there was illegitimate pressure applied to such a degree that there was no realistic alternative but to submit to the pressure. The Tribunal acknowledged that Mr. Caponero was experiencing financial hardship; however, the Tribunal found that Mr. Caponero had not established that the hardship was such that he had no other choice but to sign the agreement. The

Tribunal noted, he could have accepted his Employment Standards payout and then sought advice or chosen to continue his human rights complaint. He did neither, choosing instead to accept payment in exchange for the release. [ 13 ] Finally, the Tribunal considered and, at para 114 of its decision, dismissed Mr.

Caponero’s allegation of undue influence, finding that the evidence was not sufficient to conclude that the “respondent engaged in a pattern of malicious or improper conduct that amounted to undue influence ...”. [ 14 ] At para 115 of its decision, the Tribunal concluded: For the reasons set out above, I find the parties entered into an agreement, which included the settlement of all outstanding claims, including the complainant’s human rights Complaint. I find no basis upon which to invalidate the Release signed by the complainant. As a result, this Complaint is dismissed.

Standard of Review [ 15 ] The applicable standard of review is reasonableness. The Supreme Court of Canada confirmed that the presumptive standard of review on judicial review is reasonableness: Canada (Minister of Citizenship and Immigration) v Vavilov , 2019 SCC 65 at para 23 .

The parties agree that none of the circumstances that might displace the presumptive standard are present and that the standard of review of this Tribunal’s decision is reasonableness. [ 16 ] According to the Supreme Court of Canada, the role of the court on judicial review is to “consider only whether the decision made by the administrative decision maker – including both the rationale for the decision and the outcome to which it led – was unreasonable”: Vavilov at para 83 . [ 17 ] A reasonable decision is based on rational and logical reasoning.

In other words, any conclusions reached by an administrative tribunal must follow from a rational and coherent chain of analysis. A reasonable decision will be free from logical fallacies such as circular reasoning, false dilemmas, unfounded generalizations, or absurd premises: Vavilov at paras 102-104 . [ 18 ] A reasonable decision is also one that is justified in light of the legal and factual constraints that bear upon it. A reviewing court may ask whether the administrative tribunal has considered the governing statutory scheme, relevant statutory or common law, applicable principles of statutory

interpretation and has made findings of fact based on a reasonable assessment of the evidence: Vavilov at paras 105-106 . [ 19 ] The reasonableness standard of review is a deferential standard. It is not for me to determine whether I agree with the decision that the Tribunal made. It is also not for me to reweigh evidence and come to my own conclusions based on the evidence. That is the administrative tribunal’s job.

I must limit my review to consideration of whether the Tribunal’s decision bears the hallmarks of reasonableness, justification, transparency, and intelligibility, and whether the decision is justified given the existing factual and legal matrix within which the decision was made: Vavilov at para 99 . Issues [ 20 ] Mr. Caponero alleges the Tribunal erred on every issue it decided. This is not an appeal on a correctness standard. It is a judicial review on the standard of reasonableness. The only issue for determination in this judicial review is whether the decision of the Tribunal was reasonable.

The issues decided by the Tribunal and addressed at this judicial review may be broken down into the following areas: A. The Employment Standards Code ; B.

Interpretation of the settlement offer and release; C. Unconscionability; and D. Undue Influence A. The Employment Standards Code [ 21 ] Mr. Caponero complains that the release he signed included both the statutory pay he was entitled to pursuant to the Employment Standards Code and the additional severance pay he would receive if he signed the release. He claims this was contrary to the Employment Standards Code as he could not be required to sign a release to receive the amounts prescribed in the Employment Standards Code . [ 22 ] The Tribunal’s decision dismissing Mr.

Caponero’s argument that the release was contrary to the Employment Standards Code is reasonable. [ 23 ] The Tribunal carefully considered the statutory requirements of the Employment Standards Code and noted that Mr. Caponero was entitled to his statutory pay upon the termination of his employment and that he could not be compelled to sign a release to receive that amount. [ 24 ] The decision of the Tribunal was based on clear and uncontroverted documentary evidence that Mr. Caponero was to be provided with his statutory termination pay regardless of whether he signed the release or not.

The termination letter given to Mr.

Caponero states: The Company hereby tenders to you $3,253.71 representing 5 weeks’ pay in lieu of notice, less applicable withholding taxes and sourcedeductions (“Termination Pay”). The Termination Pay is tendered to you pursuant to sections 56(

a) and 57(1) of the EmploymentStandards Code, RSA 2000, c E-9. Moreover, the Termination Pay represents the full amount of pay in lieu of notice you are entitled tounder the Employment Standards Code. No where does the termination letter state that Mr. Caponero is required to sign a release to receive the termination pay he was entitled topursuant to the Employment Standards Code. [25] To make the matter even more clear, the without prejudice letter given to Mr.

Caponero as part of the termination packagesays: “To be clear, the Company will pay you the Employment Standards Code Payment, whether or not you execute and deliver theenclosed form of Release.” [26] Given the clear intention by Mr. Caponero’s employer to pay him his statutory severance pay pursuant to the EmploymentStandards Code, there is no evidential or factual basis underpinning Mr.

Caponero’s argument that he was required to sign the release toobtain his statutory severance pay. [27] The decision of the Tribunal is based on a careful consideration of the evidence and the reasoning is clear, transparent, andlogical given the requirements of the Employment Standards Code and the evidence before the Tribunal. The Tribunal’s decision on thispoint is therefore reasonable. B.

Interpretation of the settlement offer and release [28] Mr. Caponero takes issue with the fact that 3 separate documents comprised the package he received at the time hisemployment was terminated. The documents presented to him were a termination letter, setting out his entitlements pursuant to theEmployment Standards Code, a without prejudice letter, offering an additional amount of severance in exchange for a release, and arelease. [29] Mr. Caponero argues that the release he signed was ambiguous and therefore ought not be enforced.

According to Mr.Caponero, because the release document included amounts paid pursuant to the Employment Standards Code and amounts paid inexchange for the release it was unclear whether he had to sign the release to obtain payment of his entitlements pursuant to theEmployment Standards Code. [30] This argument was dismissed by the Tribunal on similar grounds as the argument regarding the Employment Standards Code.The undisputed facts in this matter establish that Mr. Caponero was presented with three documents, all of which he reviewed. Readtogether, the three documents clearly advise that Mr.

Caponero is entitled to his statutory pay pursuant to the Employment StandardsCode whether he signs the release or not. [31] The argument that one can look at one piece of the termination package in isolation and then claim there is an ambiguity iswithout authority and without merit. The information and offer presented to Mr. Caponero must be looked at as a whole and interpretedconsidering the full package presented. The Supreme Court of Canada articulated the modern approach to contractual

interpretation inSattva Capital Corp. v Creston Moly Corp., 2014 SCC 53 , [2014] 2 SCR 633 at paras 57-58: The

interpretation of a written contractual provision must always be grounded in the text and read in light of the entire contract ([Hall, Geoff R. Canadian Contractual

Interpretation Law, 2nd ed. Markham, Ont.: LexisNexis, 2012], at pp. 15 and 30-32). While thesurrounding circumstances are relied upon in the interpretive process, courts cannot use them to deviate from the text such that the courteffectively creates a new agreement (Glaswegian Enterprises Inc. v B.C. Tel Mobility Cellular Inc. (1997), (BC CA),101 B.C.A.C. 62). The nature of the evidence that can be relied upon under the rubric of “surrounding circumstances” will necessarily vary from case tocase. It does, however, have its limits.

It should consist only of objective evidence of the background facts at the time of the execution ofthe contract ([King v Operating Engineers Training Institute of Manitoba Inc., 2011 MBCA 80], at paras. 66 and 70), that is, knowledgethat is or reasonably ought to have been within the knowledge of both parties at or before the date of contracting.

Subject to theserequirements, and the parole evidence rule discussed below, this includes, in the words of Lord Hoffmann, “absolutely anything whichwould have affected the way in which the language of the document would have been understood by a reasonable man” ([InvestorsCompensation Scheme Ltd. v West Bromwich Building Society, [1998] 1 All E.R. 98], at p. 114). Whether something was or reasonablyought to have been within the common knowledge of the parties at the time of execution of the contract is a question of fact. [32] Considering this modern approach to contractual

interpretation, it was not only reasonable for the Tribunal to consider thetermination package as a whole, but it was also required. When considered as a whole, the plain wording of the documents presented toMr. Caponero, is clear and unambiguous. There is no question that he did not have to sign the release if he did not accept the additionalseverance pay over and above the statutory pay he was entitled to pursuant to the Employment Standards Code.

It was also clear exactlywhat he was giving up in terms of claims if he accepted the offer of severance and signed the release. [33] Reference to the entirety of the termination package rather than looking at the release in isolation is not a violation of theparole evidence rule as argued by Mr. Caponero. The Supreme Court of Canada confirmed that the parole evidence rule precludesevidence of the subjective intentions of the parties and other fabricated or unreliable evidence to attack a written contract. It does notpreclude evidence of the surrounding circumstances.

Facts that were known or reasonably ought to have been known by both parties to acontract at or before the date of contracting may be used as an interpretive aid for determining the meaning of written words chosen bythe parties: Sattva at paras 59-60. Even if the release is considered a standalone contract, it is reasonable to consider the information inthe other documents that formed the termination package when determining the meaning and intent of the release.

[ 34 ] Furthermore, inclusion of both the amounts paid pursuant to the Employment Standards Code and other severance amounts in the release was appropriate because the release included a release of claims pursuant to the Employment Standards Code . When his employment was terminated, Mr. Caponero was entitled to severance pursuant to the Employment Standards Code . He was also entitled to “reasonable notice” or payment in lieu, pursuant to the common law. He may have also had other potential claims, such as the human rights claim that he had commenced. Including the consideration given to Mr.

Caponero to address both his claims under the Employment Standards Code and any other claims he may have had at the time, did not create any ambiguity. [ 35 ] The Tribunal’s conclusions on the issue of the

interpretation of the settlement offer and release and the question of ambiguity were reasonable. The Tribunal’s analysis was conducted in accordance with the prevailing law on contractual

interpretation and it was based on consideration of the evidence, including the documents presented to Mr. Caponero. Notably, there was also an absence of any evidence from Mr. Caponero that he was confused by the release or about how the payments to him set out in the release were calculated: Caponero at para 37 . [ 36 ] Mr. Caponero has not established any basis upon which to disturb the Tribunal’s findings regarding the

interpretation of the termination package offered to and accepted by Mr. Caponero. C. Unconscionability [ 37 ] Mr. Caponero claims that the Tribunal misapprehended the law of unconscionability, and that misapprehension led it to make an unreasonable decision. According to Mr. Caponero, the Tribunal applied too high a threshold to the issue of unconscionability and improperly discounted the evidence that Mr.

Caponero continued to suffer adverse effects from the stroke that left him unable to appreciate the content and meaning of the termination documents, including the release, that were provided to him. [ 38 ] I am not persuaded that the Tribunal misapprehended the law of unconscionability. Both parties referred the Tribunal to the Supreme Court of Canada’s decision in Uber , a leading authority on unconscionability. Unconscionability is the equitable doctrine that may be invoked to set aside unfair agreements that result from an inequality in bargaining power: Uber at para 54.

At para 64 of the Uber decision, the Supreme Court of Canada endorsed the following statement of the law of unconscionability from the judgment in Douez v Facebook Inc. , 2017 SCC 33 : “...one must establish both inequality of bargaining power in the sense that one party is incapable of adequately protecting his or her interests and undue advantage of benefit secured as a result of that inequality by the stronger party.” [ 39 ] The Tribunal made the following findings of fact in support of the conclusion that Mr.

Caponero had the requisite ability to adequately protect his own interests, notwithstanding that he may have still been suffering from some effects related to his stroke: Mr. Caponero returned to work without restrictions on December 11, 2019: Caponero at para 54 . Mr. Caponero saw his physician on December 10, 2019. He was cleared to take a family vacation to the Philippines and the doctor did not note any ongoing cognitive impairments: Caponero at para 55 . Mr. Caponero was going to return to work on January 13, 2020, following his vacation.

No accommodations for any form of cognitive impairment were recommended at the time: Caponero at para 55 . Mr. Caponero did not see his doctor again until July 2021, after he had signed the release. Again, no concerns regarding impairments, restrictions or other serious stroke-related symptoms were noted: Caponero at para 56 . Mr. Caponero had been discharged from the stroke clinic on November 18, 2019, and no further follow up with the neurologist or the occupational therapist occurred after the discharge: Caponero at para 57 . [ 40 ] Mr.

Caponero argues that the Tribunal’s use of the modifier “serious” when referring to a lack of stroke related symptoms, means the Tribunal applied an unreasonably high standard in assessing whether the release was unconscionable. I disagree. Not every impairment or disability will necessarily give rise to a successful claim of unconscionability.

The impairment or disability must be of sufficient gravity that it renders a party incapable of adequately protecting his or her interests. [ 41 ] The threshold for a determination that an agreement is unconscionable is different, and lower than, the threshold for finding a party lacked capacity to enter an agreement. Mr. Caponero suggests that the Tribunal imposed a threshold more akin to an assessment of capacity rather than unconscionability. The reasons given by the Tribunal do not disclose any such error.

The Tribunal clearly differentiated between considerations of capacity and unconscionability in its discussion of Dickson v General Motors Canada Limited , 2013 HRTO 1347 , and the Tribunal concerned itself only with the threshold of unconscionability: Caponero at para 65-66 . The Tribunal’s reasoning on this point is clear, transparent, and intelligible and does not demonstrate any misapprehension of the law of unconscionability. [ 42 ] The Tribunal went through Mr. Caponero’s medical records in detail and heard evidence from him and his wife as well as from Mr.

Caponero’s treating physician and from the psychologist who prepared a neuro-psychological report regarding Mr. Caponero’s condition. After hearing and weighing all the evidence, the Tribunal concluded that Mr. Caponero had not established he was incapable of adequately protecting his own interests when the offer of severance was presented to him. As the basis for that finding is well documented and supported by the evidence, it is not unreasonable. [ 43 ] Mr. Caponero argued that his employer could have taken additional steps to assist him in the meeting, for example, by reading the documents to him.

Based on the evidence accepted by the Tribunal, Mr. Caponero appeared to have no difficulty reading the documents himself and he refused the suggestion that he go away and think about the offer and seek legal advice. Declining to read documents to an adult employee who is not demonstrating any difficulty reviewing the documents and who declines offers to seek assistance is not grounds for a finding of unconscionability.

[44] Much of Mr. Caponero’s argument regarding the lingering effects of his stroke at the time his employment was terminated isessentially urging me to revisit the evidence and come to a different conclusion regarding the ongoing effects of his stroke than theTribunal did. That is not the role of a judge on judicial review, and I decline to do so. [45] The Tribunal also found that the settlement agreed to by Mr. Caponero was not improvident and therefore the second branchof the unconscionability test had not been made out.

To be improvident, a bargain must either unduly advantage the stronger party orunduly disadvantage the weaker party: Uber at para 74. [46] Improvidence may be established where there is, for example, a significant departure in the price of goods and services in animpugned contract from usual market prices. The analysis is more complicated where the bargain involves the resolution of an as yetunproven claim; however, settlement or compromise of a claim is not, in and of itself evidence of an improvident bargain. [47] The Tribunal considered whether the settlement Mr.

Caponero agreed to was improvident in the context of the termination ofhis employment without cause. That context included an acknowledgement on the part of the employer of the statutory pay due to Mr.Caponero and the additional offer of 8 weeks’ salary in exchange for a release of all claims, including the human rights claim. [48] There was no evidence before the Tribunal that the settlement of Mr.

Caponero’s claim in exchange for payment of anadditional 8 weeks of salary over and above his statutory termination pay was so out of the range of expectations that it was improvident.Taking into account the speculative nature of Mr. Caponero’s human rights claim at the time, the value to Mr. Caponero of having thesettlement funds in August 2020 versus having a claim that may or may not pay at some indeterminate point in the future and taking intoaccount the fact that no further legal fees would have to be expended pursuing his claim, the settlement he accepted cannot be said to beimprovident.

It may have represented a compromise of his best-case scenario had he pursued his human rights claim and beensuccessful, but that does not mean it was improvident. The Tribunal’s findings in this regard were reasonable. [49] Mr. Caponero also argues that the release he signed was unconscionable because he was under economic duress when heaccepted the terms presented by his employer. Certainly, the doctrine of unconscionability may operate to release a contracting partyfrom an improvident contract if that party was particularly vulnerable due to “financial desperation”: Uber at para 70.

Again though, notevery claim of financial duress will be sufficient to relieve a contracting party from their bargain. [50] The Tribunal considered the definition of economic duress and the test for economic duress set out in the Ontario Court ofAppeal case of Taber v Paris Boutique & Bridal Inc., 2010 ONCA 157 at paras 8-9. For economic pressure to constitute economicduress, there must be pressure on the vulnerable party that the law regards as illegitimate and that illegitimate pressure must amount to acoercion of the will of the vulnerable party.

In other words, the circumstances must be such that the vulnerable party is put in a positionwhere there is no realistic alternative but to accept an offer from the party in a position of strength: Stott v Merit Investment Corp., (ON CA), 63 OR (2d) 545. [51] There is no question that the loss of Mr. Caponero’s employment put him into an economically vulnerable position. Hisvulnerability was exacerbated by the fact that he had been temporarily laid off from work on March 18, 2020. The temporary layoff wasa result of the global Covid 19 pandemic that was adversely impacting business. [52] Having noted Mr.

Caponero’s precarious economic situation when his employment was terminated, the Tribunal went on tofind that the evidence fell short of establishing economic duress to the point where Mr. Caponero had no choice but to accept thesettlement offer presented to him: Caponero at para 102. [53] Mr. Caponero’s employment was not terminated without providing him any notice. The termination package he was presentedwith clearly advised that he would be paid his statutory notice regardless of whether he signed the release or not.

Had he not signed therelease, he would have received his statutory notice which could have alleviated the immediate financial stress associated with thetermination for at least long enough for him to go away and obtain some advice. [54] Mr. Caponero’s employer did not pressure him to accept the settlement offer. On the contrary, the Tribunal found that Mr.Caponero was encouraged to take his time to consider the offer and obtain legal advice. The offer was presented to Mr. Caponero onMonday August 31, 2020, and it was open for acceptance until the end of the day on Wednesday September 2, 2020.

There was nourgency for Mr. Caponero to accept the offer at the time he was informed of the termination of his employment. This was not a situationwhere Mr. Caponero had to accept the settlement offer and sign the release or receive nothing. [55] The Tribunal’s decision dismissing Mr. Caponero’s claim of economic duress is therefore reasonable. It is based on theapplication of the proper legal test for economic duress and the reasons for the conclusion reached are transparent and cogent and do notdemonstrate any fatal flaws in reasoning. D.

Undue Influence [56] In order to succeed in setting aside the release on the basis of undue influence, Mr. Caponero must establish that he wasvictimized by improper conduct on the part of his employer to the extent that his free will in signing the release was overwhelmed: Copev Hill, 2005 ABQB 625 at paras 278 and 279. [57] In his written submissions, Mr. Caponero argued that “In light of the factual matrix, it was unreasonable to conclude that theelements of the undue influence test were not met.” Again, Mr.

Caponero appears to be inviting this court to re-evaluate the evidence thatwas adduced before the Tribunal and come to a different conclusion than that which the Tribunal decided. As I have previously stated inthis decision, that is not the role of a court on judicial review, and I will not engage in a re-evaluation or re-weighing of the evidence. Ihave to consider whether the Tribunal’s decision was reasonable. I have done that and I am satisfied that it was. [58] Mr. Caponero’s argument in relation to undue influence before the Tribunal was focussed on allegations of a malicious

course of treatment by his employer and a misleading response to an email about the August 31, 2020 meeting. Mr. Caponero argued that his employer failed to accommodate his disability. Furthermore, when he was summoned to the meeting of August 31, 2020, he inquired whether he had anything to worry about and he was assured he did not.

The Tribunal concluded neither of these incidents, or both of them together, constituted the kind of harsh or bad faith conduct that could support a finding of undue influence. [ 59 ] With respect to the allegations regarding failure to accommodate, the Tribunal noted the undisputed evidence that after Mr. Caponero returned to work on January 13, 2020, he provided no additional medical information to his employer regarding any ongoing disability or need for accommodation and neither did he request any accommodation after December 11, 2019. In light of this uncontradicted evidence, the dismissal of Mr.

Caponero’s claim that he was treated maliciously and unfairly by an employer who refused to accommodate him was entirely reasonable. [ 60 ] It is also uncontroverted then when Mr. Caponero inquired whether he had anything to worry about when he was summoned to the meeting of August 31, 2020, he was assured that he did not. Mr. Caponero characterizes this reassurance as a misleading lie designed to trick him in to a false sense of security. The Tribunal held the evidence was insufficient to establish that the reassurance provided to Mr.

Caponero was made in bad faith or was meant to mislead and take advantage of Mr. Caponero: Caponero at para 112 . [ 61 ] None of the hallmarks of an unreasonable decision are present in relation to the Tribunal’s conclusion on the issue of undue influence. [ 62 ] It would have been highly unusual and highly likely criticized had Mr. Caponero’s employer informed him that his employment was being terminated by email in response to his inquiry. It is difficult to see then how not informing him of his termination by email could be

an act of malice or bad faith. [ 63 ] Prior to the meeting of August 31, 2020, the employer had prepared a severance package for Mr. Caponero that included his statutory pay and an offer for additional severance in exchange for a release. Undoubtedly, in their view they were treating Mr. Caponero fairly under very difficult circumstances (the Covid 19 pandemic that was impacting their business) and therefore they advised him he had nothing to worry about.

While with the benefit of hindsight it may have been advisable for the employer to provide some additional information about the purpose of the meeting, that failure does not amount to the kind of victimization that would overwhelm Mr. Caponero’s free will and amount to undue influence. This is particularly so given that Mr. Caponero was not pressured into signing anything at the meeting of August 31, 2020 and was, in fact, encouraged to take the package away and think about it before signing.

Summary and Conclusion [ 64 ] A wholistic review of the Tribunal’s reasons for decision reveals a thorough, detailed, and clear thought process supporting the Tribunal’s conclusions. There are no fatal flaws in the logic and the chain of reasoning throughout is rational and evidence based.

Throughout the decision, the Tribunal instructed itself appropriately on the applicable law and stayed within existing legal and factual constraints in arriving at its conclusions. [ 65 ] The Tribunal properly identified the competing interests of certainty and finality in contracting versus fairness to a vulnerable contracting party. The Tribunal weighed the evidence before it in light of these competing interests and concluded that there was nothing so unfair in the treatment of Mr.

Caponero that would displace the certainty and finality provided by the contract which he entered into. [ 66 ] Given that the Tribunal’s decision is rational, coherent and logical and that it was rendered in accordance with the existing factual and legal constraints bearing on the issues, there is no basis for this court to interfere with the decision. It would be improper for this court to engage in a reassessment and reweighing of the competing interests. [ 67 ] Given that the Tribunal’s decision is reasonable, the application for judicial review is dismissed. Heard on the 21 st day of November 2023.

Dated at the City of Calgary, Alberta this 2 nd day of January 2024. R.W. Armstrong J.C.K.B.A. Appearances: Sophie Purnell Purnell Employment Law for the Applicant

Regan E. Dahl Craig Law LLP for the Respondent Kaizen Auto Group Ltd.