HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Gilda Bazaes
Applicant
-and-
West Janitorial Inc. and Jeffrey Clarke
Respondents
DECISION
Adjudicator: Alison Renton
Indexed as: Bazaes v. West Janitorial
APPEARANCES
Gilda Bazaes, Applicant ) Mary Ellen McIntrye, Counsel
West Janitorial Services and )
Jeffrey Clarke, Respondents ) Paul Cahill, Counsel
1The applicant filed an Application under section 34 of the Human Rights Code, R.S.O. 1990, c.H.19 as amended (the “Code”), on February 18, 2010 alleging discrimination in employment on the basis of disability.
2The Notice of Application was served on the respondents on April 8, 2010, directing the respondents to file a Response no later than 35 days from April 8, 2010. No Response was received.
3On May 20, 2010, counsel for the applicant filed a Request to Withdraw (Form 9) against the respondents on behalf of the applicant. On June 3, 2010, counsel for the applicant advised the Tribunal that the Request to Withdraw was filed on the understanding that the matter had been settled, however, since the respondents “failed to provide the cheque in the amount agreed upon to settle this matter despite phone calls and a letter”, the applicant was seeking to withdraw the Form 9 and proceed with the matter. On June 21, 2010, the Tribunal issued a second Notice of Application and directed the respondents to file their Response no later than 35 days from June 21, 2010.
4On July 20, 2010, the respondents filed a Form 2 Response, including a Request for Early Dismissal (without a full Response). The respondents request early dismissal of the Application on the basis that the applicant signed a Full and Final Release settling the Application. The respondents indicate that payment was issued by way of cheque and mailed to the applicant at the end of May; however, the applicant returned the cheque on June 11, 2010 on the basis that the payment was not received in a timely manner. The respondents assert that the settlement agreement did not specify a deadline by which payment was required to be made and, as such, the applicant should not allowed to proceed with the Application.
5The applicant filed a Reply providing further details of the chronology with respect to the parties’ settlement discussions and copies of supporting documentation.
6In an Interim Decision, 2010 HRTO 2006, the Tribunal ordered that a half day in-person hearing be scheduled to address the preliminary matter of whether the parties reached a settlement of the Application and whether the settlement is binding on the parties in accordance with section 45.9(1) of the Code.
7A hearing was held on November 26, 2010.
Background
8The facts giving rise to this hearing are not seriously disputed between the parties. Instead, the parties disagree on whether there has been a settlement and whether the settlement is void. Accordingly, I will set out undisputed facts and then note the parties’ submissions on the facts.
9After filing her Application, the applicant, through her counsel, entered into settlement discussions with the personal respondent who is the general manager and CEO of the corporate respondent. By letter dated April 13, 2010, the personal respondent made a without prejudice settlement offer which included a monetary payment to the applicant in exchange for an executed release. By letter dated April 26, 2010, the applicant’s counsel made a counter offer on the monetary amount and by letter dated April 26, 2010, the personal respondent made a further counter offer on the monetary amount noting the applicant would be required to withdraw her Application.
10By letter dated April 27, 2010, the applicant’s counsel wrote to the personal respondent advising that the applicant accepted the monetary amount that had been offered and requested that a release be forwarded for signature.
11A release was sent to the applicant’s counsel by the personal respondent along with the comments:
Upon [c]ompletion of this release I would trust your office will withdraw the pending claim…Once the termination of the [Application] has been notified and confirmed by WJS [the corporate respondent], WJS will issue final payment as per the terms of our Release dated April 27, 2010. Payment will be sent to [the applicant’s counsel].
12By letter dated April 29, 2010, the applicant’s counsel wrote to the personal respondent stating that the applicant refused to sign the release as drafted. The applicant’s counsel stated the applicant was prepared to sign a release that is signed by “both you and her which states neither party will proceed against the other for anything arising out of employment”. A revised release was prepared and sent to the applicant’s counsel.
13By letter dated May 7, 2010, the applicant’s counsel wrote to the personal respondent stating,
Please find enclosed 2 copies of the signed Release.
Please sign these releases and fax me a copy of the signed release. Please also courier me one copy of the signed release together with your cheque in the amount of $1200.
Upon receipt of your fax of the signed release I will withdraw the Human Rights Application and the Claim with the Ministry of Labour.
14The personal respondent sent a fax dated May 18, 2010, attaching the release now signed on behalf of the corporate respondent and a copy of a cheque dated June 1, 2010 for $1200. On the fax cover sheet, it is written, “The check [sic] is in the mail. Pls withdraw the pending claim as discussed & Agreed”.
15The release, which was signed by the applicant and West Janitorial Services, West Janitorial Inc. states in part:
I, Gilda Bazaes (Claimant), IN CONSIDERATION of the payment to me in the sum of $1200.00 all-inclusive, RELEASE and FOREVER DISCHARGE, West Janitorial Services, West Janitorial Inc. (hereinafter also known as the “Releasee”) from any and all causes of action, claims and demands, which have been or may hereafter be advanced by me or on my behalf, including any and all claims for payments, indemnification or damages as a result of my employment with the Releasee which occurrence was the subject matter of a complaint(s) to The Human Rights Tribunal of Ontario re: Tribunal File No: 2010-04878-I and any complaint to The Labour Relations Board. (Bold in original)
16On May 18, 2010, the applicant’s counsel sent a letter to the personal respondent enclosing, amongst other things, a Request to Withdraw an Application (Form 9) against both respondents before the Tribunal.
17On May 28, 2010, the applicant’s counsel wrote to the personal respondent stating:
I have left two messages for you. You have not returned my calls.
Last week you advised the [sic] that “the cheque is in the mail”. Clearly this is untrue.
I can only assume that you are acting in bad faith.
If the cheque is not received in our office by Wednesday, June 2nd, 2010 I will take whatever action is necessary to proceed with these claims.
18On June 3, 2010, the applicant’s counsel wrote to the Tribunal, copying the personal respondent, stating:
The matter had been settled. Unfortunately Mr. Clarke has failed to provide the cheque in the amount agreed upon to settle this matter despite phone calls and a letter. I am therefore asking to withdraw the Form 9 – Request to Withdraw so the matter may be adjudicated.
19The applicant’s counsel did not receive a response from the personal respondent. The applicant’s counsel sent a letter to the personal respondent dated June 11, 2010, stating:
Please find enclosed your cheque.
When the cheque was not provided by June 1st, 2010 Ms. Bazaes considered the settlement void. She has instructed me to proceed with the actions.
The Applicant’s Submissions
20The applicant submits, through her counsel, that by May 18, 2010 things started to go wrong and there was no meeting of the minds between the parties. While the applicant received a faxed copy of a release signed by the corporate respondent, which initiated the contact with the Tribunal to request withdrawal of the Application, an original release signed by the respondents was not received by the applicant’s counsel despite her requests. Further it became apparent that the respondents’ conduct was made in bad faith because the cheque was not “in the mail” as represented on the respondents’ May 18 fax, the personal respondent did not respond to the applicant’s counsel’s messages and letters, and the settlement cheque was not received by the applicant’s counsel by the imposed June 1 deadline.
21When the cheque was eventually received on June 11, no original release signed by the respondent accompanied it, and the cheque was returned to the personal respondent. The applicant’s counsel submits that a faxed copy of the signed release is not legally enforceable in the same way that a faxed copy of a cheque is not enforceable. The applicant’s counsel did not provide any caselaw in support of this position.
22The applicant’s counsel submits that the respondents’ conduct is an abuse of process, attacks the integrity of the Tribunal’s process, and the settlement is void. The applicant requests that her Application proceed to a hearing.
23In response to questions from the Tribunal as to why the applicant did not file an Application for Contravention of Settlement, Form 18, the applicant’s counsel indicated that at the time she thought it pertained only to settlements that had been mediated at the Tribunal.
The Respondents’ Submissions
24The respondents submit that there was a settlement, in writing, and signed by both parties, and that the Application ought not proceed. The respondents made an offer which was unconditionally accepted by the applicant through her counsel’s April 27, 2010 letter and which stated “Ms. Bazaes has decided to accept your offer of $1200. Please forward the release to me for signing”. A mutual release was negotiated later.
25There is no term in the settlement setting out that the payment had to be made within a certain period of time and this was not a term that was negotiated between the parties. Since it was not a term negotiated between the parties, it cannot be used to set aside the timing of the agreement or unilaterally imposed to modify the agreement and then claim an alleged breach of settlement.
26By fax dated May 18, the respondents sent a signed release and a copy of a cheque dated June 1, 2010. It was clear that the cheque could not be cashed until at least June 1. The respondents do not agree that to be legally enforceable, there must be an original copy of a release, and submit that a faxed release is legally enforceable. The materials filed by the applicant suggest that the issue in June was not that she did not receive an original release, but rather the date that the cheque was received was after the date unilaterally imposed by the applicant’s counsel.
27The respondents’ conduct was not done in bad faith even if the May 28 fax indicated that the cheque was in the mail. That statement can refer to many things, including that it was being processed and mailed, and in any event, the cheque was sent to the applicant’s counsel within a short period of time.
28At the hearing and despite the direction contained in the Interim Decision that the parties were to file any material, including facts, caselaw or documents within 21 days of the Interim Decision, the respondents provided new caselaw upon which they intended to rely, addressing the issue of timing of payments in settlements. Over the objections of the applicant’s counsel, I allowed this caselaw, including an Ontario Court of Appeal decision, as it was relevant to the issue before me.
Analysis
29Section 45.9(1) of the Code provides:
If a settlement of an application made under section 34 or 45 is agreed to in writing and signed by the parties, the settlement is binding on the parties.
30In the circumstances of this Application, I find that there was a settlement. By letter dated April 27, 2010, the applicant’s counsel had accepted the respondents’ financial term and requested that a release be forwarded. The personal respondent forwarded a release and while initially there were some concerns about that release, by May 7 the parties had agreed on the language of the release and the applicant had signed and sent it to the personal respondent. The personal respondent signed and sent the release to the applicant’s counsel on May 18, following which the applicant’s counsel then filed the Request for Withdrawal before the Tribunal. In the circumstances of this Application, I find that there was a settlement, with an executed release which was intended to apply to both respondents.
31The applicant’s counsel did not provide the Tribunal with any legal authority that a faxed release is not legally binding. I note that section 15(4) the Statutory Powers Procedures Act, R.S.O. 1990. c. S.22 (“SPPA”), provides:
Where a tribunal is satisfied as to its authenticity, a copy of a document or other thing may be admitted as evidence at a hearing.
32While it may be that the applicant’s counsel wanted an original, signed release, as she stated in her May 7 correspondence, I find that after May 7 the only issue that she identified as being outstanding was payment of the monetary term. There was no further reference in the correspondence, apart from the Reply, about the requirement of an original, signed release. Further, given section 15(4) of the SPPA, I find that an original release is not required to upheld terms of settlement. Accordingly, the failure to provide an original signed release to the applicant’s counsel does not vitiate the settlement.
33The settlement did not mention the timing by which the financial term had to be paid. Instead the applicant’s counsel unilaterally set a deadline by which the payment had to be made. I note that counsel’s May 28 letter set a deadline of June 2, while her June 11 letter set a June 1 deadline. I accept that this deadline was imposed in frustration by applicant’s counsel as it appears that, after the May 18 fax by which the personal respondent sent the signed release and photocopy of a cheque dated June 1, 2010, the personal respondent failed to return counsel’s voicemail messages and correspondence. However, as there was no mention of timing of the payment, either by the respondent in making the offer or the applicant in accepting it, it was not a term of the parties’ agreement. See Douglas v. Magick Woods Limited, 2009 ONCA 404.
34The settlement cheque was received by the applicant’s counsel on or about June 11, 2010. I agree this was after the deadline imposed by counsel, but since the timing of the payment was not a term of settlement, I find that the applicant cannot consider the settlement to be void, or resile from the settlement, because she or her counsel received the payment after the unilaterally imposed deadline.
35Accordingly, in the circumstances of this Application, I find that there was a settlement which included a release and the applicant cannot resile from its terms or treat the settlement as being void and is bound by the terms of the release.
36Therefore, the Application is dismissed.
Dated at Toronto, this 13th day of December, 2010.
”signed by”________
Alison Renton
Vice-chair