Briggs v. Durham Regional Police Services, 2017 HRTO 1457

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Joseph Briggs

Applicant

-and-

Durham Regional Police Services and Christopher Delaney

Respondents

INTERIM DECISION

Adjudicator: Alison Renton Date: November 3, 2017 Citation: 2017 HRTO 1457 Indexed as: Briggs v. Durham Regional Police Services

APPEARANCES

Joseph Briggs, Applicant Shibil Siddiqi, Counsel

Durham Regional Police Service and Christopher Delaney, Respondents David Cowling, 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”), alleging discrimination on the basis of race, colour, ethnic origin and reprisal as against the respondents (“Application #1”). In Briggs v. Durham Regional Police Services, 2015 HRTO 1712 (the "Decision”), I upheld the Application. I ordered monetary compensation and remained seized with respect to a non-monetary remedy. The issue of the non-monetary remedy remains outstanding.

2The parties are aware that I have left the Tribunal and have returned to the private practice of law. The parties do not object to me continuing to hear this Application.

March 2015 Settlement of Second Application

3The applicant filed another Application against the organizational respondent and two different personal respondents (“Application #2”). Application #2 was settled by Minutes of Settlement entered into in March 2015 (the "Minutes”) while Application #1 was under reserve and before the Decision was issued.

4The respondents in Application #1 submit that the Minutes settled Application #2 and Application #1. They submit that the release language in the Minutes settled Application #1 and it was an abuse of process for the Decision to be issued after the Minutes were entered into.

5The applicant submits that the Minutes only resolved Application #2 and not Application #1. He submits that the Decision was properly issued.

6On October 18, 2017, I heard submissions from the parties about whether the Minutes settled Application #1. In deciding that question I was asked to consider whether the Minutes are ambiguous and, if so, whether extrinsic evidence should be introduced to assist in their interpretation.

7The respondents submit that the Minutes and the release language are not ambiguous and no extrinsic evidence should be admitted. The applicant submits that the Minutes are not ambiguous about Application #2, but they are for Application #1, and that he ought to be able to introduce post-Minutes evidence in support of his position that the Minutes did not settle Application #1 and also to address the respondents’ abuse of process position.

8Accordingly, if I find that the Minutes and the release language are ambiguous, I may consider the extrinsic evidence. In the event that I find that there is no ambiguity, the extrinsic evidence will not be admitted and the parties will make submissions about the alleged abuse of process.

DECISION

9For the reasons set out below, I find that the language of the Minutes and the release is not ambiguous. Further, I find that Application #1 is covered by the release language.

agreed statement of facts

10The parties agree with the following statement of facts.

1. In April 2012, Mr. Briggs filed an application at the Human Rights Tribunal of Ontario (HRTO) against the Durham Regional Police Services Board (DRPSB) and Constable Christopher Delaney (HRTO File No. 2012-11340-I) alleging discrimination with respect to police services on the basis of race and reprisal (Briggs Application #1-2012). In October 2012, Mr. Briggs was arrested and detained at an Oshawa police station by the DRPSB. Arising out of these October 2012 events Mr. Briggs filed both an Ontario Independent Police Review Directorate (OIPRD) complaint (in December 2012) and a new human rights application at the HRTO (in October 2013).

2. On October, 3, 2013, the hearing of Briggs Application #1-2012 commenced and was heard by the HRTO over five (5) days spanning eleven (11) months from October 3, 2013 to June 18, 2014. [Mindy Noble] represented Mr. Briggs at this hearing, and the Respondents were represented by Mr. David Cowling. The parties agreed to have the HRT decide on liability and the monetary remedies. The issue of the non-monetary remedies was bifurcated and new hearing dates were to be scheduled, if necessary, following the release of the HRTO decision.

3. On October 8, 2013, Mr. Briggs filed his second application at the HRTO (HRTO File No: 2013-1567-I) against the DRPSB and Police Constables Paul Grigoriou and Joseph Kehoe (Briggs Application #2-2013). Mr. Briggs alleged that the arrest and the unlawful force and assault he was subjected to at the police station were reprisal under the Human Rights Code for having filed Briggs Application #1-2012 against the DRPSB and Constable Delaney. Attached as Exhibit “1” is a true copy of the Briggs Application #2-2013, dated October 8, 2013 and Mr. Briggs’ Reply (Form 3), dated April 3, 2014.

4. In the meantime, the hearing on Briggs Application #1-2012 continued throughout 2014 with closing submissions made by the parties on June 18, 2014. During the hearing, the parties agreed to bifurcate the discrete issue of the non-monetary remedies, which would be heard separately and following the hearing of the issues of liability and the monetary remedies.

5. On March 2, 2015, the parties attended at the hearing of Briggs Application #2-2013 at the HRTO. The parties agreed to attempt to settle the matter by way of mediation-adjudication. In accordance with the Tribunal’s Rules, the parties signed a Mediation-Adjudication Agreement prior to engaging in mediation. The Mediation-Adjudication Agreement was only signed with respect to Briggs Application #2-2013. A settlement was reached with the DRPSB (MOS – Briggs Application #2-2013). As a term of the settlement, Mr. Briggs explicitly withdrew his application against Constables Grigoriou and Kehoe. A Confidentiality Clause was also included as part of the settlement.

6. The Mediation-Adjudication agreement is dated March 2, 2015.

11Over the objection of the respondents I ruled that I would consider the Form 25 filed in Application #2 as it was referenced in paragraph 10 of the Minutes. I stated that the parties could make submissions about the Form 25 and whether or not it should be considered, as well as what weight, if any, it should be assigned when they made their submissions.

the minutes of settlement

12The Minutes contain the following paragraphs which are relevant to the issue of whether or not they contain an ambiguity:

1. The Durham Regional Police Services Board (the “Board”) shall pay the Applicant [amount] as general damages under the Human Rights Code for pain and suffering without deduction. A cheque in this amount shall be delivered to ... within two weeks of the date that this settlement is approved by the Durham Regional Police Services Board.

2. The Durham Regional Police Services Board shall pay to the Applicant an additional amount of [amount] as general damages under the Human Rights Code for pain and suffering on a date that is one year and two weeks from the date of this settlement, but only if during the period of one year from the date of this settlement: the applicant has not filed any complaint or commenced any litigation against the Durham Regional Police Service, its Board or its officers or employee; and if the applicant has not posted any videos or negative commentary on the internet regarding the Durham Regional Police Service, its Board or its officers or employees; and if the applicant signs a Full and Final Release in the form set out in para. 7 below releasing the Durham Regional Police Service, its Board and its officers and employees for any and all claims up to March 1, 2016. The payment will only be made upon receipt of this Release. …

3. The Applicant hereby releases the Respondent Durham Regional Police Services, the Durham Regional Police Services Board, and its current and former officers, directors, employees and agent, including for greater certainty the Personal Respondents, from any and all applications, claims, demands, complaints, or actions of any kind up to the date of this settlement agreement or arising out of or in any way related to this Application, including but not limited to claims under the common law, the Ontario Human Rights Code, and the Police Services Act. The Applicant will not make any application, complaint or claim or bring any action against the Respondents and these Minutes of Settlement may be raised as a complete bar to any such application, claim, complaint or action.

10.The parties agree to file a completed Form 25 upon the approval of these minutes of settlement by the Durham Regional Police Services Board.

The parties’ submissions

The Respondents’ Submissions

13The respondents submit that there was a settlement on March 2, 2015 of both Application #1 and Application #2 and that it would be an abuse of process for the Decision in Application #1 to be issued.

14The date of settlement was March 2, 2015, when the applicant signed the Minutes. That is the date that the parties agreed to resolve Application #1 and Application #2 and all other issues, to date, between the parties. The parties’ intention is clear, the respondents submit, by the initial payment to the applicant up to the date of the Minutes and then an additional payment in March 2016 if the applicant did not commence any other legal proceeding, be it civil or another application, up to that point.

15That the respondents’ Board approved the terms on March 24, 2015, as required by another term of the Minutes, does not change the fact that the settlement was effective March 2, 2015. If the applicant had tried to resile from the settlement before the Board approved it, this would not mean that there was no settlement.

16The Minutes resolved issues in addition to Application #2. This includes all issues between them up to the date of the Minutes, as well as all issues that would occur up to March 2016. This is reflected by the fact that there were two payments: one to be paid after the Minutes were entered into, and one to be paid in March 2016 if the applicant did not commence any other complaint, including an application or civil proceeding.

17The parties agreed to release language in the Minutes. The release, the respondents submit, contains no limitations and applies to any and all applications, claims, of any kind up to the date of this settlement agreement pertaining to any type of application or claim. Everything is released, including Application #1, and no exceptions are set out in the Minutes. There is nothing to suggest that any litigation is to be carved out of the release and from the factual matrix everyone was aware that Application #1 was outstanding and was still under reserve. In no way does the release language carve out Application #1 or, if there was any court litigation, it would have been caught by the release language as well. The applicant releases everything including current and former employees and officers and the release language is not ambiguous.

18The last sentence of the release language in paragraph 7 relates to any action that would be brought against the respondents and doing so would be a complete bar against it proceeding. The respondents submit that there is no possibility of ambiguity.

19The respondents submit that the release was applicable to not just everything to the date of the Minutes, but also to March 2016. If the applicant wanted to receive the payment the following year, as detailed in the Minutes, he had to agree with the release language in para. 7, in effect a second release.

20The respondents submit that the courts have recognized that there is a difference in interpreting the language found in contracts versus the language found in settlements, but there is no difference in how evidence of a factual matrix is considered. While the surrounding circumstances will be considered in interpreting the terms of a contract, the respondents submit that the courts have recognized that they must never be allowed to overwhelm the words of the agreement. The respondents submit that the language of the Minutes is clear and there is nothing in the evidentiary record to override the clear language.

21The respondents submit that the Tribunal cannot consider post-settlement evidence, which can be self-serving, unless it first finds that there is an ambiguity. The surrounding facts leading up to the Minutes are already before the Tribunal and are sufficient, they submit, for the Tribunal to determine whether or not there is an ambiguity.

22The surrounding circumstances are different from parol evidence, which, they submit the Form 25 would be, and that the Form 25 and other evidence cannot be considered unless the Tribunal finds that the language is ambiguous.

23The respondents submit that the Tribunal cannot look to any post-settlement evidence unless it finds ambiguity in the Minutes, and there is danger in looking at such evidence as it can be self-serving to the party who wants it to be considered and it is unreliable, unless it showed the intention of the parties at the time of entering into the agreement. Post-settlement language cannot be taken into consideration unless an ambiguity in the language is found. It is subject to use their conduct to retroactively support their position and subject to manipulation. There are a myriad of explanations for what occurred afterwards and it is dangerous to rely upon those facts to assert that one of the interpretations should support a position, including subjective intention of the parties.

24The respondents submit that the release language in paragraph 7 is broad and captures both the known and unknown claims as of the date of the settlement. Of course Application #1 was known at the time of entering into the Minutes. It is a broadly worded release, up to the date of the Minutes, and accordingly it did not have to set out exactly everything that was covered by the release language. Instead, had the applicant not wanted Application #1 to be included as part of the minutes, it was his obligation to specifically exclude it from the release. As that was not done, Application #1 is covered by the release language. The failure to specifically refer to Application #1 does not create an ambiguity in the application of paragraph 7.

25The respondents submit that they did not bargain for Application #1 to continue, notwithstanding that the Minutes were resolving Application #2. The release language, broadly drafted, demonstrates that the parties wanted to wipe the slate clean between them. It is clear and unambiguous. While it did not name the personal respondent in Application #1, he is covered by the release language pertaining to current and former officers and/or employees. Whatever was outstanding up to the time of the Minutes was resolved by the release language and the parties hoped to have another year where they were no disputes between them and, at such point, another payment would be made. The respondents paid the applicant to wipe the slate clean, and were to give another payment if nothing new happened. If the applicant wanted Application #1 to continue, it was his obligation to exclude it specifically from the release language in paragraph 7. Because he did not do this, Application #1 is caught by the release.

26Even if the applicant did not intend to resolve Application #1 by signing the release, the respondents submit that this does not matter. It is the language of the release of paragraph 7 which is significant, not his understanding.

27The respondents submit that the fact that the Minutes, in other paragraphs, refer to “application” or “matter” in the singular does not matter. The consideration of the matter that is being resolved, Application #2, is the resolution of all matters as set out in the release. Paragraph 2 would have no applicability as there is consideration to resolving everything up to the date of the Minutes. So it does not matter that paragraph 11 says it finally disposes of “this Application” not “Applications” or that it says “matter” not “matters”. The fact that the singular is used, rather than plural, does not matter, because the consideration to resolve Application #2, and the two payments, is the release language which requires everything up to the date of the settlement to be resolved.

The Applicant’s Submissions

28The applicant submits that the settlement date is March 24, 2015, the date that the respondents signed the Minutes and after the Board approved the terms of the settlement. At that point, the settlement crystallized as it was a condition precedent that the Board had to approve the settlement.

29It is significant that only one Form 25 has been filed. There is no evidence that a Form 25 was filed in Application #1. The absence of evidence does not permit the respondents to claim that there is a factual dispute about whether the Form 25 was filed for Application #2.

30The cases to which the respondents referred are not determinative of the issues before the Tribunal. The issues are unique in contrast to the court decisions provided by the respondents. This is not an unknown or future event, but about whether the release language addressed the situation where there was a decision under reserve by the Tribunal in Application #1. There are no reported decisions by the Tribunal about this issue, the applicant submits, and the fact pattern of the court decisions does not apply to this determination. One of the respondents’ decisions was about issue estoppel, which is not the situation before the Tribunal.

31The applicant submits that it was known to the parties at the time of the Minutes that the Tribunal’s decision in Application #1 was under reserve. This is part of the factual matrix and it requires a more in-depth look not just about the Minutes, but also about the release language and the case law. The subject matter of Application #1 was different from the subject matter of Application #2.

32Settlements are subject to the general law of contracts; they should be interpreted fairly and broadly and the intention of the parties is determined by looking at substance, not at form. There must be sufficient certainty to be enforced so you need to have that set out with sufficient certainty. Contracts cannot be looked at in a disjointed way; the courts are to search the entire contract. Words should be given their ordinary and general meaning, but if there are alternatives, the court should reject an interpretation or a literal meaning that would result in absurdity or unreasonableness. Where the contract is ambiguous, evidence of subsequent conduct may be admitted to determine the intent of the parties.

33The Tribunal needs to review the situation based upon objective intentions, not subjective intentions by the parties. If there is ambiguity, then the Tribunal can get into post-settlement facts.

34Further, the Minutes have to be considered with a contextual approach. The courts urge us not to read contracts or settlements in a piecemeal fashion or they would lead to absurd results. Evidence of subsequent conduct can be useful in resolving ambiguities and it may be helpful to show the meaning the parties gave to the words of their contract after its execution and it may support an inference surrounding their intentions at the time that they made their agreement. In particular, the court considers how both parties behaved and which is consistent with the interpretation of the particular facts and reduces danger, as well as the proximity of the timing to the settlement.

35The recitals that are at the beginning of the Minutes have significance when reviewing subsequent, broadly worded release language. They demonstrate what the release was targeting.

36The language of the release is important. Releases can pertain to claims that are unknown at the time of signing, or that cover everything pertaining to, for example, an accounting firm’s services, such as butterfly transactions which did not crystallize until sometime after the settlement was entered into. The subject matter of what is being released can be included in the release language.

37The Tribunal must determine what was in the contemplation of the parties at the time of the settlement. In some cases what is being released is set out specifically, such as unknown claims, or anything related to services for an accounting firm. The subject matter of what is being released can be specifically mentioned, and therefore the court can be satisfied that the release turned it minds to the type of dispute before the court. This can include language specific to claims not known at the time.

38The issue in this case, the applicant submits, is not litigation which arose after the Minutes were entered into, but what had occurred before the Minutes were entered into. In this case, the hearing in Application #1 had finished and the Decision was under reserve. This is different from the fact situations in the cases provided by the respondents. The release language in the Minutes is broad and general and does not reach the level of specificity which is required by the courts.

39There is no exclusionary language in the release, nor is there inclusionary language. This means the release cannot be looked at in isolation. The Minutes themselves do not refer to Application #1. The recitals are only about Application #2, as is the mediation-adjudication agreement that was signed. The parties to the Minutes are those in Application #2, and there is reference throughout the settlement to the singular, application, matter, rather than the plural. The Form 25 that was filed was only about Application #2. The only file number referenced on the Minutes is that of Application #2. There is no mention of the personal respondent in Application #1 and it is absurd that someone who is not a party to the Minutes would get a benefit of a release and settlement. The payment paragraphs do not mention Application #1 and there is nothing in the language to imply that Application #1 was mentioned or included. There is a withdrawal of the application against the personal respondents in Application #2, not Application #1, and there are references to police complaints and videos, but that is part of Application #2 and not Application #1. Paragraph 8 states that the parties may say that the matter, in the singular, has been resolved, again referring to Application #2.

40The applicant submits that it is clear what has been resolved – Application #2. Not that all matters have been resolved, but that Application #2 has been resolved. The representation to the Tribunal about what was settled, in the Form 25, is Application #2, not Application #1.

41The applicant submits that the Tribunal cannot get “bogged down” on the release itself and not look at other parts of the Minutes and other exclusionary language. It jumps out that the release is separate and apart from the rest of the agreement and if the settlement is read without paragraph 7, there is nothing about what is contemplated by the parties.

42The fact that there was a judgment under reserve means that the release language should be very clear. It is up to the party who wants the language to be interpreted in this manner, the respondents, to make sure the release language is clear.

43The reference to “any and all applications” does not refer to judgements, and it was a judgment under reserve, the applicant submits, which is not released in the release language found in paragraph 7.

44With respect to the last sentence of paragraph 7, which is disjunctive, it would be “mind boggling” to decide that everything has been released, when the Minutes only reference Application #2.

45When read as a whole, and harmoniously, which the applicant submits is the only logical way to read the Minutes, and not piecemeal, the parties were only contemplating the release of Application #2. The parties were both represented by counsel and in terms of the recitals and the wording in the Minutes, they are all in the singular, there is no reference to Application #1 or the judgement that was under reserve. The applicant submits that objectively this indicates the parties’ intentions on March 2, 2015, that they were only settling Application #2.

46Further, the applicant submits, the release was not drafted with sufficient clarity and if it is to be determinative of this issue, then it needs to be clear as to what has been bargained for.

47The Minutes are unambiguous and are clear that Application #2 has been resolved; however, there is no reference to Application #1, despite in the factual matrix that the parties knew that the judgment was under reserve, and given the Form 25 has only the file number of Application #2, this is unambiguous. The relief that the respondents are seeking should be denied.

48The applicant submits that if the Tribunal does find ambiguity in interpreting the Minutes, because Application #1 was not specifically excluded and was not included and there is no reference to the judgment in the Minutes, then further evidence is required about this question. The applicant submits that he is prepared to present evidence about what was clearly bargained for.

49The applicant submits that 4 or 5 words read out of context can overwhelm the objective intention of the parties when the agreement is read as a whole.

50In the alternative, the applicant submits, if the release is found to be ambiguous because Application #1 is not specifically excluded or the judgment is not mentioned, then the Tribunal should consider post-settlement evidence.

The Respondents’ Reply

51The respondents disagree that Application #1 and Application #2 are completely unrelated applications. They submit that Application #2 arose from an alleged reprisal as a result of Application #1, as set out in the agreed statement of facts.

52If paragraph 7 were removed from the Minutes, the respondents would agree that the only application resolved would be Application #2. However, that is not the situation before the Tribunal. Paragraph 7 is part of the settlement and it applies to Application #1.

53The fact that paragraph 7 does not use the word “judgment” or “decision” does not change the submissions that they made earlier, the respondents submit. The Federal Court decision to which they referred had the same situation. There is no distinction to be made between parties settling matters that are under reserve and those that remain outstanding. What is clear in paragraph 7 is that any and all applications, including those outstanding, are resolved. The release refers to the Code and that would include Application #1.

54The respondents submit that, in contrast to the older cases relied on by the applicant, the court decisions to which they have referred were in issued in the past couple of years and reflect the current legal principles.

analysis

55In the circumstances of this case, it would have been helpful for the parties to specifically reference Application #1 in the Minutes either by stating that it was not subject to the release or that it was. However, they did not, and the Tribunal must determine whether Application #1 was settled by the release language contained within the Minutes.

56Further, I need to determine whether or not there is an ambiguity in the language of the Minutes, and specifically the release language, to determine whether or not extrinsic evidence, that the applicant wants to rely on, is admissible.

57It is helpful to set out some legal principles that apply to the interpretation of settlements, and release language in particular. They are:

• The overriding concern in the interpretation of contracts is to determine the intent of the parties and the scope of their understanding. Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53 at para. 47 (“Sattva”);
• The contract must be read as a whole, giving the words used their ordinary and grammatical meaning, consistent with the surrounding circumstances known to the parties at the time of formation of the contract. Sattva, above, at para. 47;
• Patent ambiguity means that the language is capable of more than one meaning obvious on the face of the document. Simpson v. Canada (Attorney General), 2011 ONSC 5637 at para. 69 (“Simpson”);
• Latent ambiguity means that interpretative problems which arise when seeking to interpret the contract for a particular circumstance more than one meaning is possible. Simpson, above, at para. 70;
• Surrounding circumstances can be considered when interpreting the terms of a contract, but they must never be allowed to overwhelm the words of that agreement. Sattva, above, at para. 57;
• Surrounding circumstances (or factual matrix) should consist only of objective evidence of the background facts at the time of the execution of the contract, and is knowledge that was or reasonably ought to have been within the knowledge of both parties at or before the date of contracting. Sattva, above, at para. 58, Shewchuk v. Blackmont Capital Inc. 2016 ONCA 912 at para. 41 (“Shewchuk”);
• The parol evidence rule does not apply to preclude evidence of the surrounding circumstances. Sattva, above, at para. 60;
• The test is what a reasonable person would have known if placed in the situation of the parties. Arcand v. Abiwyn Co-operative Inc., 2010 FC 529, upheld on appeal 2011 FCA 170 (“Arcand”);
• Evidence of one party’s subjective intention has no independent place in this determination. Eli Lilly & Co. v. Novopharm Ltd., 1998 CanLII 791 (SCC), [1998] 2 S.C.R. 129 at para. 54);
• Minutes of settlement must be considered as a whole. Abundance Marketing Inc. v. Integrity Marketing Inc., 2002 CanLII 23605 at para. 23, and Simpson, above, at para. 64;
• Evidence of subsequent conduct:
  • Must be distinguished from the factual matrix. Shewchuk, above, at para. 41;
  • can be useful in resolving ambiguities. It may help to show the meaning the parties gave to the words of their contract after its execution, and this may support an inference concerning their intentions at the time they made their agreement. Shewchuk, above, at para. 48;
  • where there is ambiguity, it can be admitted to determine the intent of the parties. Simpson, above, at para. 68.

58In addition, legal principles specific to releases were set out in Court of Appeal's recent decision in Biancaniello v. DMCT LLP, 2017 ONCA 386. At paragraph 42, the Court held:

• One looks first to the language of a release to find its meaning;
• Parties may use language that releases every claim that arises, including unknown claims. However, courts will require clear language to infer that a party intended to release claims of which it was unaware;
• General language of a release will be limited to the thing or thing that were specifically in the contemplation of the parties when the release was given;
• When a release is given as part of the settlement of a claim, the parties want to wipe the slate clean between them;
• One can look at the circumstances surrounding the giving of the release to determine what was specially [sic] in the contemplation of the parties.

59Applying these legal principles to the situation before me, and particularly the more recent appellate and Supreme Court of Canada jurisprudence, I make the following conclusions.

60The parties entered into Minutes, containing a settlement, in March 2015. For the purposes of this Interim Decision, it does not matter whether the settlement was effective March 2, 2015, the date the applicant signed the Minutes, or March 24, 2015, when the organizational respondent signed them.

61At the time of signing the Minutes, and as part of the factual matrix or surrounding circumstances, the parties were aware that the hearing in Application #1 had ended and the Tribunal’s decision was still under reserve.

62I agree with the respondents’ submissions that I cannot consider the Form 25 filed in Application #2 to determine whether or not the Minutes are ambiguous. It is post-settlement evidence and not part of the factual matrix or surrounding circumstances at the time the parties entered into the settlement. See Shewchuck, above, at paras. 41 and 48.

63When I review the Minutes as a whole, it is clear that Application #2 was resolved. The style of cause and preamble all pertain to Application #2. Paragraph 6 (withdrawing Application #2 against the personal respondents in that Application) and paragraph 11 (request that the Tribunal finally dispose of Application #2 and waiving right to make oral submissions) also support the finding that Application #2 was resolved.

64It is also clear that the Minutes use the singular, rather than the plural. This is found in the preamble, paragraphs 6, 7, and 11. The Minutes never refer to Application #1.

65However, in reviewing the Minutes as a whole, I agree with the respondents that the Minutes resolve more than Application #2.

66Paragraph 2 provides for a second payment to the applicant in March 2016, a year after the settlement in Application #2 was reached, if the applicant agreed to various conditions, including the signing of a “full and final release in the form set out in paragraph 7 below releasing the Durham Regional Police Service, its Board and its officers and employees for any and all claims up to March 1, 2016”. The “any and all” language is found again in paragraph 7. Accordingly, the Minutes resolve Application #2 and any claims up to March 2016.

67The Minutes also resolve Application #1 as the release language in paragraph 7 is applicable to Application #1 for the reasons set out below.

68I accept the respondents’ submissions that the release language was “slate wiping”, in that from the wording of the Minutes themselves it is clear that the parties intended to resolve everything up to the date of the Minutes, and in fact up to March 2016. See Biancaniello, above, at para. 52.

69Application #1 is covered by the “any and all applications” language found in paragraph 7.

70The release says that the applicant releases “the Respondent Durham Regional Police Service, the Durham Regional Police Services Board, and its current and former officers, directors, employees and agents” (for the purposes of this Interim Decision, they will collectively be called “the releasees”). The personal respondent in Application #1 comes within the class of current or former officer or employee. He is not specifically excluded from the Release. The fact that he did not sign the Minutes does not deprive him of the benefit of the Release.

71Even though the release language does not have a heading, or is set out in an appendix or schedule, it is clearly substantive release language. In fact, paragraph 2 refers to it as “Full and Final Release in the form set out in paragraph 7 below (….)”.

72I agree with the applicant that, unlike Biancaniello, the first part of the release language does not identify the subject matter of what was being released. However, the language in the release says, “Any and all applications…. up to the date of this settlement agreement” and I find that this includes Application #1 as it was an outstanding application at the time the Minutes were entered into in March 2015. The factual matrix or surrounding circumstances at the time the Minutes were entered into, and which are part of the agreed statement of facts, included the parties being aware that the hearing in Application #1 had concluded and there was a Tribunal decision on reserve. Despite being on reserve, Application #1 was still an active application. It was also a claim under the Code, as is referenced later in the paragraph.

73I accept that the release language in paragraph 7 is broadly worded. I also accept that Application #1 is included unless specifically excluded. In this regard, I rely on Biancaniello, above, where the Court of Appeal states at para. 49:

Although the release does not specifically say that it includes unknown claims, it includes all claims arising from the services provided by the accountants up to the end of December 2007. By including all claims, but limiting the description of the claims that are intended to be covered both by subject matter and by time frame, there is no need to further specify the types of claims that are included. The language is specific and fully understandable: it includes all claims related to professional services provided during the specified time frame. There is no need, for example, to say, “including tort claims, negligence claims, breach of contract claims, cost claims”, etc. They are all included unless specifically excluded. The same analysis applies to unknown claims – by specifying the claims contemplated by the parties and describing them inclusively, all claims in the defined category are included unless specifically excluded. Had it said “including known and unknown claims”, that would just have been another way of saying that the release includes all claims. (Emphasis added)

74I also rely on Arcand, above, where the Federal Court determined that release language entered into between the parties barred a future award of damages from the Privacy Commissioner of Canada issued three years after the settlement. At para. 56, the Court observed:

The problem is that there is no objective evidence of this belief. If parties A and B agree to enter into a settlement and a full and final release in regards to a long standing and multifaceted dispute and party A wishes to keep open the possibility of claiming damages in a different type of action but in relation to the same basic facts, he or she ought to specifically exclude that cause of action from the settlement and release. If party A chooses not to, party B is entitled to rest assured that the dispute has been resolved in full.

75In the case before me, there is no objective evidence that the applicant wished to keep open the possibility of continuing with Application #1. The parties knew when the release language was signed that Application #1 remained outstanding, but the applicant did not seek to exclude it from the release language. The fact that he did not supports my finding that Application #1 is subject to the release language. See also Kerzner v. American Iron & Metal Company Inc., 2017 ONSC 4352 at para. 111 (“Kerzner”).

76The fact that the applicant may not have intended to resolve Application #1 does not address whether or not there is ambiguity in the language of the release. He was, like the respondents, represented by counsel, and cannot claim non est factum or that the release should be set aside due to unequal bargaining power. See Arcand, above, at para. 52 and Kerzner, above, at para. 123.

77Accordingly, I find that the Minutes are not ambiguous and that Application #1 is covered by the release language in paragraph 7 of the Minutes.

78The hearing will continue on the next scheduled hearing day, November 9, 2017. The parties will make submissions about whether or not it would be an abuse of process for me to hear and decide the remaining remedial issue in dispute.

79The applicant has indicated that he intends to present evidence on that issue. The parties should be prepared to make submissions about this, in addition to the abuse of process submissions, and the applicant should file not later than Tuesday, November 7, 2017, at 5:00 p.m., any further witness statements in relation to his intended evidence.