Fred Nicholas v. Fuji Hunt Photographic Chemicals Ltd. et al., 1993 CanLII 7854

[1993] OLRB Rep. June 495

2212-92-OH Fred Nicholas, Applicant V. Fuji Hunt Photographic Chemicals Ltd., Fuji Photo Film Canada Inc. and Fuji Photo Film Co. Ltd., Responding Parties

BEFORE: S. Liang, Vice-Chair, and Board Members W. H. Wightman and G. McMenemy.

APPEARANCES: Timothy Chudy for the applicant; John Martin, William Gale, David Harris and Nancy McCarthy for the responding parties.

DECISION OF THE BOARD; June 4, 1993

1. This is a complaint made pursuant to the provisions of section 50 of the Occupational Health and Safety Act. The applicant also relies on the provisions of the Environmental Protection Act. The responding companies (who shall be referred to collectively as "Fuji") take the position that as this complaint has been settled between the parties, the Board ought to dismiss it.

2. At the outset of the hearing on May 13, 1993, the responding companies made a motion requesting that the Board adjourn the hearing of the issue of the settlement, pending the disposi­tion of an application to the Ontario Court (General Division) dealing with the same matter. The Board declined to adjourn, and proceeded to hear evidence and representations as to whether the present complaint has been settled, reserving its ruling on the issue.

3. This complaint was commenced on October 28, 1992 and arises out of the termination of employment of Fred Nicholas on September 15, 1992 by Fuji. Upon receipt of the complaint, the parties were notified of a hearing to be held on December 10, 1992, as well as of the appoint­ment of a Board Officer authorized by the Board to inquire into the complaint and to endeavour to effect a settlement. On consent of the parties, the hearing of December 10 was adjourned and the parties instead met with the Board Officer on that date. By the end of the day, the parties had filed with the Board a copy of a document titled "Minutes of Settlement" stating that they had agreed to adjourn the matter sine die. The responding companies allege that on December 10, the parties agreed to a complete settlement of the complaint.

4. By letter dated March 1, 1993, Fred Nicholas wrote to the Board stating:

Unfortunately a final agreement cannot be reached with the parties (RESPONDENTS) named above, therefore, please be advised that I would like to re-instate my Complaint filed under Sec­tion 50 of the OHS. Act.

In order to provide my Counsel with sufficient time to subpoena relevant witnesses, I would appreciate a date in late April or May 1993 for the Hearing to resume, provided this can be faci­litated by the Board.

5. The parties were advised that the matter would be heard on April 8, 1993. Prior to this date, the parties agreed to request an adjournment of this date, and the hearing was re-scheduled by the Board for May 12 and 13. May 13 was also subsequently adjourned by the Board on the request of the parties. On May 7, the Board received the following letter from counsel for Fuji:

We are the solicitors for the Respondents in the above-noted matter. The hearing of this com­plaint is scheduled to take place on May 12, 1993.

We wish to advise the Board that we will be requesting an adjournment of this matter, pending disposition of an application initiated by Fuji Hunt Photographic Chemicals Limited in the Ontario Court (General Division), scheduled to be heard on July 5, 1993. Our client is seeking a declaration of the court that an enforceable settlement agreement was entered into between Mr. Nicholas and Fuji Hunt Photographic Chemicals Limited, relating to all claims and potential claims Mr. Nicholas has against Fuji Hunt Photographic Chemicals Limited and the other cor­porations listed as Respondents in his complaint, with respect to his employment and the termi­nation of his employment. We enclose herein a copy of the Notice of Application.

It is the position of our clients that the Ontario Court (General Division) is the most appropriate forum for making a final determination as to whether Mr. Nicholas and Fuji Hunt Photographic Chemicals Limited did in fact enter into a binding enforceable settlement agreement. It would appear that the Ontario Labour Relations Board in this case would have jurisdiction only to determine whether the parties had agreed to settle the complaint filed by Mr. Nicholas under section 50 of the Occupational Health and Safety Act. Since our clients wish to obtain a final determination by a court of competent jurisdiction relating to the settlement agreement in its totality, as opposed to an agreement to settle the complaint under section 50 of the Ontario Health and Safety Act, we will be requesting an adjournment of the hearing.

In the event that our request for an adjournment is denied by the Board, we will then proceed to make a preliminary motion that the parties reached an agreement to settle this complaint and, therefore, the hearing cannot proceed. In this regard, we will be calling three witnesses, namely Mr. William R. Gale of our office, Mr. David Harris (the former solicitor of Mr. Nicho­las) and Ms Nancy McCarthy, an employee of Fuji Hunt Photographic Chemicals Limited. We will also be putting forth certain documentation which, in our submission, is evidence of the agreement. We are not providing the Board with this documentation at this time since we understand that counsel for Mr. Nicholas will be raising certain objections in relation to the admissibility of evidence that we intend to put before the Board relating to the settlement agree­ment itself.

Adjournment

6. A copy of the application in the Ontario Court (General Division) was filed with the Board. The application was commenced on May 7. The relief sought is essentially that referred to in counsel's letter. According to the application, Fuji will rely at the hearing before the court on affidavits of William R. Gale, Nancy McCarthy and the evidence of David Harris to be obtained in aid of the application in accordance with Rule 39 of the Rules of the Court.

7. In the hearing before us, we were informed that the affidavits referred to have not yet been served. The evidence of Mr. Harris has not yet been obtained. Further, although the applica­tion refers to a settlement of "all claims and potential claims" in relation to Mr. Nicholas employ­ment and termination of employment, no proceeding has been started by Mr. Nicholas other than the one before us.

8. As stated above, the Board ruled that it would not adjourn the hearing of this matter pending the court application. The applicant has requested that the matter be heard. The issue raised squarely by the responding parties is whether the Board should hear the complaint. Cer­tainly, it appears to us that it is appropriate for, and perhaps incumbent upon, the Board in the cir­cumstances to decide whether or not to allow the complaint to proceed. This is so whether or not the court may have a general declaratory power with respect to the rights between the parties, some of which pertain to the matters under this complaint.

9. Counsel for the responding parties acknowledged that the Board has the jurisdiction to determine whether the complaint before it has been settled. However, it was submitted that the primary issue between the parties is whether a more global agreement has been entered into, and on this, the Board's findings could not be binding on another court or tribunal. Thus, it is appropri­ate for the Ontario Court (General Division) to resolve the general issues, because its determina­tions would be final.

10. We agree that there may be issues raised by the application to the court which go beyond the issues raised by this complaint. On the other hand, we disagree that the primary issue between the parties is whether a more global settlement agreement has been entered into. It appears to us that at this time, the primary issue between the parties is the complaint. As stated above, at this time, it is the only proceeding between the parties. As the tribunal charged with jurisdiction to hear the complaint, it makes sense for the Board to determine whether this proceed­ing shall continue. The effect of our determination on other proceedings between the parties (which are at the moment hypothetical only) will be a matter for another tribunal or the courts.

11. We are also mindful of the fact that adjourning the issue will result in further delaying its determination. Although the application has been scheduled for hearing on July 5, there is no guarantee that it will proceed on that date. Having regard to the potential for cross-examinations on affidavits (which have not yet been served) and to the anticipated examination of Mr. Harris, there is a possibility that it will not be heard on the scheduled date. We view this as additional sup­port for our decision not to adjourn the determination of an issue which the parties agree is within our jurisdiction.

Settlement

12. On the issue of the settlement, the Board heard the evidence of David Harris (Mr. Nicholas' former counsel), William Gale (counsel for Fuji), Nancy McCarthy and Fred Nicholas. We have assessed the evidence and drawn inferences where necessary having regard to what is most probable in the circumstances. Much of the evidence is not in dispute. Where there is an irreconcilable conflict germane to our determinations, we have made decisions to prefer one ver­sion of events over another having regard to the the relative credibility of the witnesses, their abil­ity to resist the pull of self-interest in giving their testimony, and what is most probable in all of the circumstances.

13. At the outset of the hearing, counsel for Mr. Nicholas objected to the anticipated evi­dence of William Gale and David Harris, on the basis that evidence of communications between solicitors in furtherance of settlement is privileged. The Board ruled that the issue before us was the existence of an agreement. In such circumstances and having regard to the passages from Sopinka and Lederman, The Law of Evidence in Canada, to which we were referred, we were sat­isfied that the privilege did not apply.

14. On the evidence, the parties attended at the Board's offices on December 10 with the express purpose of trying to negotiate a settlement of the complaint. Discussions took place between about 10:20 a.m. and 12 p.m. In attendance were Nicholas, David Harris (counsel for Nicholas), Nancy McCarthy (Manager of Corporate Administration and Human Resources for Fuji Hunt Photographic Chemicals Ltd.), William Gale (counsel for Fuji) and Alex Vigar, the Board Officer. Over the course of the morning, Harris negotiated on behalf of Nicholas, who did not until the conclusion of the meetings meet directly with the other side. The responding parties and their counsel understood Harris to have full authority to act on behalf of his client, and noth­ing was said by any person to any other person to suggest otherwise.

15. At the conclusion of the discussions, the parties agreed to settle the complaint on the following terms:

a. Fred Nicholas would be paid a monthly retainer equal to his gross salary at the time of the termination of employment for a period of twelve months beginning September 15, 1992, such payments to be made regardless of whether he became re-employed during this period;

b. Fred Nicholas would be paid the same retainer for an additional six months after September 15, 1993, or until he became re-employed, whichever was earlier;

c. If Fred Nicholas found re-employment after September 15, 1993 and before March 15, 1994, he would be paid 50% of the remaining bal­ance;

d. For the purposes of these payments, Fred Nicholas would be charac­terized as a consultant;

e. The cessation of Mr. Nicholas' employment with Fuji Hunt Photo­graphic Chemicals Ltd. would be characterized as a resignation and Fuji Hunt would provide a letter of reference to Mr. Nicholas;

f. The normal releases would be provided (although, as we find below, there is some lack of clarity as to whether the parties intended for there to be mutual releases, we are satisfied that "normal releases" was intended to include at a minimum a release by Nicholas of all claims against Fuji);

g. Fuji would pay $2500 to Mr. Nicholas for legal fees.

16. Both Harris and Gale testified that agreement was reached on the above terms on December 10. McCarthy was present when counsel confirmed the agreement to settle, but not Nicholas. Harris met with Gale and McCarthy on Nicholas' behalf to confirm the agreement to set­tle. The parties agreed that Gale would draft a written agreement incorporating the terms of the settlement. Gale testified that after the agreement was concluded, the parties met together, at which time he and Nicholas shook hands and he congratulated Nicholas on the settlement, stating that it was a good settlement, that the morning had been worthwhile and that they had saved them­selves perhaps twelve days of hearings.

17. Nicholas did not directly dispute the evidence of the above conversation. Neither does he dispute (except as outlined below) that an agreement to settle was reached on December 10 on the above terms. However, he states that he understood, and was told by Harris, that the agree­ment that was reached was a tentative agreement, "contingent on finalizing its particulars". (This was not put to Harris in cross-examination.) Nicholas also states that although Harris explained to him during the course of the discussions the general terms of the settlement, he did not explain all of its details. Harris was clear in his evidence that all of the proposed terms were explained to Nicholas by him, and that there was no question in his mind but that Nicholas understood the terms of the settlement.

18. As stated above, the general terms of the settlement set out above were not disputed by Nicholas. However, Nicholas testified that right after the meeting, he discovered from talking to Harris that the amount of legal fees agreed to would not cover legal fees that he had incurred through another lawyer prior to his termination from employment. He did not raise it with Harris however. He states that he was "shocked", "shook his head", but remained silent about the mat­ter.

19. Nicholas stated that as a result of his concern over the legal fees, he tried to contact Harris the following day by telephone. He testified that did not speak to Harris, but left a message with a receptionist or secretary, stating that the matter was urgent, he was leaving the country December 18, there was a problem with the agreement and he did not think he would be signing the agreement. There is no evidence as to whether Harris received this message. Nicholas testified that he left similar messages on December 14 and 17. Again, there is no evidence as to whether Harris received the messages, and he was not cross-examined on the point.

20. On December 15, both counsel sent letters to each other confirming the terms of the settlement reached on December 10. Since Gale had agreed to draft the documentation, he enclosed with his letter copies of a draft consulting agreement, release, and letter of resignation for Nicholas' signature. The letter from Gale to Harris begins: "This will confirm the agreement which we reached December 11 [sic] to settle all of the issues flowing from the termination of Mr. Nicho­las' employment with Fuji Hunt Photographic Chemicals, Ltd..." The letter from Harris to Gale states: "I confirm we have agreed to resolve the complaint of Mr. Nicholas upon the following terms and conditions..." A copy of the letter from Harris to Gale was also sent to Nicholas. The terms of the settlement contained in these two letters are almost identical. There is some minor variation. For instance, the letter from Gale refers to the issuance of a new Record of Employment to Nicholas. The letter from Gale also states that Nicholas is to execute a comprehensive release in favour of the responding parties, while Harris states only that "[a]ppropriate releases shall be exe­cuted."

21. Nicholas was out of the country from December 18 to about January 4. On January 4, he spoke on the phone with Harris, who told him that he had received the documentation from Gale. Nicholas raised his concern about the legal fees. Although, in Harris' view, the further legal fees had clearly not been part of the settlement, Harris sent a letter to Gale requesting that Fuji consider paying for Nicholas' legal fees prior to termination. On February 2, Gale informed Harris by letter that Fuji was not prepared to pay the further legal costs.

22. Some other correspondence was exchanged between counsel between December 15 and February 2, which is unnecessary for us to detail here.

23. Counsel for Nicholas submits that section 91(7) of the Labour Relations Act, which is incorporated into the Occupational Health and Safety Act, requires settlements to be in writing. Where, as in this case, there are no minutes of settlement, there is no settlement. Counsel does not dispute the law regarding a solicitors' ostensible authority on behalf of a client, but submits that it ought not to prevail in the face of the clear statutory language. In effect, counsel is urging the Board to find that even if counsel for the parties understood there to be a binding settlement, the settlement ought not to have force unless the client has clearly agreed to it.

24. Counsel also submits that there was no agreement to settle on December 10 because some matters were not clearly settled. For instance, Harris testified that when he agreed to the provision of "normal releases", he understood that there would be mutual releases exchanged between the parties. Gale testified that he understood this to mean that Nicholas would execute a release in favour of the responding parties.

25. Counsel for Fuji relies on a number of cases which set out that the relationship of a solicitor to his or her client is one of agent to principle. In his submission, any limitation of author­ity between a solicitor and client does not affect an opposite party unless that opposite party has notice of the limitation. Therefore, as in this case, a court or tribunal does not need to inquire into the authority of a solicitor to enter into a specific settlement. A settlement entered into by a solici­tor about whom there is no dispute as to the existence of a retainer, will be enforced against the cli­ent. Counsel also referred the Board to cases before the courts which have applied this principle even in the face of statutory provisions (in family law legislation) requiring settlements to be in writing and signed by the parties. Counsel relied on: Scherer v. Paletta, 1966 CanLII 286 (ON CA), [1966] 2 O.R. 524 (Ont. CA); Picco v. Picco (1987), 1987 CanLII 5073 (NL SC), 23 C.P.C. (2d) 149; Geropoulos v. Geropoulos (1981), 1981 CanLII 1729 (ON HCJ), 33 OR. (2d) 829; Geropoulos v. Geropoulos (1982), 1982 CanLII 2020 (ON CA), 35 O.R. (2d) 763; McKnight v. McKnight (1981), 1981 CanLII 2879 (ON HCJ), 21 C.P.C. 174.

Decision

26. Section 50(3) of the Occupational Health and Safety Act ("the OHSA") states:

(3) The Ontario Labour Relations Board may inquire into any complaint filed under subsection (2), and section 91 of the Labour Relations Act, except subsection (5), applies with all necessary modifications as if such section, except subsection (5), is enacted in and forms part of this Act.

[emphasis added]

27. Section 91(4) of the Labour Relations Act ("the LRA") states in part:

91.-(4) Where a labour relations officer is unable to effect a settlement of the matter complained of or where the Board in its discretion considers it advisable to dispense with an inquiry by a labour relations officer, the Board may inquire into the complaint of a contravention of this Act

[emphasis added]

28. Section 91(7) of the Labour Relations Act provides:

91.-(7) Where a proceeding under this Act has been settled, whether through the endeavours of the labour relations officer or otherwise, and the terms of the settlement have been put in writ­ing and signed by the parties or their representatives, the settlement is binding upon the parties, the trade union, council of trade unions, employer, employers' organization, person or employee who have agreed to the settlement and shall be complied with according to its terms, and a complaint that the trade union, council of trade unions, employer, employers' organiza­tion, person or employee who has agreed to the settlement has not complied with the terms of the settlement shall be deemed to be a complaint under subsection (1).

29. Section 174(6) of the Environmental Protection Act ("the EPA") states:

(6) Where the labour relations officer is unable to effect a settlement of the matter complained of, the Board may inquire into the complaint.

30. The wording of section 50 of the OHSA, section 174(6) of the EPA, and section 91 of the LRA provide a discretion to the Board to decide whether or not to inquire into a complaint. In previous cases before the Board, the Board has refused to inquire, for example, where there has been undue delay in filing a complaint, or where the parties have settled a complaint. In Graham Smith, [1991] OLRB Rep. Oct. 1204, a complaint under section 85(2) [now 87(2)] of the Act, the Board concluded that the matter had been settled and exercised its discretion to decline to inquire further into the complaint. The Board's finding was made in the absence of any documents executed by the parties confirming the settlement. On the subject of settlements in general, and settle­ments which are not in writing, the Board stated:

7. The Board has in its jurisprudence attempted to encourage settlement by ensuring that settle­ments will be reliable and final endings to the applications or complaints before it. In Tony Hoosain, [1987] OLRB Rep. Dec. 1513 the Board had this to say on the subject:

Each year, trade unions, employees, or employers file hundreds of applications or complaints before the Board. A great majority of them are settled. Sometimes the settlement favours a trade union or the employer. Sometimes it may favour an employee. Usually the settlement represents a compromise under which the parties neither achieve as much nor risk as much as they would by proceeding to a hearing before the Board. The parties generally arrive at a settlement in order to avoid the cost and uncertainties of litigation. Both the orderly resolution of Board proceedings and the efficacy of the settlement process would be gravely prejudiced if, having signed minutes of settlement, a party could afterwards repudiate that settlement and revive the original proceedings because s/he later had second thoughts about the set­tlement terms.

8. In that case, the settlement was in writing. However, the Board has made it clear that even an oral settlement may result in it declining to inquire further into a complaint. For example, in Madeleine Cloutier, [1988] OLRB Rep. Apr. 375, the Board said as follows:

One of the distinguishing features of labour relations is that it operates in the context of continuing relationships. For that reason, among others, settlements are particu­larly desirable and the Board has accorded considerable priority to efforts towards this end. It is also essential that the Board's jurisprudence provide a legal climate which encourages and reinforces this goal. If parties to labour litigation cannot rely on their agreements, the Board's settlement processes may be rendered almost worth­less. With respect to section 89 complaints, the Board has noted in the past that it has a discretion with respect to its inquiry. It has also declined to proceed further with a complaint in the exercise of that discretion where the parties have reached a settle­ment. (See, for example, C. E. Jamieson & Co. (Dominion) Limited, [1985] OLRB Rep. March 375).

9. The basis of the Board's discretion under section [91] is the permissive wording contained in section [91(4)] to the effect that "the Board may inquire into the complaint" (emphasis added). Section [87(2)] contains identical wording, and we conclude that we have a similar discretion with respect to complaints filed under that section. There is no question as well that the Board's policy considerations with respect to encouraging settlement and promoting orderly and final resolutions of cases are as compelling in these circumstances as in cases brought under section [91].

31. As well, in H. John Barnes, [1992] OLRB Rep. June 668 the Board found a settlement in a complaint under section 91 even in the absence of a formal settlement document. We do not read the provisions of section 91(7) to mean that agreements to settle a complaint which are not reduced to formal minutes will have no effect between the parties. In our view, the purpose of sec­tion 91(7) is primarily the provision of an enforcement mechanism for settlements. It does not qualify the Board's discretion under section 91 to decline to inquire into a complaint. Where there has been an agreement to settle the complaint, whether or not this agreement has been set down in writing, there are sound policy reasons to exercise our discretion not to inquire further.

32. On the evidence, we are satisfied that as of December 10, all parties and their counsel understood they had reached a settlement of the matter, containing the terms set out in paragraph 15 above. In the context of all the evidence we heard regarding the meeting of December 10, as well as the parties' subsequent actions, we find it extremely improbable that Harris would have told Nicholas that the settlement was "tentatively" only, "contingent on finalizing its particulars". When the parties left the meeting on December, they knew that Fuji was to pay certain monies to Nicholas, as well as undertake certain other actions, and they knew that in exchange for this, Nich­olas had agreed not to pursue any further action against Fuji.

33. We find that although counsel then intended to produce a written agreement setting out the terms of the settlement, this written agreement was meant to be confirmatory in nature. Hav­ing arrived at a settlement on December 10, it was not intended by either counsel that potential disputes over the details of the written documentation would have the effect of vitiating the settle­ment. Harris did testify in cross-examination that the draft consulting agreement would have to be reviewed with Nicholas in order for there to be "finality", but he was clear that an agreement had been reached to set up a consulting arrangement for the purposes of payment. We find this consis­tent with the understanding of both counsel that there was a final agreement reached on December 10, but that the parties would then engage in the process of setting the agreement down on paper.

34. We find that Nicholas began to have second thoughts about the settlement. Initially, his second thoughts were centred on the issue of legal costs. We find that Nicholas' legal costs from prior to the termination of employment were not part of the settlement reached on December 10. We find that the issue of legal costs was only a specific manifestation of Nicholas' growing change of heart with respect to the settlement. He also states that on February 3, he received a copy of the draft documentation from Harris. He was taken aback at its length, considering the relatively short set of negotiations. He states that the issue of the release had never been discussed, and he was served with a long release. He was also taken aback by the terms of the draft consulting agreement which appeared to require that he make his services available to Fuji for the period of the pay­ments. He was concerned that this might prevent him from seeking other work. Yet Nicholas made no attempt to clarify any of the above with Harris. Instead, he retained further counsel.

35. If Nicholas had been prepared on February 3 to adhere to the settlement reached on December 10, these concerns would not have been obstacles to him. For instance, it was clear to all parties on December 10 that the notion of a consulting agreement was a vehicle for the payment of the retainer to Nicholas. It was not the intent of Fuji to use Nicholas, services during the period of payment. This could have been clarified and confirmed very easily.

36. Nicholas' concerns about the length of the documentation and the length of the release reflect, in our view, growing unease about the settlement which had been concluded, rather than a conclusion that what Gale had drafted was not what had been agreed to. Among other things, we are satisfied that Nicholas had understood on December 10 that the settlement included the execu­tion of a release by him concerning all claims against the respondents. We are satisfied that as of December 10, Nicholas knew that the terms of the settlement were as set out in paragraph 15 above (which were also confirmed in the letter from Harris to Gale which was copied to Nicholas).

37. Nicholas also made reference in his evidence to a concern that the settlement did not take into account his concerns over his potential liability as a former officer of the company for environmental matters. We are satisfied that this was not raised by him during the meeting of December 10, and was only raised by him subsequently as a further justification for attempting to abrogate the settlement.

38. We therefore find that as Nicholas began to have second thoughts about the settlement, he began to rely in his own mind on the fact that there were still settlement documents to be exe­cuted, as a means of at first trying to improve the settlement and then ultimately, as justification for walking away from the settlement. His perception that the settlement was not yet intended to be binding was not, however, grounded in any of the objective circumstances surrounding the set­tlement.

39. On the basis of our findings above, therefore, we would exercise our discretion not to inquire into this complaint. In any event, the law in Ontario regarding settlements entered into by solicitors appears to be well settled and was not disputed by counsel for Nicholas. In the oft-quoted decision in Scherer v. Paletta, supra, the Court of Appeal stated,

Where a principal gives an agent general authority to conduct any business on his behalf, he is bound as regards third persons by every act done by the agent which is incidental to the ordinary course of such business or which falls within the apparent scope of the agent's authority. As between principal and agent, the authority may be limited by agreement or special instructions but as regards third parties the authority which the agent has is that which he is reasonably believed to have, having regard to all the circumstances, and which is reasonably to be gathered from the nature of his employment and duties. The scope of authority is, therefore, largely gov­erned by the class of agent employed provided that he is acting within the limit of his ordinary avocation or by relation of the agent to the principal or by the customs of the particular trade or profession.

A solicitor whose retainer is established in the particular proceedings may bind his client by a compromise of these proceedings unless his client has limited his authority and the opposing side has knowledge of the limitation, subject always to the discretionary power of the Court, if its intervention by the making of an order is required, to inquire into the circumstances and grant or withhold its intervention if it sees fit; and, subject also to the disability of the client. It follows accordingly, that while a solicitor or counsel may have apparent authority to bind and contract his client to a particular compromise, neither solicitor nor counsel have power to bind the Court to act in a particular way, so that, if the compromise is one that involves the Court in making an order, the want of authority may be brought to the notice of the court at any time before the grant of its intervention is perfected and the Court may refuse to permit the order to be perfected. If, however, the parties are of full age and capacity, the Court, in practice, where there is no dispute as to the fact that a retainer exists, and no dispute as to the terms agreed upon between the solicitors, does not embark upon any inquiry as to the limitation of authority imposed by the client upon the solicitor.

40. It does not appear that the Board has dealt with the issue of a settlement where there has been a question raised with respect to counsel's lack of authority to enter into the settlement, but we have been given no compelling argument as to why the normal common law principles should not apply to proceedings before us. In our view, section 91(7) does not alter these common law principles, since as we have outlined above, section 91(7) does not preclude the Board from giving effect to oral settlements reached between parties. Further, by its very words, section 91(7) permits settlements in writing to be executed by parties' "representatives", which only places the issue squarely back within the general legal principles. We are satisfied that the principle in Scherer v. Paletta, supra, applies to the facts before us as both counsel were of the clear understanding that a settlement had been concluded. We thus give effect to the settlement reached insofar as we rely on it in the exercise of our discretion not to inquire into this complaint.

41. In the result, we decide not to inquire further into this complaint because it has been settled.