Doffy Hahn v. 487948 Ontario Limited and Propan Ltd., 1995 CanLII 9934

[1995] OLRB Rep. September 1154

4587-94-U Doffy Hahn, Applicant v. 487948 Ontario Limited and Propan Ltd., carrying on business as Badlands, Responding Party

BEFORE: Gail Misra, Vice-Chair, and Board Members J. A. Rundle and B. L. Armstrong.

APPEARANCES: Rochelle F. Cantor and Doffy Hahn for the applicant; Craig Colraine and Alek Korn for the responding party.

DECISION OF THE BOARD; September 14, 1995

1The title of this proceeding is amended to describe the responding party as: "487948 Ontario Limited and Propan Ltd., carrying on business as Badlands".

2This is an application made pursuant to section 91(7) of the Labour Relations Act in which Doffy Hahn alleges that the responding party (also referred to as "Badlands") has failed to comply with the terms of a settlement reached on October 19, 1994. The relevant section of the Act states as follows:

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).

3Counsel for the two parties to this application made their submissions to the Board. No evidence was called. The documents which had been submitted to the Board with the application were relied upon by both parties. There was no real dispute on the substantive facts underlying the application and those facts are outlined below.

4Ms. Hahn was dismissed from her employment as a bartender at Badlands on January 1, 1994. On April 1, 1994 Ms. Cantor, acting on Ms. Hahn's behalf, filed an application under sec­tion 91 of the Act alleging that a number of responding parties, including the responding party to this application, had committed unfair labour practices. In that application Ms. Cantor named Dwayne Whitford as a person who may be affected by the application because he had been involved in assisting Ms. Hahn in an organizing drive at Badlands and had subsequently been fired from Badlands. Whitford had also been dismissed in January 1994.

5After the applicant had requested two adjournments of hearing dates, the matter was finally scheduled for hearing on October 19, 1994. The applicant had intended to call Mr. Whitford as a witness so he was present at the Board on October 19, 1994. Prior to the matter being heard, however, the parties reached a memorandum of settlement which states as follows:

LABOUR RELATIONS ACT

APPLICATION UNDER S. 91 OF THE ACT

BEFORE THE LABOUR RELATIONS BOARD

BETWEEN:

DOFFY HAHN

(Applicant)

and

BADLANDS, RANDY FILBY, ALBERT DAVIS, ALEK KORN

(Respondents)

MINUTES OF SETITLEMENT

The parties hereto agree to settle the Application, and all other matters relating thereto, on the following terms:

(1) The Applicant shall withdraw the Application herein on October 19, 1994, which Application shall not be pursued or re-constituted in any form.

(2) The Respondent, Badlands, shall pay to the Applicant the sum of $4,500.00 payable by way of post-dated cheques to be provided October 21, 1994, as follows:

(i) $500.00 payable October 19, 1994;

(ii) $2,000.00 payable Nov. 1, 1994; and

(iii) $2,000.00 payable Dec. 1, 1994.

(3) The Applicant shall withdraw any and all complaints which may have been filed with the Ontario Human Rights Commission, the Canadian Human Rights Commission, and any and all tribunals which do or may have jurisdiction relating in any way to the employment and dismissal of the Applicant by Badlands, no later than October 21, 1994.

(4) The Applicant shall not commence any action for damages relating to her dismissal by Badlands, or with respect to any matter regarding her employment by Badlands, against the Respondents.

Dated at Toronto this 19th day of October, 1994

"Doffy Hahn"

Doffy Hahn

"Alek Korn"

BADLANDS

per: Alek Korn (1 have authority to bind Bad­lands)

"R. A. Filby"

Randy Filby

"A. Davis"

Albert (BVD) Davis

"Alek Korn"

Alek Kom

6On October 20, 1994 Mr. Colraine, acting for Badlands, wrote to Ms. Cantor indicating that his client would be sending to her office by courier the cheques as required by the Minutes of Settlement executed on the day before.

7On October 20, 1994 Ms. Cantor, on behalf of Mr. Whitford, filed an application under section 91 of the Labour Relations Act alleging that the employer had committed unfair labour practices of the same ilk as had been alleged in the Hahn application.

8By a letter dated October 21, 1994 Mr. Colraine recounted to Ms. Cantor a telephone conversation they had had that morning in which Ms. Cantor had advised Mr. Colraine she was acting for Mr. Whitford and was filing a complaint with the Labour Relations Board with respect to the same or similar matters raised in the Hahn complaint. The letter indicated that Mr. Colraine was of the opinion that the new complaint was "underhanded and clearly in breach of the spirit of the settlement..." and that Hahn and Whitford were acting in bad faith. He indicated further that his client would not be delivering the settlement monies pending resolution of this matter. It is not disputed that at a hearing before the Board into the Whitford application, Mr. Whitford gave evi­dence that he had delayed in filing his application until October 1994 on the advice of his counsel, Ms. Cantor.

9In a letter dated October 24, 1994 Mr. Colraine advised Ms. Cantor that on October 19, 1994, the date of the settlement, his client obtained information regarding the authenticity of cer­tain documents. Given the nature of this information, he was of the view that the settlement would be void. Mr. Colraine expressed his shock that Ms. Cantor had, as a solicitor, negotiated the settle­ment in question when she knew Mr. Whitford was present, and knew that she would be com­mencing a separate application on Mr. Whitford's behalf after the Hahn settlement had been reached. During the negotiations Ms. Cantor had disclosed that Ms. Hahn would be taking action against the union, however, there was no mention of Mr. Whitford's pending application. In Mr. Colraine's view in this letter, Ms. Cantor had therefore "deliberately attempted to ambush the Respondents" during the negotiations.

10The situation giving rise to Mr. Colraine's letter is outlined below. No certification application was ever filed with respect to this employer. Counsel for the applicant provided the responding parties with all of the union membership cards which had allegedly been signed by Bad­lands employees. On October 28, 1994 Lee Dermott, an employee at Badlands, made a statutory declaration that while a union membership card had apparently been created by Ms. Hahn bearing Ms. Dermott's name and signatures, Ms. Dermott had never expressed any interest in joining the union, and had not signed any union membership card. In a statutory declaration dated April 26, 1995 Ms. Hahn declared that one employee did authorize Ms. Hahn to sign a union membership card on her behalf. Since the union organizer apparently told Ms. Hahn she could complete a union membership card by proxy, she did so. Nowhere in .the statutory declaration is it made clear whether Ms. Hahn is referring to Ms. Dermott. It was on the basis of Ms. Dermott's declaration that Mr. Colraine questioned the authenticity of some of the membership cards, and questioned Ms. Hahn's role in the collection thereof.

11No action appears to have been taken until the present application was filed on March 23, 1995. The responding party admits it has not complied with the terms of the settlement, although the applicant has complied with her terms. However, it is argued on behalf of Badlands that the settlement itself was not entered into in good faith by the applicant and her counsel, and that the parties were not ad idem at the time of reaching the settlement because of the misrepre­sentations and non-disclosure of the applicant and her counsel. It is posited that Ms. Cantor and Ms. Hahn should have informed the responding parties at the settlement discussions that Mr. Whitford was about to file a similar application to the one being settled, and that to not do so was a deliberate action of non-disclosure which was material to the settlement discussions. It is suggested further that the issue raised by the Dermott statutory declaration shows a further lack of good faith and bona fides on the part of the applicant. Since Badlands had not seen the union cards prior to the settlement, there had been no opportunity to check this matter prior to the negotiations, and therefore, Badlands had acted without knowledge in reaching the settlement it did.

12It is the applicant's position that the only parties to the settlement were those named as parties on the original application, and they did not include Mr. Whitford. Since the settlement document is simple, has no confidentiality clause, and does not bind any other persons, it should be complied with by Badlands. To place on the applicant the burden of disclosing what other litiga­tion may be instituted by some other parties is too onerous a burden to place on an applicant par­ticipating in settlement negotiations. On behalf of the applicant it is argued that Badlands itself did not disclose it was in the process of selling the business, which it did about one week after the set­tlement was reached. The applicant also asserts that the responding parties never applied to the Board to have the settlement set aside, so they took no action even after it had come to their atten­tion that there was another application being filed and an issue about the authenticity of the mem­bership card. Counsel for the applicant states that she was not acting for Mr. Whitford on the date of the settlement, but was representing Ms. Hahn in her hearing at the Board.

13When the Board inquired of the parties what the prejudice may be to them should the settlement be set aside, Badlands' position was that since the delay in the first application coming on for hearing, and subsequently, was the applicant's, the Board could address that issue when deciding on the remedy question. In any event, the sale of Badlands occurred on October 24, 1994 and the business closed at that juncture, so there would be no continuing damages beyond that date. Since the corporate entities comprising Badlands are still live, it was felt there would be no prejudice to the responding party if the matter was resuscitated.

14Counsel for the applicant indicated there would be substantial prejudice to the appli­cant's ability to present her case as witnesses are no longer available since Badlands closed in Octo­ber 1994. There were some internal union problems between two union entities at the time and it is unclear if the individuals who had been involved with the campaign at Badlands would be avail­able, and even if available, it is likely that memories would have faded since the campaign in Janu­ary 1994.

DECISION

15The value and importance of the settlement process in labour relations cannot be overs­tated. Settlement documents are not and should not be entered into lightly, and as a general rule, a party seeking to resile from a settlement document will not be looked upon favourably by the Board. As the Board observed in Crown Electric, [1978] OLRB Rep. Apr. 344, at paragraph 17:

Parties who enter into written settlements have a responsibility to ensure that they are fully aware of the implications of any document to which they attach their signatures. In the absence of any allegation of fraud the Board must assume that parties have agreed to any settlement plainly expressed in a written document, or otherwise no settlement would be immune from a subsequent challenge.

16The allegations made on behalf of the employer in the case before us do not amount to fraud. It cannot be said that the applicant or her counsel should have to disclose to the responding party that there may be others who may file similar claims. Indeed, it would be impossible for one applicant to make such a disclosure on behalf of some other individual. It may well be that counsel would also be in breach of the professional rules of conduct to disclose who her other clients may be and that such persons may be filing a complaint against this responding party. From the submis­sions made to us, it is not at all clear that the responding party asked whether Mr. Whitford would be filing a complaint. Had that question been asked of Ms. Cantor and answered in the negative, there may have been some cause for complaint. Even in that event, however, it is unclear whether the Board would have allowed the responding party to resile from the settlement, as the settlement concerned Ms. Hahn and Ms. Hahn cannot in those circumstances be held responsible for the actions of her counsel.

17While the responding party's allegations about the membership evidence are troubling, it is to be remembered that no application for certification was ever filed and the Board had no opportunity to consider the membership cards. Therefore, no findings have been made about the card in question, and no fraud was found to have been perpetrated on the Board. Even in the event that such a finding had been made, it would have affected the certification application, and not Ms. Hahn.

18It is counterproductive to the overall efficacy of the settlement process for the Board to evaluate the parties' motivations or the terms of particular settlements. The Board seeks to pro­tect, in accordance with its legislated mandate in section 91(7) of the Act, the settlements reached by the parties. Where the terms of the settlement are clear, parties should not expect to be allowed to depart from the terms they have agreed to, or to be relieved of the consequences of their settle­ment because the situation changed after the settlement.

19As the Board wrote in its decision in Lambton County Board of Education, [1987] OLRB Rep. Oct. 1277:

The purpose of section [91] is to secure a prompt, final and hinding resolution of unfair labour practice complaints. The Act expressly recognizes and endorses the settlement of such com­plaints without a formal Board hearing decision. The provisions of section [91] are intended to facilitate settlements. Under section [91(7)], where the matter complained of in the section [91] complaint has been settled, 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 who agreed to the settlement. Indeed, section [91(7)] makes non-compliance with a written settlement a breach of the Act. Each year, trade unions, employees, and employers file thousands of applications or complaints before the Board. A large majority of them are settled. Sometimes the settlement favours a trade union or an employer. Other times it favours an employee. Usually it 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. The orderly resolution of Board proceed­ings and the efficacy of the settlement process would be gravely prejudiced if, having signed Minutes of Settlement, the party could afterwards repudiate the settlement.

20In this settlement only the parties to the application agreed to the settlement and the person who was to receive the benefits and who had the obligations under the settlement was Ms. Hahn. The terms of the settlement are clear. The parties to the settlement both had counsel to advise them. Ms. Hahn has purportedly fulfilled her part of the bargain. It remains for the responding party to comply with the settlement.

21Counsel for the responding party submitted three decisions in civil cases for the Board's consideration. While we have read and considered all of the cases, we have not found them to be of assistance to us in reaching our decision. In Canadian Imperial Bank of Commerce v. Weinman (1992) 6 C.P.C. (3d) 189 (Ont. Ct. of Justice, Gen. Div.), the court considered a case where the written offer to settle was substantially different from the positions taken by the parties during negotiations~ but the defendant had made an innocent mistake in that correspondence. The court found that the settlement agreement was not enforceable. The facts before us are completely dif­ferent as the parties were present when the settlement terms were discussed and they signed the settlement. There is no suggestion before this Board that the terms of the settlement are at vari­ance with what had been discussed. Rather, it is because other information has subsequently come to the attention of the responding party that it is now seeking to resile from the agreement reached.

22In Draper v. Sisson (1991), 50 C.P.C. (2d) 171 (Ont. Ct. of Justice, Gen. Div.), the plaintiffs solicitor made a mistake in her acceptance of an offer to settle although all discussions prior to the acceptance had made clear her position on behalf of her client. The court would not permit the defendants to take advantage of the mistake of the plaintiffs solicitor. As outlined ear­lier, the facts of the case before the Board are clearly distinguishable.

23Finally, in Lowe v. Suburban Developers Ltd., 1962 CanLII 205 (ON CA), [1962] O.R. 1029, the Court of Appeal upheld an award made based on findings of a lower court that the purchasers of a piece of property had been induced to purchase by fraudulent misrepresentations. The finding of fraudulent misrep­resentations was premised on evidence of a brochure used by the developer, by the impressions given by the developer's agent, and by covenants contained in the deed. In the case before this Board there is no evidence of fraudulent misrepresentation. At best, questions may not have been asked and so no information provided about what Mr. Whitford's plans were. It is clear that Mr. Whitford was present at the Board on the day the settlement was reached and it would have been possible for the responding party to have asked him what his intentions were if the responding party wished to ensure that all potential claims had been dealt with at that juncture. As outlined earlier, the information before the Board about the membership evidence is insufficient for us to make any findings of fraud, and in any event, would not have any impact on the settlement reached with Ms. Hahn.

24In all of the circumstances of this case, and for the above reasons, we find that the responding party has breached the provisions of the settlement reached on October 19, 1994. The responding party is hereby ordered to comply with the terms of that settlement forthwith. The applicant knew the responding party was not going to comply with the settlement as early as Octo­ber 21, 1994, however, there was no explanation given in the materials filed nor at the hearing of why this matter has taken so long to be brought to the Board's attention. We therefore decline to award interest on the amount outstanding.