Focus On

CIVIL PROCEDURE - Settlements - Offers - Releases - Enforceability

Thursday, August 10, 2017 @ 8:43 AM  


Lexis Advance® Quicklaw®
Appeal by Buterman from the dismissal of his appeal from an Alberta Human Rights Commission Tribunal (Tribunal) decision, finding that he had relinquished his human rights claim against the Board of Trustees of the Greater St. Albert Roman Catholic Separate School Board District No. 734 (Board) because the Board and Buterman had entered into a settlement agreement. In October 2008, Buterman was removed from the Board’s roster of substitute teachers because he was a transgendered person in the process of transitioning from female to male. The day after Buterman filed a human rights complaint in October 2009, the Board offered to settle the complaint for $78,000, the equivalent to five years’ pay as a substitute teacher, in exchange for withdrawal of the complaint, a covenant not to advance any further human rights complaints or legal process in relation to the complaint, and a standard release containing a confidentiality clause. Buterman initially rejected the offer, but after receiving a new offer from the Board in September 2010, indicated he was willing to accept the October 2009 offer. The Board indicated that the offer was still open and agreed to Buterman’s acceptance. After an exchange of correspondence with respect to the form of the release and confidentiality agreement requested by the Board, Buterman returned the settlement funds and his counsel ceased to act. Buterman advised the media that he had rejected the offer due to the confidentiality clause. The Tribunal then conducted a three-day hearing to consider the Board’s position that it lacked jurisdiction to hear the complaint, given that the parties had entered into a settlement. A majority of the Tribunal accepted the Board’ position, finding that Buterman had accepted the Board’s October 2009 offer and that subsequent negotiations about the terms of the release and confidentiality clauses did not constitute the Board’s repudiation of the settlement. The Board forwarded the settlement funds to Buterman in November 2014 and waived the execution of the settlement documents. The Tribunal then determined that it had no remaining jurisdiction because the parties had entered into a settlement agreement which had been fully executed. On appeal, the judge determined that the Tribunal’s conclusions were reasonable.

HELD: Appeal dismissed. It was reasonable for the Tribunal to find that the October 2009 offer to Buterman remained open until the date he accepted it, although he had initially rejected it, because the offer could only be made to Buterman and was not time-limited. The Tribunal reasonably found that the essential terms of the settlement, which included the payment of $78,000, the withdrawal of the complaint, the covenant not to issue further process or complaints, and the execution of the release and confidentiality agreement, were agreed upon and that the ensuing negotiations dealt with only the form, not the substance, of the agreement. The Board did not repudiate the agreement by sending draft documents to Buterman directly after his counsel ceased to act. The Tribunal was entitled to find that the Board remained open to Buterman modifying the draft settlement documents at all times. There was no basis to find that Buterman accepted any repudiation of the agreement. The agreement was not unconscionable simply because Buterman changed his mind about it.

Buterman v. Greater St. Albert Roman Catholic Separate School District No. 734, [2017] A.J. No. 640, Alberta Court of Appeal, J. Watson, P.A. Rowbotham and B.L. Veldhuis JJ.A., June 23, 2017. Digest No. TLD-August72017007