Vincent Therien v Arbor Memorial Services Inc., 2022 AHRC 39 (Bonora) is a recent Alberta Human Rights Commission decision where the human rights discrimination complaint had been settled verbally between the parties at a Human Rights Tribunal Dispute Resolution (TDR) session, but when the parties tried to reduce the agreement to writing, the complainant refused to sign it.
The complainant argued there was no settlement and the matter should be able to proceed. The AHRC rejected this argument and found that the matter was settled and was not allowed to proceed any further.
Facts
Below are the pertinent facts found by the AHRC:
- The complainant had filed a complex human rights complaint, alleging discrimination on the basis of mental disability, age, religious beliefs, ancestry, place of origin and sexual harassment
- The parties voluntarily participated in a Tribunal Dispute Resolution (TDR) session, in an attempt to settle the matter. The complainant made a settlement offer which was accepted by Arbor Memorial Services
- The AHRC member running the TDR then had the parties discuss the terms of the settlement and come to a verbal agreement. It was agreed at that time that this would be reduced to a written agreement
- Later, the AHRC director and Arbor Memorial Services agreed on the written form of agreement, but the complainant refused to sign it
- The complainant sent in a written request that, in addition to the settlement they discussed, she wanted a certain employee of Arbor Memorial Services to resign or be fired. She also mentioned that she still wanted to “go to court and go public” because she wanted future employees to be aware of the abuse
The complainant indicated that her fatigue may have played a factor in the settlement they had discussed previously, and that she was unwell. She did not provide any medical evidence supporting this
Analysis / Conclusion
The AHRC concluded that there had been a settlement at the TDR, and that the AHRC Director and Arbor Memorial Services had agreed to the terms of the written agreement and release.
The AHRC found that the lack of a signed, written agreement did not prevent the conclusion that there was an agreement already in place, and found that the complainant’s settlement remorse and desire for further remedies was not a good reason to overturn the agreement:
[23] It is clear in law that the failure of the complainant to sign a written agreement is not fatal to finding there is a binding agreement.
[…]
[29] The complainant has not attempted to rescind her offer. She has sought additional remedies involving punishment of another employee. She also seems to suggest that she had fatigue and other illnesses although there is no independent verification of these ailments. These are not reasons to overturn a settlement. [underline added]
[…]
[31] The complainant seems to have settlement remorse and on that basis has refused to sign the settlement agreement and release. While a party may subsequently regret entering into a settlement or hope for more, that does not void a validly reached agreement.
The end result was that the complaint was not allowed to proceed any further, because it was considered to be settled.
My Take
The complainant’s position in this case might seem unreasonable to some observers. However, parties do sometimes change their minds after a settlement is reached in the heat of the moment, and sometimes parties do not fully understand all the terms they “agreed” to. We see this most commonly when someone enters a settlement arrangement without having their own legal counsel to provide them truly independent advice before they agree to something.
Here is an example of a relatively common situation which results in disagreements and can result in one party or the other arguing there is no settlement:
- the parties agree that the employer will pay $5,000 to the employee
- the parties agree that the employee will sign a release in exchange
- when the employer supplies its proposed release, the draft contains sections on confidentiality of settlement, non-disparagement, and indemnification for various things
- the employee argues that the release is too broad, and should only “release” the employer from liability to the employee
- the employer argues the release is “standard”.
The likelihood of the above scenario taking place is much lower when both sides have a lawyer to advise them before they say “I agree”.
It is not clear on the facts provided whether legal counsel would have helped in this Therien case, because it seems there was an element of “buyers remorse” rather than misunderstanding of terms.
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