Abouchar v. Conseil scolaire de langue franaise d’Ottawa-Carleton – Section publique et al.*
[Indexed as: Abouchar v. Conseil scolaire de langue franaise d’Ottawa-Carleton – Section publique]
58 O.R. (3d) 675
 O.J. No. 1249
Ontario Superior Court of Justice
March 13, 2002
* English version by the Centre for Translation and Legal Documentation (CTLD) at Ottawa University. Vous trouverez la version franaise de la dcision ci-dessus 58 O.R. (3d) 681.
Civil procedure — Settlement — Non-disclosure clause does not constitute implied condition of settlement — “Complete and final” release does not entail inclusion of non-disclosure clause.
The defendants made a comprehensive offer to settle two wrongful dismissal actions and four human rights complaints brought by the plaintiff. In consideration for the payment of $250,000, the plaintiff was to sign a “complete and final” release. The plaintiff accepted the offer. The exact content and wording of the release were not set out in the offer to settle. The defendants subsequently presented the plaintiff with a draft release containing a non-disclosure clause. The plaintiff objected to signing the non-disclosure clause and brought a motion for judgment in the terms of the offer to settle.
Held, the motion should be granted.
The non-disclosure clause was not an implied condition of the settlement reached between the parties. A “complete and final” release does not entail the inclusion of a non-disclosure clause. If a party wishes to insert a non-disclosure clause, it must be negotiated. The parties in this case never discussed the potential need for a non-disclosure clause before the offer to settle was accepted by the plaintiff.
Cases referred to
Cellular Rental Systems Inc. v. Bell Mobility Cellular Inc.,  O.J. No. 721 (Gen. Div.); Fieguth v. Acklands Ltd. (1989), 37 B.C.L.R. (2d) 62, 59 D.L.R. (4th) 114 (C.A.); Pukee v. Durham (Regional Municipality) Police Service,  O.J. No. 1587 (S.C.J.)
Rules and regulations referred to
Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 49.09
MOTION by a plaintiff for a judgment in terms of an offer to settle.
Pierre Champagne, for the plaintiff.
Nolle Caloren, for the defendant Conseil scolaire de langue franaise d’Ottawa-Carleton – Section publique.
 Endorsement of SEDGWICK J.: — This motion was heard in the Ottawa Motions Court. The plaintiff is a teacher. The defendant is the Eastern Ontario Public School Board, previously called the Ottawa-Carleton French-language School Board – Public Sector (hereinafter the “Board”). This administrative body was the plaintiff’s employer when the facts giving rise to this dispute took place.
 The plaintiff initiated two civil actions against the defendants in which he claims, inter alia, damages for wrongful dismissal as a result of his transfer from one position to another within the Board. The first action was commenced on May 7, 1993. The second one, i.e. the one before me now, was commenced on March 27, 1998. He also filed four complaints with the Ontario Human Rights Commission (hereinafter the “Commission”) in connection with the same matters arising from his employment as in the civil lawsuits.
 In a letter dated December 23, 1998, subsequently amended by a letter dated June 2, 1999, the defendants presented the plaintiff with a comprehensive offer to settle. The offer described in both of these letters provided, inter alia, for the payment to the plaintiff of an amount of $250,000 as general damages and as compensation for lost wages in full and final satisfaction for both civil lawsuits and the four complaints before the Commission. In consideration for this payment, the plaintiff was to sign a “complete and final” release. Neither letter makes any reference to the terms of such release. On June 30, 1999, the plaintiff’s attorney accepted the offer to settle on behalf of the plaintiff.
 The exact content and wording of the release were not stated in the letters dated December 23, 1998 and June 2, 1999. However, on November 19, 1999, the defendants presented the plaintiff with a draft release containing a non-disclosure clause worded as follows: In consideration for the above-mentioned payment, I acknowledge that the terms of this Release and of the related settlement are strictly confidential and, without restricting the generality of the foregoing, I undertake not to disclose or discuss directly or indirectly any of them with third parties. It is nevertheless agreed that said terms may be discussed with my legal and financial advisors where necessary, as well as with the immediate members of my family.
 In May 2000, having still not received any instructions from the plaintiff regarding the apportionment of the proceeds of the settlement, the Board prepared a motion under rule 49.09 [of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194] in order to obtain a judgment in the terms of the offer to settle accepted by the plaintiff. A copy of the release, which was identical to the one sent to the plaintiff on November 19, 1999, was filed with the court as part of the Board’s motion book.
 On July 6, 2000, Justice Charbonneau laid down the schedule that the plaintiff was to follow for the benefit of the defendants regarding: (1) the provision of instructions relating to the apportionment of the proceeds of the settlement in order for the defendants to pay to the plaintiff the funds agreed on under the settlement, and (2) the signing of a “complete and final release” following the payment of the funds. The order made no reference to the terms of the release as such.
 The plaintiff eventually provided the defendants with instructions for the apportionment of the amount of the settlement. Subsequently, on May 8, 2001, the defendants provided the plaintiff with a detailed proposal for the payments to be made under the settlement along with copies of the release to be executed by the plaintiff. The wording of the release was identical to the one sent to the plaintiff on November 19, 1999, including the non-disclosure clause (para. 4).
 The parties now all agree before me that the only point of contention is the inclusion of the non-disclosure clause in the release. The plaintiff objects to the inclusion of this clause, whereas the defendants argue that such clause is an implied condition of the settlement reached between the parties and that it is a reasonable one in the circumstances.
 There is no dispute as to the applicable law. Both parties rely on the pronouncement of Chief Justice McEachern in the case of Fieguth v. Acklands Ltd. (1989), 59 D.L.R. (4th) 114, 37 B.C.L.R. (2d) 62 (C.A.), at p. 121 D.L.R.: The next stage is the completion of the agreement. If there are no specific terms in this connection either party is entitled to submit whatever releases or other documentation he thinks appropriate. Ordinary business and professional practice cannot be equated to a game of checkers where a player is conclusively presumed to have made his move the moment he removes his hand from the piece. One can tender whatever documents he thinks appropriate without rescinding the settlement agreement. If such documents are accepted and executed and returned then the contract, which has been executory, becomes executed. If the documents are not accepted then there must be further discussion but neither is released or discharged unless the other party has demonstrated an unwillingness to be bound by the agreement by insisting upon terms or conditions which have not been agreed upon or are not reasonably implied in these circumstances.
 This principle enunciated above was followed in a number of decisions of this very court, namely in Cellular Rental Systems Inc. v. Bell Mobility Cellular Inc.,  O.J. No. 721 (Gen. Div.) (Chapnik J.); Pukee v. Durham (Regional Municipality) Police Service,  O.J. No. 1587 (S.C.J.) (C. Campbell J.). However, Justice Chapnik specifically observed about the role of a release:
It is well established that settlement implies a promise to furnish a release unless there is agreement to the contrary. On the other hand, no party is bound to execute a complex or unusual form of release: although implicit in the settlement, the terms of the release must reflect the agreement reached by the parties. This principle accords with common sense and normal business practice.
 When, on June 30, 1999, the plaintiff accepted the defendants’ offer to settle, the parties also agreed that the plaintiff would execute a “final and complete” release (para. 3) with no further details being discussed. The terms of the release must be in accord with the offer to settle that was accepted by the plaintiff. In my view, a “complete and final” release does not entail the inclusion of a non-disclosure clause. Such clause does not constitute by necessary implication a term of the settlement reached by the parties. The gist of a “complete and final” release is for the plaintiff to discharge the defendants (and other persons referred to therein) from any action, complaint, claim, indebtedness, etc. In my opinion, the non-disclosure clause is not part and parcel of a release. If one wishes to insert one, it must be negotiated. According to the evidence adduced, the parties never discussed the potential need for a non-disclosure clause before the offer to settle was accepted by the plaintiff on J une 30, 1999.
 The defendants allege that the inclusion of a non- disclosure clause is a common practice at the Commission. They blame the plaintiff for not having made his objections known regarding the inclusion of a non-disclosure clause to the defendants nor to the court in July 2000. In my view, based on the evidence adduced, these allegations have no relevance in the case at bar. Furthermore, the principle of non-admission of liability that was specifically raised in the offer to settle is not inconsistent with the lack of a non-disclosure clause.
 The plaintiff seeks a judgment in the terms of the offer to settle tendered by the defendants and accepted by the plaintiff, and the defendants seek an order requiring the plaintiff to execute a release as presented in Exhibit A to the affidavit of Sean McGee sworn on July 2, 2001. Unfortunately, this document was not filed with the court.
 Accordingly, the appropriate order to grant is a judgment in the terms of the offer to settle accepted by the parties. I have reviewed the release shown under Tab 2 of the motion book of the Board titled “Complete and Final Release” (attached hereto). In my view, this release (excluding the paragraph containing the non-disclosure clause) is reasonable and fair, and must be acceptable to the plaintiff. As a result, an order will issue requiring the plaintiff to execute a release in the form of the document attached hereto and titled “Complete and Final Release”.
 As for costs, if the parties cannot come to anagreement, they are invited to submit their written arguments within the next thirty (30) days.
COMPLETE AND FINAL RELEASE
IN CONSIDERATION for the payment of the amount of two hundred and fifty thousand dollars ($250,000.00), less the applicable statutory deductions, receipt of which is hereby acknowledged by myself as well as in consideration for other undertakings and amounts of fair and sufficient value, receipt of which is also hereby acknowledged by myself, I, the undersigned, ALFRED ABOUCHAR, on my own behalf and on behalf of my heirs, executors, administrators, successors and assigns, do hereby release and hold harmless for ever on the EASTERN ONTARIO PUBLIC SCHOOL BOARD (officially called the French-Language Public District School Board No. 59), its predecessors and successors, HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF ONTARIO, as represented by the Ministry of Municipal Affairs and the Ministry of Education and Training, their employees and agents, and without restricting the generality of the foregoing, do release forever on YVON FERRAND, LOUISE PINET, GHISLAINE REID, ROSAIRE LGER, JEAN COMTOIS, PAUL ROULEAU, ALAN WOLFISH, DREW NAMATH, MARIE-LOUISE CHARTRAND, ANU CHURCH, TOM MELVILLE, JOHN TOMLINSON, MURRAY LAWSON, MARIETTE CARRIER-FRASER, PIERRE-PHILIPPE REILLER, WAYNE BURTNYK, SHANE KENNEDY, MARTIAL LEVAC, RAYMOND CHNIER, CAROLINE DIGIOVANNI ET RAYMOND DESJARDINS, as well as their heirs, executors, administrators, successors and assigns from any action, cause of action, claim for damages, and from any complaint under the Ontario Human Rights Code, and do hereby waive any action, grievance, cause of action, right and debt of any kind resulting from my employment, my applications for employment, the termination of my employment with the Eastern Ontario Public School Board and its predecessor Boards, as well as any contribution and interest relating to the retirement fund that the Eastern Ontario Public School Board and Her Majesty the Queen in Right of the Province of Ontario may have made for my benefit as a result of my employment with the Eastern Onta rio Public School Board and its predecessor Boards, that are now in existence or could come into existence at a later date, namely, but without restricting the generality of the foregoing, those that are the subject-matter of the following complaints and actions:
1. Complaint No. 40-006W, filed on now identified as Complaint No. September E-285; 21, 1992, and
2. Complaint No. 40-007W, filed on now identified as Complaint No. September E-406; 29, 1992, and
3. Complaint No. 40-298W, filed on now identified as Complaint No. September E-345; 20, 1993, and
4. Complaint No. E-1593, filed on March 25, 1996;
5. the civil action filed in the Court of Ontario (General Division, now the Superior Court of Justice) under Registry No. 74326/93, including any proposed amendment thereto;
6. the civil action filed in the Court of Ontario (General Division, now the Superior Court of Justice) under Registry No. 98-CV-5389; or anything else related thereto in any manner.
I ALSO AGREE and undertake to hold harmless and indemnify the Eastern Ontario Public School Board in relation to any cost, levy, tax or penalty that could be claimed by Revenue Canada from the Eastern Ontario Public School Board for the purpose of recovering income tax for which I might be liable under the Income Tax Act (Canada) over and above any amount previously deducted from my salary; and in relation to any costs, levy, tax or penalty that could be claimed by or related to proceedings before the Employment Insurance Commission of Canada or the Pension Appeals Board of Canada to cover any amount that the Board may be liable in the future to pay in relation to myself, without prejudice to any right of appeal I may have.
I AGREE and accept furthermore that the Eastern Ontario Public School Board is duty bound to reimburse to the Employment Insurance Commission of Canada any benefit I may have received under the Employment Insurance Plan, and that the amount of such benefit shall be deducted with interest from the amount of $250,000 that constitutes the consideration of this release.
IN CONSIDERATION for the above-mentioned payment, I acknowledge that the terms of this Release and of the related settlement are strictly confidential and, without restricting the generality of the foregoing, I undertake not to disclose or discuss directly or indirectly any of them with third parties. It is nevertheless agreed that said terms may be discussed with my legal and financial advisors where necessary, as well as with the immediate members of my family.
I ALSO AGREE not to enforce against any third party any claim, action, complaint or debt relating to the subject- matters specified in this release or that are a part thereof, and which could trigger liability, in whole or in part, of the parties for the benefit of whom this release is granted.
I FURTHERMORE ACKNOWLEDGE that the settlement reached and the aforementioned payment do not constitute an admission of liability on the part of the parties for the benefit of whom this release is granted.
I ACKNOWLEDGE that I fully understand the terms of this release and also acknowledge that the abovementioned amount constitutes the only consideration for this release; I accept this amount willingly in order to settle once and for all any claim arising from the conduct of the respondent parties and defendants in connection with my employment with the Eastern Ontario Public School Board and its predecessors.
I HEREBY AUTHORIZE AND INSTRUCT the respondent parties and defendants to pay out the abovementioned consideration in the following manner:
TO: the attorneys for the respondent parties and defendants, in an interest-bearing account, the amount of $250,000 from which all applicable statutory deductions shall be levied at the time of transferring said amount to my legal advisors.
IN WITNESS THEREOF, I have signed this release on this day of May, 2001.
SIGNED AND DELIVERED in the presence of Witness