Buterman v Board of Trustees of the Greater St. Albert Roman Catholic Separate School District No. 734, 2016 ABQB 159

Court of Queen ’ s Bench of Alberta Citation: Buterman v Board of Trustees of the Greater St. Albert Roman Catholic Separate School District No. 734, 2016 ABQB 159 Date: 20160317 Docket: 1403 16635 and 1503 03297 Registry: Edmonton Between: Jan Buterman Appellant - and - The Board of Trustees of the Greater St. Albert Roman Catholic Separate School District No. 734 and Alberta Human Rights Commission (Tribunal) Respondents _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Donald Lee _______________________________________________________

Procedural Background [ 1 ] This matter involves two statutory appeals by Mr. Buterman from decisions by the Alberta Human Rights Tribunal (the Tribunal) pursuant to

section 37 of the Alberta Human Rights Act , R.S.A. 2000, c. A-25.5 (the Act ). [ 2 ] The first appeal was filed on November 14, 2014 and concerns a decision of the Alberta Human Rights Tribunal dated October 30, 2014 (the “October 2014 decision”). The decision was rendered by three members of the Tribunal and consists of a majority decision and a minority decision. [ 3 ] The second appeal was filed on March 4, 2015 and concerns a second decision of the same three member panel of the Alberta Human Rights Tribunal dated February 4, 2015 (the “February 2015 decision”).

This decision also consists of a majority and a minority decision with the same split between panel members. [ 4 ] The Appellant filed a Human Rights Complaint on October 1, 2009 against the Respondent alleging discrimination on the basis of gender and mental and physical disability. On October 14, 2008, the Appellant was dismissed from his position of substitute teacher because he was a transgendered person in the process of transitioning to his true gender.

He sought recognition of his true gender in the manner in which he would be addressed. [ 5 ] However, the Appellant was advised in writing that “In discussions with the Archbishop of the Edmonton Diocese, the teaching of the Catholic Church is that persons cannot change their gender. One’s gender is considered what God created us to be….

Since you have made a personal choice to change your gender, which is contrary to Catholic teachings, we have had no choice but to remove you from the substitute teaching list.” [ 6 ] The Complaint was dismissed on its merits by the Director of the Human Rights Commission on May 20, 2011 prior to the commencement of any investigation, but after the parties had exchanged positions in writing. The Appellant appealed that decision to the Chief of the Commission and Tribunals on June 27, 2011.

By decision dated July 16, 2012, the Chief of the Commission and Tribunals overturned the dismissal and referred the Complaint to the Tribunal. The Respondent sought judicial review of that decision. By decision dated January 8, 2014 the judicial review was dismissed by my colleague Justice Greckol in Greater St. Albert Roman Catholic Separate School, District No. 734 v. Buterman 2014 AJ No. 56 .

The matter was then referred to the Tribunal. [ 7 ] Prior to the commencement of the hearings on the merits before the Tribunal, the Respondent brought a motion that the Tribunal had no jurisdiction to hear the merits of the Complaint because the parties have entered into a binding contract of settlement. Before the hearing on the Respondent’s motion, the Appellant brought a motion objecting to Mr. Feehan or his law firm appearing on the settlement issue due to his personal involvement in the settlement discussions and correspondence.

By decision dated May 5, 2014, the Tribunal dismissed that motion. [ 8 ] The Tribunal held hearings on July 7, 8, and 9, 2014 into the Respondent’s motion, which decision was issued on October 30, 2014. This decision contains the reasons of the majority, and also the reasons of the dissenting minority member, of the Tribunal panel, and is the subject of the first appeal.

The Tribunal majority stated that it reserved jurisdiction until the conclusion of the decision. [ 9 ] Although there was the agreement of the parties to adjourn the matter and to stay any further steps pending the hearing of the first appeal, the Tribunal convened a hearing on December 3, 2014. The Tribunal issued a second decision on February 4, 2015. This decision again contains the reasons of the majority, and also the reasons of the dissenting minority member, of the Tribunal panel, and is the subject of the second appeal. [ 10 ]

Section 37 of the Act provides a right of appeal to the parties from an order of the Tribunal: 36 An order made by a human rights tribunal may be filed with the clerk of the Court of Queen’s Bench at the judicial centre closest to the place where the proceeding was held, and on being entered it is enforceable in the same manner as an order of the Court of Queen’s Bench. 37

(1) A party to a proceeding before a human rights tribunal may appeal an order of the tribunal to the Court of Queen’s Bench by application filed with the clerk of the Court at the judicial centre closest to the place where the proceeding was held. … 37(4) The Court may (

a) confirm, reverse or vary the order of the human rights tribunal and make any order that the tribunal may make under

section 32, or (

b) remit the matter back to the tribunal with directions. [ 11 ] Section 27(5) of the Act states that the decision of a majority of the Tribunal is the decision of the Tribunal. Factual Overview [ 12 ] Almost immediately after Mr. Buterman submitted his October 1, 2009 complaint to the Alberta Human Rights and Citizenship Commission alleging that he had been discriminated against by the Board of Trustees of the Greater St. Albert Catholic Separate School District No. 734 (“St. Albert Catholic”), on October 2, 2009 St.

Albert Catholic through Kevin Feehan, Q.C. of Fraser Milner Casgrain LLP, now Dentons, offered to make a settlement. An offer equivalent to $1,300 per month, retroactive to the date when Mr. Buterman's name was removed from the substitute teaching list, for a period of 5 years: [$1,300 x 12 months x 5 years =] totalling

$78,000 was made to Mr. Buterman’s then counsel. [ 13 ] In exchange for the payment, Mr. Buterman would agree to withdraw the Complaint, covenant not to advance any further Human Rights complaints or legal process in relation to the Complaint, and provide a release containing a confidentiality clause to St. Albert Catholic. On November 12, 2009, Mr. Buterman thru his the counsel Joel Michaud of Field LLP rejected the October 2, 2009 offer of St. Albert Catholic. [ 14 ] Almost a year later on September 8, 2010, Mr. Buterman through Mr. Michaud rejected a further offer by St.

Albert Catholic giving him employment as a substitute teacher for a guaranteed minimum 80 days during each of the 2010/2011 and 2011/2012 school years at the Night Wind Treatment Centre. However in the same letter Mr. Buterman’s counsel referenced the earlier offer, expecting that the offer would still be open for acceptance notwithstanding Mr. Buterman’s earlier rejection of it, and accepted the October 2, 2009 proposal as follows: Further to your letter of August 20. 2010, and our letter of August 25, 2010, Mr. Buterman has carefully reviewed your client’s latest proposal. While the proposal provides Mr.

Buterman with the opportunity to have direct contact with students to gain teaching experience, he is concerned that it maintains discriminatory treatment toward him. The most significant concern is that Mr. Butennan would be limited to teaching at the Night Winds Treatment Centre, which is not a school within the Greats St. Albert Catholic Regional Division (“GSACRD”). Accordingly, Mr. Buterman would continue to be prevented from substitute teaching in GSACRD’s schools. This is the central issue in Mr. Buterman’s complaint and one that is very important to him.

A reflection on the matter and consideration of the discussions with GSACRD over the last several months, it appears it will not be possible to come up with a resolution that provides Mr. Buterman with teaching experience and that addresses the central issue in his complaint. In view of this, and Mr. Buterman’s openness to reaching a fair and reasonable resolution, Mr. Buterman has instructed us to notify you that he is willing to accept the proposal put forward by GSACRD on October 2, 2009 according to which GSACRD would make a conciliation payment to Mr. Buterman in the amount of $78,000.

In view of GSACRD’s commitment to finding a fair and reasonable resolution, we expect that this offer is still open for acceptance notwithstanding Mr. Buterman’s earlier rejection of the offer. We would appreciate if you could confirm whether your client is still prepared to resolve Mr. Buterman’s complaint on this basis. Once we receive this confirmation, we can discuss the details of the settlement. If you have any questions or if you wish to discuss please do not hesitate to contact the writer. [Underlining Added] [ 15 ] On the same day, September 8, 2010, St. Albert Catholic advised Mr.

Buterman’s counsel that the offer of October 2, 2009 had remained open continuously from October 2, 2009, and it agreed to the acceptance of that offer on the following terms: We acknowledge your correspondence of September 8, 2010 in which you, on behalf of your client Jan Buterman, rejected our offer of employment to substitute, teach for a guaranteed minimum 80 days during each of the 2010/2011 and 2011/2012 school years at the Night Winds Treatment Centre, a residential care facility for aboriginal teens, located close to Legal, run by a for-profit organization which has contracted with St.

Albert Catholic Schools to be the non- denominational educational provider for the residence, providing staffing, supervision of staff, and provision of the educational component of this residential treatment facility as set out in my correspondence of August 20,2010. Thank you for your further advice, however, that your client was prepared to accept the offer of settlement made in my correspondence of October 2, 2009, providing that it was still open for acceptance at the present time.

We are pleased to advise that our offer of October 2, 2009 has remained open continuously from October 2, 2009 to present, and we agree that your client is entitled to accept that offer by your correspondence of September 8, 2010. For the purposes of certainty, the following is an extract from my correspondence of October 2, 2009, setting out the offer which has now been accepted : “ Please consider this as a formal offer for The Greater St. A1bert C.R.D. No.29 to pay to Jan Buterman the sum of S 78,000.00 in exchange for the following : 1. Withdrawal of the Human Rights Complaint of October 1, 2009; 2.

A covenant that no further Human Rights Complaint or legal process will be commenced after this date arising out of the circumstances by which Jan Buterrnan had (Jan Butcrman’

s) name removed from the substitute teaching list for The Greater St. Albert C.R.D. No. 29; and 3. Provision of a standard Release from Jan Buterman, containing a confidentiality clause prohibiting Jan Buterman from disclosing the existence or terms of the settlement with anyone other than (Jan Buterman’

s) legal counsel . We will provide you with a cheque payable to “Field LLP in trust” in the sum of $78,000.00, a draft covenant pursuant to paragraph 2 above and a draft release pursuant to paragraph 3 above shortly . In return, we look forward to official notification of the withdrawal of the Human Rights Complaint of October 1, 2009 . [Underlining Added] [ 16 ] On September 28, 2010, St. Albert Catholic advanced trust funds to its counsel in the sum of $78,000.00 to complete the Settlement Agreement. Correspondence was sent to counsel for Mr.

Buterman advising of these funds being held in trust, offering to structure these funds for maximum tax benefit, and providing first draft settlement documentation.

[ 17 ] On November 9, 2010, St. Albert Catholic again confirmed the $78,000.00 in trust, offered to structure that amount for tax purposes, and acknowledged a willingness to negotiate the settlement documentation language. [ 18 ] On January 4, 2011, a trust cheque was provided to counsel for Mr. Buterman, in the sum of $78,134.74 plus daily interest, and counsel for St. Albert Catholic again confirmed his willingness to negotiate settlement documentation language. [ 19 ] On January 7, 2011, counsel for Mr.

Buterman returned settlement funds pending finalization of the settlement documentation, and advised that there is only one issue to discuss: We are in receipt of your letter of January 4, 2011, enclosing a cheque payable to “Field LLP in trust” in the amount of $78,134.74, which our office received on January 6, 2011. It has taken longer than we expected to consider and discuss with our client issues arising from the draft settlement documentation. Further to my voicemail messages of January 6 and 7, 2011, there is one issue with respect to the settlement documentation that we want to discuss with you .

However, until agreement has been reached with respect to the settlement documentation, our client is not prepared to accept any settlement funds. Accordingly, we return to you the cheque drawn from your trust account made payable to “Field LLP in trust” in the amount of $78,134.74. [Underlining Added] [ 20 ] On March 18, 2011, counsel for Mr. Buterman advised that he had ceased to act for Mr. Buterman. [ 21 ] On April 7, 2011, St. Albert Catholic corresponded directly to Mr.

Buterman, now that he was no longer represented by legal counsel, advising that the amount of $78,134.74 was still in trust, and would be provided to Mr. Buterman pending his return of the settlement documentation. [ 22 ] On April 10, 2011, Mr. Buterman advised Postmedia News/Edmonton Journal that he had rejected the settlement offer of St. Albert Catholic due to the confidentiality clause contained in the release. St. Albert Catholic had not received any communication from Mr. Buterman in this regard directly. [ 23 ] On July 7-9, 2014, a hearing was held by the Tribunal on the preliminary application by St.

Albert Catholic for a determination as to whether the Tribunal had jurisdiction to hear the Complaint due to the fact that the parties had entered into the Settlement Agreement. [ 24 ] On October 30, 2014 the Tribunal rendered its decision on the preliminary application, which decision stated that the parties had reached a Settlement Agreement that remained executory, but if the parties were unable to conclude the settlement, the Tribunal would hear the Complaint beginning December 3, 2014. [ 25 ] On November 3, 2014 counsel for St. Albert Catholic sent new counsel for Mr.

Buterman correspondence indicating that he had instructions to provide the agreed upon sum of $78,000.00 plus interest, together with a draft Withdrawal, Covenant, and standard form of Release, as contemplated in the Settlement Agreement of September 8, 2010. Counsel for St. Albert Catholic also forwarded a form of order to be filed in the Court of Queen’s Bench of Alberta regarding the terms of the preliminary application as to jurisdiction. [ 26 ] On November 5, 2014, counsel for St. Albert Catholic forwarded a copy of the Withdrawal, Covenant, Release, and settlement funds cheque to counsel for Mr.

Buterman indicating that they were merely draft documents for discussion purposes, that St. Albert Catholic was open to negotiation and suggested word changes, and made it clear they were not rescinding the September 8, 2010 Settlement Agreement. [ 27 ] On November 6, 2014, both counsel agreed to adjourn and stay the discussions and hearings in this Complaint pending Mr. Buterman’s appeal of the Tribunal’s October 30, 2014 decision. [ 28 ] On November 14, 2014, counsel for St.

Albert Catholic was served with the Originating Application for a Notice of Appeal of the October 30, 2014 decision. [ 29 ] On November 17, 2014, counsel for Mr. Buterman wrote to the Tribunal indicating that Mr. Buterman had filed a Notice of Appeal of the decision, requested that the Tribunal adjourn the hearing scheduled for December 3, 2014, and accept the agreement of the parties to stay further steps regarding the Tribunal’s decision pending the outcome of the appeal. [ 30 ] On November 17, 2014, the Tribunal had also written wrote to counsel for Mr. Buterman and counsel for St.

Albert Catholic regarding the scheduled hearing dates in December, 2014 and how best to use such dates. [ 31 ] On November 18, 2014, counsel for St. Albert Catholic wrote to the Tribunal and counsel for Mr. Buterman confirming that the hearing on the merits would be adjourned, and that all further steps would be stayed pending the appeal. On November 18, 2014, counsel for Mr. Buterman reaffirmed her request for an adjournment pending appeal. [ 32 ] On November 21, 2014, the Tribunal wrote to both counsel regarding their request for an adjournment pending appeal.

The Tribunal noted that the Alberta Court of Appeal decision of Syncrude Canada Ltd. v. Alberta (Human Rights and Citizenship Commission) and Devinder Wadhwa , 2008 ABCA 217 stated that the Act does not contemplate multiple appeals and that only a final or binding decision could be appealed to the Court of Queen’s Bench. The Tribunal asked for argument from both parties regarding the request for an adjournment based on the Syncrude analysis. [ 33 ] On November 24, 2014, counsel for St. Albert Catholic wrote to counsel for Mr. Buterman and the Tribunal indicating that

although previous correspondence with counsel for Mr. Buterman had asked for some settlement documentation, namely the request for a Withdrawal, Covenant and Release, St. Albert Catholic had decided that it would waive all requirements for those documents and that the settlement had been concluded. Counsel for St. Albert Catholic took the position that since Mr. Buterman was provided with the compensation required according to the Settlement Agreement, and given that St. Albert Catholic had waived all conditions with respect to the delivery of that compensation to Mr.

Buterman, the Settlement Agreement, which had been executory, had now been executed. [ 34 ] On November 26, 2014, counsel for St. Albert Catholic wrote to the Tribunal and counsel for Mr. Buterman advising that the tendering of settlement funds to Mr. Buterman was not done with the intention of St. Albert Catholic to make the appeal moot, prejudice the appeal in any manner, or bind the complainant to a separately enforceable contract regardless of the outcome of the appeal. Counsel for St. Albert Catholic agreed with counsel for Mr.

Buterman’s November 21, 2014 letter that it did not appear there was anything further the Tribunal needed to address, pending the appeal. [ 35 ] On November 28, 2014, the Tribunal wrote to both counsel asking them to attend on December 3, 2014 as scheduled. [ 36 ] On December 3, 2014, counsel for Mr. Buterman and St. Albert Catholic appeared in front of the Tribunal to make oral submissions regarding the issue of whether Mr.

Buterman could proceed with his appeal of the October 2014 decision notwithstanding that there had not been a hearing on the merits. [ 37 ] On February 4, 2015, the Tribunal majority determined that it had no remaining jurisdiction over the Complaint due to the fact that the parties had entered into the Settlement Agreement, and the Settlement Agreement had been fully executed. The Tribunal majority found that as a result of the Settlement Agreement having been executed, “the effect in law was that Mr. Buterman relinquished his complaint in favour of a settlement.” [ 38 ] On March 4, 2015, counsel for St.

Albert Catholic was served with the Originating Application for a Notice of Appeal of the February 4, 2015 decision under the Act to this Court. Issues [ 39 ] What is the standard of review from a decision of the Alberta Human Rights Tribunal? [ 40 ] Was the Tribunal without jurisdiction to address the hearing on the merits of Mr.

Buterman’s Complaint because the parties had already entered into the Settlement Agreement? [ 41 ] Did the Tribunal exceed its jurisdiction when it remained seized of the Complaint at the conclusion of the October 2014 decision? [ 42 ] Did the Tribunal act outside its jurisdiction when it called and held the hearing on December 3, 2014 and rendered the February 2015 decision? Standard of Review [ 43 ] The Applicant submits that the standard of review is correctness, whereas the Respondent and the Tribunal counsel submit that it is reasonableness. [ 44 ] In Mouvement laique quebecois v.

Saguenay (City) , 2015 SCC 16 (“ Saguenay ”) all eight members of the Supreme Court of Canada, in the context of a review of a decision by the Quebec Human Rights Tribunal, again stated recently that the standard of review for a statutory appeal of an administrative tribunal such as the Alberta Human Rights Tribunal is the same as the standard of review for judicial review of an administration tribunal.

This is evident from paragraph 38 of Saguenay which reads: [38] …Where a court reviews a decision of a specialized administrative tribunal, the standard of review must be determined on the basis of administrative law principles. This is true regardless of whether the review is conducted in the context of an application for judicial review or of a statutory appeal ( Association des courtiers et agents immobiliers du Quebec v. Proprio Direct inc. , 2008 SCC 32 , [2008], 2 S.C.R. 195, at paras 13 and 18-21 ; Dr. Q v.

College of Physicians and Surgeons of British Columbia , 2003 SCC 19 , [2003] 1 S.C.R. 226, at paras 17 , 21, 27 and 36; Law Society of New Brunswick v. Ryan , 2003 SCC 20 , [2003] 1 S.C.R. 247, at paras 2 and 21 ; Canada (Deputy Minister of National Revenue – M.N.R.) v. Mattel Canada Inc . , 2001 SCC 36 , [2001] 2 S.C.R. 100, at para 27 ). [Underlining Added] [ 45 ] An alternate view is expressed in a recent Alberta Court of Appeal decision in a Municipal Government Act matter involving the Assessment Review Board, Edmonton East (Capilano) Shopping Centres Ltd. v.

Edmonton (City) 2015 ABCA 85 , at paragraph 24 : 24 This appeal presents either an addition to or a variation of the four "presumptive" categories. As noted, the "polar star" of the analysis is legislative intent. The fact that the Municipal Government Act was amended in 2010 to replace the Municipal Government Board with the Court of Queen's Bench is a strong indication that the legislature intended the superior courts to have a significant and direct role in

interpretation of the taxing statute. McLean at para. 33 noted this link to legislative intent: That is so because the choice between multiple reasonable

interpretations will often involve policy considerations that we presume the legislature desired the administrative decision maker -- not the courts -- to make. Indeed, the exercise of that interpretative discretion is part of an administrative decision maker's "expertise". (Emphasis in original)

Where the Legislature has specifically provided for a right of appeal to the ordinary courts, the Legislature clearly intended that theadministrative decision maker make the initial decision, subject to review by the court. As pointed out in Pushpanathan at para. 43(quoted supra, para. 21), if a correctness review is not applied, this legislative scheme makes little sense.

The presence of a statutoryright of appeal may not invariably signal a correctness standard of review, but it is clearly enough to displace any presumption thatreasonableness applies. [Underlining Added] [46] However since the Supreme Court of Canada has not yet accepted that a statutory right of appeal clearly rebuts thereasonableness presumption, and because it has granted leave to appeal this Alberta Court of Appeal decision [see 2015 SCCA No. 161],decided before Saguenay was released, I will be following the Supreme Court of Canada’s most recent decision in this regard inSaguenay. “Reasonableness” it was held is the standard of review although it is a rebuttable presumption based on certain factors, whichfactors are as stated in paragraphs 45-50 of Saguenay: a. that the applicable standard of review depended “primarily on the nature of the question being raised; b. that deference was required when the tribunal acts within its area of expertise, interprets its enabling legislation and applies thatlegislation to the facts to determine whether discrimination exists (citing other cases in which it had applied the reasonableness standardof review in the human rights context Saskatchewan (Human Rights Commission) v.

Whatcott, 2013 SCC 11 (Whatcott) at paras 166-168 and Canada (Canadian Human Rights Commission) v. Canada (Attorney General) 2011 SCC 53 (Mowat) paragraph 24); c. the presumption of reasonableness can be rebutted where a contextual analysis indicates that the legislature has “clearly intended”not to protect the tribunals’ jurisdiction in relation to certain matters.

The existence of concurrent and non-exclusive jurisdiction asbetween the Courts and the Tribunal at first instance on a point of law may be a factor in determining legislative intention; d. it is important to resist the temptation to apply the correctness standard to all questions of law of general interest that are broughtbefore the Tribunal; e. the scope of the state’s duty of religious neutrality attracted the correctness standard as the question was broad and it wasimportant to decide the issue in a manner consistent with “the principles that have been developed in relation to the application of theCanadian Charter…” (paragraph 68).

Further, the jurisdiction the legislature conferred on the Quebec Human Rights Tribunal wasintended to be non-exclusive and exercised concurrently at first instance with that of the ordinary courts; g. however, the question of whether the religious prayer was discriminatory, as well as issues surrounding the qualification ofexperts and the assessment of evidence should not have been assessed according to the correctness standard (paragraph 50). [47] Quebec (Commission des droits de la personne et des droits de la jeunesse) v.

Bombardier Inc. (Bombardier AerospaceTraining Center), 2015 SCC 39 (Bombardier), also in the human rights context, recently referred to the principles set out in Saguenayon standard of review. The Court in Bombardier confirmed that legal tests and standards of proof are reviewable on a correctnessstandard, but that the application of the test within a particular context is subject to reasonableness: [69] …Thus, although the nature of the evidence that is presented may vary from case to case, the “legal test” does not change.

Whatcan vary are the circumstances that might make it possible to meet the requirements of the various elements of the analysis, and thecourts must adopt an approach that takes the context into account. [emphasis added] [48] An application of the Dunsmuir factors, again as emphasized in Saguenay, point to the reasonableness standard of reviewbeing applied to the issues on this appeal.

In Dunsmuir 2008 SCC 9 at paragraphs 51-61 the Supreme Court of Canada identified thefollowing categories where the standard of correctness applies: a. a constitutional issue; b. a question of "general law 'that is both of central importance to the legal system as a whole and outside the adjudicator'sspecialized area of expertise"; c. the drawing of jurisdictional lines between two or more competing specialized tribunals; and d. a "true question of jurisdiction or vires". [49] Notably, a statutory right of appeal is not listed here. [50] Nor is a statutory right of appeal contained in Rothstein, J’s categories of questions warranting a correctness review in hismajority decision in Alberta (Information and Privacy Commissioner) v Alberta Teachers’ Association, 2011 SCC 61 , 2011 3SCR 654 at paragraph 30 which reads: 30 ...

There is authority that "[d]eference will usually result where a tribunal is interpreting its own statute or statutes closelyconnected to its function, with which it will have particular familiarity" (Dunsmuir, at para. 54; Smith v. Alliance Pipeline Ltd., 2011SCC 7, [2011] 1 S.C.R. 160, at para. 28, per Fish J.). This principle applies unless the

interpretation of the home statute falls into one ofthe categories of questions to [page674] which the correctness standard continues to apply, i.e., "constitutional questions, questions oflaw that are of central importance to the legal system as a whole and that are outside the adjudicator's expertise, ... '[q]uestions regardingthe jurisdictional lines between two or more competing specialized tribunals' [and] true questions of jurisdiction or vires" (Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2011 SCC 53, [2011] 3 S.C.R. 471, at para. 18, per

LeBel and Cromwell JJ., citing Dunsmuir, at paras. 58, 60-61). [Underlining Added] [51] On the other hand, reasonableness is normally the governing standard where the question: a. relates to the

interpretation of the tribunal's enabling (or "home") statute or "statutes closely connected to its function, withwhich it will have particular familiarity"; b. raises issues of fact, discretion or policy; or c. involves inextricably intertwined legal and factual issues. [52] The Appellant argues that clearly the matter before the Tribunal in July 2014 was whether they had jurisdiction to hear thematter given the settlement, which is a true issue of jurisdiction. However the Supreme Court has yet to rule on any “true” jurisdictionalquestion in any human rights case.

Therefore the Tribunal’s assessment of mixed questions of law and fact, that is the application andfindings of which may ultimately impact the Tribunal’s jurisdiction, are not “true” questions of jurisdiction. [53] The Supreme Court recently in ATCO Gas and Pipelines Ltd. v.

Alberta (Utilities Commission), 2015 SCC 45 (ATCO Gas)emphasized that true jurisdictional questions are rare: [27] …This Court’s recent jurisprudence has emphasized that true questions of jurisdiction, if they exist as a category at all, an issueyet unresolved by the Court, are rare and exceptional: Alberta (Information and Privacy Commissioner) v.

Alberta Teachers’Association, 2011 SCC 61, [2011] 3 S.C.R. 654, at para. 34. [54] The Appellant also argues that the Tribunal was making conclusions with respect to contract law and the settlement ofdisputes, outside of its home statute, thereby attracting the correctness standard. [55] This is correct to a certain extent, however the Tribunal has the implicit power to determine questions of general law and indoing so, determine the extent of its own jurisdiction. In Chow v.

Mobil Oil Canada, 1999 ABQB 1026 (Chow) Rooke, J (as he thenwas) was asked to examine several reference questions involving the role of the Tribunal in assessing settlements and releases. Quotingfrom the Supreme Court in Cooper v. Canada (Canadian Human Rights Commission); Bell v.

Canada (Canadian Human Rights Commission), (SCC), [1996] 3 S.C.R. 854, 140 D.L.R. (4th) 193, Rooke, J. stated at paragraph 93 that the SupremeCourt had found that the power to consider questions of law can be bestowed on an administrative Tribunal either explicitly or implicitlyby the legislature and that the Canadian Human Rights Tribunal, as an adjudicative body, had the jurisdiction to deal with questions oflaw: … However, unlike the Commission, it is implicit in the scheme of the Act that a tribunal possess a more general power to deal withquestions of law. … [full quote from Cooper referenced by Rooke J not included] [56] Rooke, J then went on to state in Chow: [94] In applying the legal principles from these cases to the matter at hand, I find that, as the adjudicative body under the Act, a Panelhas the jurisdiction to determine questions of law, whereas the Commission and the Director do not.

Accordingly, if the complainantreasonably challenged the validity of the release, I am of the opinion, based on these cases which are binding on me, that under thecurrent wording of the Act, only an adjudicative body, such as a Panel, can determine the issue. Under s. 28(1)(a), a Panel may alsodetermine whether a complaint is without merit, but it has the authority to hear, determine and weigh evidence.

Therefore, I find that aPanel can determine a question of law, such as whether a release is valid. [emphasis added] [57] The Appellant takes issue with the Tribunal’s findings regarding when an offer was made, when the offer was accepted andwhether a binding contract was formed. The Appellant relies on the dissenting opinion of the Tribunal regarding the

interpretation ofcorrespondence between the parties, and the weight given to witness testimony.

However I conclude that this disagreement is in essenceabout the evidence and facts as found by a majority of the Tribunal, and accordingly is subject to the reasonableness standard. [58] The Appellant interprets the October 30, 2014 decision of the Tribunal as finding that there was a binding SettlementAgreement that ousted the jurisdiction of the Tribunal, and that they ordered specific performance, which they had no “jurisdiction” toorder in its home statute. [59] However I conclude that the decision of the majority of the Tribunal to remain seized of the matter does not trigger a questionof “true” jurisdiction, but rather it engages discretionary decisions regarding process, and findings of facts or mixed fact and law, andfurthermore the majority did not order specific performance as such.

Application of the Dunsmuir Factors - Conclusion [60] Therefore the issues on this appeal do not involve pure questions of general law extricable from the important factual matrix(Saguenay), and as such the standard of review is reasonableness.

Similar examples of this are found in Johnson v Canada (AttorneyGeneral), 2007 FCJ No. 1323 and in Palmer v Canada (Attorney General), 2013 FCJ No. 426. [61] The Appellant distinguishes Johnson from the present situation, but I conclude that the distinctions drawn are not of anysignificance, so that an assessment of the “nature of the question” analysis points towards deference and reasonableness.

[ 62 ] Furthermore while I accept that on balance the factor of “expertise’ as part of the Dunsmuir analysis should be assessed as “neutral”, and while the Tribunal’s expertise in contract law is not greater than that of a Court, the Tribunal does have expertise namely in assessing possible Settlement Agreements in human rights complaints. [ 63 ] While the issues in this appeal do not involve a direct

interpretation of the Tribunal’s home statute, the issues do engage the Tribunal’s expertise related to general fact finding, and more specifically fact finding within the context of Settlement Agreements in human rights issues.

The Tribunal regularly hears issues relating to releases and settlements. [ 64 ] In Walsh v Mobil Oil Canada , 2013 ABCA 238 ` the Alberta Court of Appeal accepted that the Tribunal regularly assessed the application of finality principles in the human rights context, and took this into consideration when ultimately deciding that deference was owed. [ 65 ] There is a full right of appeal under the Act and no privative clause, which factor weighs towards less deference.

However as I have discussed, the Supreme Court has stated in Dunsmuir and in Saguenay that a right of statutory appeal, while part of the contextual assessment, is not determinative. Further while the main purpose of the Tribunal is to adjudicate on human rights, which are of quasi constitutional status, the Supreme Court of Canada has specifically directed that simply because the issue involves human rights does not mean that the correctness standard should be applied : Mowat. [ 66 ] On balance then when considering (

a) the Dunsmuir analysis, (

b) the direction from Sagenuay that the standard of review depends “primarily on the nature of the question” (paragraph 45), and (

c) that the Supreme Court of Canada recently stated that true jurisdictional questions are rare ( Atco Gas ), if they exist at all, I conclude that the issues on this appeal support a standard of review of reasonableness. [ 67 ] The Tribunal has implicit powers to determine questions of law and thus an inquiry into whether or not a settlement in a human rights matter occurred falls under its statutory authority. The issues on this appeal involve fact, or mixed fact and law.

Accordingly the decision of the majority Tribunal decision should be accorded deference. [ 68 ] I conclude that the standard of review pertaining to all of the issues raised by the Appellant is reasonableness. Specifically the appropriate standards of review, relevant to the issues raised on this appeal, are: a. Reasonableness as to the majority Tribunal decision of October 30, 2014 that “…the parties reached a settlement of Mr. Buterman’s human rights complaint on September 8, 2010. It remains for the parties to determine the outcome of their executory Settlement Agreement.” b.

Reasonableness as to the Tribunal’s majority decision of October 30, 2014 that “the parties before the Tribunal are at the stage of documenting their Settlement Agreement. Neither party has insisted on the execution of the documents in any particular form.” and at paragraph 71 that the Tribunal “…will remain seized of this matter pending that outcome and to permit it to address any further issues that may arise in the execution of the Settlement Agreement.” c.

Reasonableness as to the Tribunal’s majority decision of February 4, 2015 at paragraph 21 that “The Tribunal is without jurisdiction to proceed further with Mr. Buterman’s human rights complaint. The executory settlement as found by the majority in the Tribunal’s decision of October 30, 2014 has been full executed.” (Question of mixed fact and law). Grounds of Appeal a. There was no offer and acceptance of any Settlement Agreement; b. There was no final agreement or “meeting of the minds” on the essential terms of the settlement, and the terms were not certain; c.

If there was an agreement, it was repudiated by the Appellant; d. The agreement was unconscionable in any event and therefore unenforceable; e. The Tribunal had no jurisdiction to reserve jurisdiction and recall the parties, or to make further rulings as it did. [ 69 ] The Appellant requests the following relief: a. An Order reversing the majority of the Tribunal decision dated October 30, 2014; b. An Order that there is no binding settlement between the parties and therefore the Tribunal had jurisdiction to hear the Complaint of the Appellant on its merits; c.

An Order that the Tribunal had no jurisdiction to reserve jurisdiction in its decision of October 30, 2014; d. An Order that the hearing held on December 3, 2014 and decision of the Tribunal dated February 4, 2014 were done in the absence of any jurisdiction to do so and are thereby quashed in their entirety; Offer and Acceptance [ 70 ] The Appellant submits that it is incorrect and unreasonable to conclude that a question asked by Mr. Buterman’s then counsel on September 8, 2010 as to whether an offer was still open amounts to objective evidence of an intention to accept that offer.

Furthermore it is submitted that the September 8, 2010 letter cannot be reasonably construed to mean that the Appellant wished to conclude a binding contract only on the terms set out in the October 2, 2009 letter, when his then lawyer’s letter clearly states the contrary, that is that the Appellant wanted to discuss the balance of the settlement terms if the money was still on the table. [ 71 ] The Appellant also argues that the incorrectness of the majority Tribunal conclusion that there was a binding contract of settlement contained by the Appellant’s then counsel’s September 8, 2010 letter is underscored by the fact that the majority also suggested that in the alternative that that letter could be construed as an offer and the Feehan letter construed as an acceptance.

It is submitted that there is no basis for such a conclusion and that one cannot conclude that the same document can be both an offer and an acceptance, given that there was clearly no meeting of the minds formed on September 8, 2010.

As the minority decision pointed out, Michaud’s letter was a piece of correspondence narrowing the issues for any potential settlement, and the essential terms of which had not finally been agreed upon. [ 72 ] I do not agree with the Appellant’s submission that the majority’s conclusion means that the September 8, 2010 Michaud letter created a binding contract on both parties, even if the Respondent had replied “No, the offer was rejected and therefore is not available for acceptance at this time”. Clearly there would have been no settlement if the Appellant’s then counsel had said that. Instead Mr.

Buterman’s counsel did say: “...Mr. Buterman has instructed us to notify you that he is willing to accept the proposal put forward by [St. Albert Catholic] on October 2, 2009 according to which [St. Albert Catholic] would make a conciliation payment to Mr. Buterman in the amount of $78,000. In view of [St. Albert Catholic’s] commitment to finding a fair and reasonable resolution, we expect that this offer is still open for acceptance notwithstanding Mr.

Buterman’s earlier rejection of the offer.” [ 73 ] Although a rejection of an offer generally destroys the offer, an offer can be continued or revived based on the conduct of the parties. In this regard, it is noteworthy that the parties engaged in lengthy settlement negotiations for a considerable period of time between the November 12, 2009 rejection by the Appellant of the St. Albert Catholic offer, and the Appellant’s September 8, 2010 letter. St.

Albert Catholic did not indicate a formal “expiry date” of the October 2, 2009 offer, and it never indicated that it wished to rescind the offer or be freed of the offer if or when it was rejected. [ 74 ] The further correspondence between the two counsel evidenced that both parties shared the common goal of reaching a settlement. Once counsel for Mr. Buterman communicated that he was “willing to accept the proposal put forward by St. Albert Catholic on October 2, 2009”, and St.

Albert Catholic advised that the October 2, 2009 offer “has remained open continuously from October 2, 2009 to present”, it is clear to me by the conduct of the parties that the October 2, 2009 offer had been continued or revived, and accepted. [ 75 ] St. Albert Catholic never formally withdrew the October 2, 2009 offer, and St. Albert Catholic’s intention was always to come to a fair and reasonable settlement. Therefore a valid offer was communicated to Mr. Buterman, and although it was initially rejected, once Mr. Buterman accepted the original offer, St.

Albert Catholic confirmed that it was still open for acceptance on September 8, 2010. [ 76 ] In this case, based on the actions of the parties, and the two September 8, 2010 letters, there was offer and acceptance. [ 77 ] Alternatively, if Mr. Buterman’s initial rejection of the October 2, 2009 offer did destroy St. Albert Catholic’s offer, and the offer was not revived, Mr. Buterman’s letter of September 8, 2010 was an offer or counter-offer on the same terms as “the proposal put forward by [St. Albert Catholic] on October 2, 2009”. [ 78 ] The September 8, 2010 letter sent by Mr.

Buterman communicated an intention to enter into an agreement with St. Albert Catholic on essential and certain terms, the terms earlier proposed by St. Albert Catholic on October 2, 2009. St. Albert Catholic then accepted the offer on September 8, 2010 by communicating via letter that “the October 2, 2009 offer has remained open continuously from October 2, 2009 to present, and we agree that your client is entitled to accept that offer by your correspondence of September 8, 2010.” [ 79 ] Therefore even if the October 2, 2009 offer was initially destroyed and not continued or revived, Mr.

Buterman made an offer, or counter-offer, on September 8, 2010 to enter into a Settlement Agreement with St. Albert Catholic on the terms set out in the October 2, 2009 letter, which was accepted by St. Albert Catholic and communicated to Mr. Buterman via letter. [ 80 ] In both cases, the parties had a valid offer and acceptance of offer. The Tribunal majority reasonably found that there had been offer and acceptance, or alternatively counter-offer and acceptance, of the terms set out in St. Albert Catholic’s October 2, 2009 letter. [ 81 ] The Tribunal minority stated that: “[91] Looking firstly at Mr.

Michaud’s letter, within the four corners of the document, I would construe it as: • We are not able to agree on a teaching assignment for Mr. Buterman so we will give up on that. • However, if a $78,000 payment to Mr. Buterman (as set out in the October 2, 2009 offer letter) is still an available option to resolve this matter, we have instructions to accept that amount. • We need your confirmation. Once confirmed we need to discuss and agree to the details of the settlement.” [ 82 ] However the letter from Mr. Buterman’s counsel states: Mr.

Buterman has instructed us to notify you that he is willing to accept the proposal put forward by [St. Albert Catholic] on October 2, 2009 according to which [St. Albert Catholic] would make a conciliation payment to Mr. Buterman in the amount of $78,000. [ 83 ] The letter further states that Mr. Buterman is willing to accept the proposal put forth by St. Albert Catholic on October 2,

2009. It does not say that Mr. Buterman is simply willing to accept $78,000, with other terms yet to be determined. Even if the

interpretation of the letter by the Tribunal minority decision is correct, there has still been an offer, or counter-offer, by Mr. Buterman for $78,000 in settlement of the claim. This was not a mere inquiry as the wording in the letter is unequivocal that Mr. Buterman accepts the proposal and the amount. Then later on September 8, 2010, St. Albert Catholic accepted Mr. Buterman’s offer to settle the Complaint. Consideration [ 84 ] Mr. Buterman has conceded that “consideration” is not an issue in these proceedings.

Certainty of Terms and Breach of Contract [ 85 ] The Appellant argues that although the majority of the Tribunal found a binding contract of settlement was formed on September 8, 2010, they did not consider the question of certainty of terms or the evidence before it in that regard in its analysis.

Without a determination that the terms are certain, it is not possible the Appellant submits to conclude in law that there is a binding contract and the Tribunal erred or made an unreasonable decision when it did so. [ 86 ] The Appellant points out that the minority of the Tribunal considered the questions of what were the essential terms of the contract and were the terms certain, and she found that there was no final agreement on essential terms and that the terms were not certain.

The tribunal minority member found that there was no basis upon which a meeting of the minds could be established, using the objective bystander approach outlined in Lacroix. [ 87 ] The Appellant argues that surely four years later when looking at whether or not there is a legally binding contract, at least the party advocating that there is a legally binding contract and the decision maker which finds such legally binding contract exists, should be able to articulate the exact terms of the contract that is binding on the parties.

This is particularly so when the binding contract of settlement is found to oust the jurisdiction of the Tribunal to hear a quasi-constitutional human rights complaint. [ 88 ] The Appellant argues that, as the minority of the Tribunal found, the evidence of the Respondent’s witnesses on what the essential terms of the contract was unclear, and was at great odds from what was set out in the October 2, 2009 offer. At paragraph 100 of her Decision, the minority member notes that Mr. Keohane testified that the terms set out in the settlement documents tendered by the Mr.

Feehan with his letter of September 28, 2010 (the “Written Documents”) had been approved by the Board St. Albert Catholic and that any changes to those documents would require Board approval to be accepted. It is submitted that the minority member correctly and reasonably concluded that the terms set out in the Written Documents were essential to the contract from the Respondent’s perspective. [ 89 ] According to the Appellant, when one reviews the Written Documents and compares them to the October 2, 2009 letter, it is obvious that the terms are significantly different, including: a.

The Written Documents required that the Appellant provide a covenant that he would not to ever in future file a human rights complaint against a great number of additional parties – in fact all educational institutions or perhaps just all Catholic educational institutions in Alberta (which group was not clearly explained in the evidence) - than just the Respondent. A significant number of parties were being added to the bargain. b.

The covenant also applied to any kind of action regarding virtually any future discrimination that the Appellant might suffer relating to mental disability, physical disability, gender or being transgendered in any fact situation. c. The release also covered any kind of action available presently or in future on the grounds of mental disability, physical disability, gender or being transgendered. d. The confidentiality agreement gagged the Appellant so that he could not discuss or speak about any aspect of his complaint that he had been discriminated against to any person including his own family, ever.

The confidentiality was in no way limited to just terms of the settlement. [ 90 ] The Appellant submits that there is a difference between “papering”, “documenting” or reducing the terms of the contract to writing and the formation of the contract. The terms of a contract must be certain regardless of the details of “papering” the deal. [ 91 ] However I conclude that the October 2, 2009 settlement offer contained the following terms certain: a. a payment of $78,000 from St. Albert Catholic to Mr.

Buterman; b. withdrawal of the Human Rights complaint of October 1, 2009; c. a covenant that no further Human Rights complaint or legal process would be commenced after this date arising out of the circumstances by which Mr. Buterman’s name was removed from the substitute teaching list for St. Albert Catholic; and d. provision of a standard release from Mr. Buterman, containing a confidentiality clause prohibiting Mr.

Buterman from disclosing the existence of the settlement with anyone other than legal counsel. [ 92 ] The Tribunal majority decision did consider the question of the essential terms of the Settlement Agreement in its decision, at paragraph 29 of the October 2014 decision: “… for the respondent to pay a stated sum of money in exchange for Mr. Buterman’s withdrawal of the human rights complaint of October 1, 2009, a promise given by Mr. Buterman to GSACRD [St. Albert Catholic] not to pursue any legal process arising out of his

removal from the substitute teaching list, a release of the respondent from liability for the events underlying the complaint, and anagreement by Mr. Buterman to keep the matter confidential by not disclosing the existence or the terms of settlement to anyone otherthan his counsel”. [93] The Tribunal minority decision stated that there had been no certainty of terms because the wording of the withdrawal letter,release and confidentiality clause had not been agreed upon. [94] However the correspondence from St. Albert Catholic to Mr. Buterman of October 2, 2009 specifically contained termsstipulating that Mr.

Buterman would withdraw the Complaint, provide a covenant, and sign a standard release containing aconfidentiality clause. Therefore it was within the contemplation of the parties that Mr. Buterman would sign some form of withdrawal,covenant, and release confidentiality clause when accepting St. Albert Catholic’s offer on September 8, 2010. [95] Further as pointed out by the Tribunal majority, the evidence from the witnesses for St.

Albert Catholic made it clear that theyhad provided no particular instructions as to the content of the covenant and release, and they left the work of documenting thesettlement to the expertise of counsel. Therefore the Tribunal minority’s opinion that there was no certainty of terms because of thecontent of the settlement documentation is not consistent with the evidence of the St. Albert Catholic witnesses, is largely irrelevant. [96] St. Albert Catholic provided Mr. Buterman with an initial draft form of the settlement documentation on September 28, 2010.On November 9, 2010 St.

Albert Catholic confirmed that Mr. Buterman’s lawyer could make certain minor alterations to the settlementdocumentation that would not fundamentally change the Settlement Agreement of September 8, 2010, and for that purpose draftsettlement documents were provided in Word format. However on March 18, 2011 St. Albert Catholic was informed that Mr.Buterman’s counsel had withdrawn from representing Mr. Buterman, and on April 10, 2011 St. Albert Catholic learned via PostmediaNews/Edmonton Journal that according to Mr.

Buterman the settlement was off because of the request for a confidentiality agreement. [97] There was no indication from Mr. Buterman prior to April 10, 2011 that the substance of the settlement documentation wasunacceptable. [98] Mr. Buterman argues that the wording of the settlement documentation constituted a breach of contract because the clauseswere too broad, too restrictive, or were a change as to what had been agreed.

However the existence of settlement documentation was anexpress term of the Settlement Agreement, and the provision of a form of settlement documentation was not a breach of the SettlementAgreement, but rather arguably was a fulfillment of the Settlement Agreement. [99] I conclude that the Settlement Agreement had not been repudiated, or breached, due to the presence of a confidentiality clause,as it was an essential term of the original agreement, however harsh the Appellant believed it was.

The Settlement Agreement hadcrystalized even though the settlement documents had yet to be finalized, and the wording and extent of the confidentiality clause wasstill open for negotiation by the Appellant. [100] The Tribunal majority found reasonably, based upon the evidence at the hearing, that there had been certainty of terms betweenthe parties. Had a Settlement Agreement been Reached Notwithstandingthat the Settlement Documentation had not been finalized? [101] Both the Appellant and St. Albert Catholic agree that Fieguth v.

Acklands Ltd. (1989) 37 BCLR (2d) 62, (BCCA) is the leading case with respect to documenting or “papering” a settlement. The B.C. Court of Appeal dealt with the validity of aSettlement Agreement in an action with respect to a wrongful dismissal complaint.

The plaintiff in Fieguth argued that there was nobinding Settlement Agreement between the parties because there was no evidence of any discussion or agreement by the parties on thefollowing necessary elements of a settlement: a. the terms of any release which the Appellant may have required the Respondent to execute and deliver; b. the method of payment of funds; c. the timing for payment of funds; d. method of dealing with income tax implications, if any; and e. any requirement of the Appellant for an indemnity agreement for the Respondent [102] The B.C.

Court of Appeal considered and rejected the plaintiff’s arguments: a. it was an implied term of the agreement that the employer was entitled to a release of the claim for wrongful dismissal which hadbeen put forward in earlier correspondence; b. in the case of a routine settlement of this kind negotiated between lawyers, no agreement on the method of payment would benecessary.

That proposed by the plaintiff's lawyer in his letter of acceptance was in accordance with usual practice although, because ofthe provisions of the Income Tax Act, only the net after deducting the mandatory 20 per cent could properly be paid; c. payment within a reasonable time after acceptance could be implied; d. the present provisions of the Income Tax Act appeared to leave no room for discussion of "tax implications". If the plaintiff and hisadvisors believed there was some way in which the transaction could be structured so as to avoid liability for tax, it was for them to

propose that rather than accepting the offer was made, which was a basis of calculation which undoubtedly would give rise to tax; and e. the defendant, not having stipulated for an indemnity agreement, was not entitled to anything of the kind. [ 103 ] Therefore the B.C.

Court of Appeal found that there was a binding Settlement Agreement notwithstanding that the form and substance of the settlement documentation had not been finalized. [ 104 ] In Fieguth , the British Columbia Court of Appeal specifically addressed the issue of a dispute over settlement documentation and held that such a dispute does not amount to a repudiation of the settlement, but should be resolved by application to the Court or negotiation between the parties: [35] In these Complaints it is necessary to separate the question of formation of contract from its completion.

The first question is whether the parties have reached an agreement on all essential terms. There is not usually any difficulty in connection with the settlement of a claim or action for cash. That is what happened here and as a settlement implies a promise to furnish a release and, if there is an action, a consent dismissal unless there is a contractual agreement to the contrary, there was agreement on all essential terms. [36] 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 party 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. ... [39] But, on the facts of this case, the settlement contract remained on foot and I see no possibility of either party contending that the settlement contract had been terminated. ... [44] It should not be thought that every disagreement over documentation consequent upon a settlement, even if insisted upon, amounts to a repudiation of a settlement.

Many such settlements are very complicated, such as structured settlements, and the deal is usually struck before the documentation can be completed. In such cases the settlement will be binding if there is agreement on the essential terms. When disputes arise in this connection the question will seldom be one of reputation as the test cited above is a strict one, but rather whether a final agreement has been reached which the parties intend to record in formal documentation, or whether the parties have only reached a tentative agreement which will not be binding upon them until the documentation is complete.

Generally speaking, litigation is settled on the former rather than on the latter basis and parties who reach a settlement should usually be held to their bargains. Subsequent disputes should be resolved by application to the court or by common sense within the framework of the settlement to which the parties have agreed and in accordance with the common practices which prevail amongst members of the bar.

It will be rare for conduct subsequent to a Settlement Agreement to amount to repudiation.” [ 105 ] The Appellant submits that, assuming that the Appellant had become a party to a binding contract of settlement on September 8, 2010, he accepted the repudiation of the contract when the Respondent tendered and insisted on the terms set out in the written documents.

The Appellant submits that the Written Documents bear little resemblance to the terms of the October 2, 2009 letter, which the majority of the Tribunal “expressly declined to evaluate to determine whether they exceed the terms of the Settlement Agreement”. It is submitted that this is a fundamental error in terms of both considering the issue of certainty of contract and the issue of whether the Respondent effectively repudiated the contract.

As determined by the minority Tribunal member, the evidence before the Tribunal from the Respondent’s witnesses was unequivocal that the Respondent required the Written Documents to be executed as they were tendered, that it required the terms set out in those documents to be part of the Settlement Agreement (regardless of the fact that the witnesses could not fully articulate their meaning), and that the St.

Albert Catholic Board had approved those documents and would need to approve any changes. [ 106 ] Furthermore the Appellant point out that after several months from September, 2010 to April 2011, the lawyers for the parties had been unable to agree to the terms of the deal, and when the Appellant’s legal counsel withdrew from the file, the Respondent’s counsel sent him a letter dated April 7, 2011 with the exact same Written Documents attached. That correspondence stated that there is a binding contract of settlement and that the Appellant must sign and return the Written Documents.

There is no suggestion that there is any room for negotiation. [ 107 ] However on November 5, 2014, I note that counsel for St. Albert Catholic forwarded a copy of the Withdrawal, Covenant, Release, and settlement funds cheque to the current counsel for Mr. Buterman indicating that they were merely draft documents for discussion purposes, that St. Albert Catholic was open to negotiation and suggested word changes, and made it clear they were not rescinding the September 8, 2010 Settlement Agreement. [ 108 ] I also conclude that St. Albert Catholic reached a binding settlement with Mr.

Buterman as of September 8, 2010 because there was offer, acceptance, consideration and essential term certainty. St. Albert Catholic did not add extra terms or alter the terms of the October 2, 2009 offer when it sent Mr. Buterman the documentation on September 28, 2010, and settlement funds on January 4, 2011. The exact form and substance of the settlement documentation had yet to be concluded, however, the settlement had already crystalized prior to Mr. Buterman’s press interview stating that he had rejected the settlement. [ 109 ] In Mr.

Buterman’s case, it was an express term of the settlement offer that there would be a release containing a confidentiality clause. St. Albert Catholic did in fact present a standard form release containing a confidentiality clause to Mr. Buterman. Once Mr. Buterman read the release and confidentiality clause and found it too broad or too restrictive, the remedy would have been to propose

changes to the form of release, not to unilaterally determine that he was no longer a party to the Settlement Agreement. [ 110 ] The Settlement Agreement between the parties had concluded because all of the essential terms of the Agreement had been agreed upon. There were no “missing terms” in the Agreement. The provision of a release containing a confidentiality clause was an essential term of the contract. The wording in the release or the confidentiality agreement was not an essential term, and was open to negotiation.

As the settlement between the parties had crystalized, there had been a settlement of the Complaint. Although the settlement documentation had yet to be concluded, that did not affect the validity of the Settlement Agreement reached between St. Albert Catholic and Mr. Buterman. Had St. Albert Catholic Repudiated the Settlement Agreement due to the Contents of the Settlement Documentation? [ 111 ] The settlement offer contained a term which stated: “Mr. Buterman to sign a standard Release containing a confidentiality clause prohibiting Mr.

Buterman from disclosing the existence or terms of the settlement to anyone other than legal counsel.” Mr. Buterman accepted the offer on September 8, 2010 and St.

Albert Catholic provided the first draft of settlement documentation, with a request for comments, on September 28, 2010 (the “Draft Release”). [ 112 ] The Draft Release contained a confidentiality clause prohibiting discussion about the settlement as well as: ...my Alberta Human Rights complaint...(and)...my complaint that I have been the subject of discrimination in the areas of employment refused and termination of employment, or on the grounds of mental disability, physical disability, physical disability or gender, arising out of or in any way connected with my diagnosis of being transgendered or my undergoing a treatment plan with the goal of sex reassignment... [ 113 ] The provision of a release containing a confidentiality clause was an express term of the original Settlement Agreement.

The Draft Release was provided by St. Albert Catholic to Mr. Buterman’s counsel along with an invitation for comments. Even if the settlement documentation had exceeded the terms of the Settlement Agreement, it was submitted with a request for comments. Therefore St. Albert Catholic’s actions should be viewed as a willingness to work towards completion of the Settlement Agreement and not a repudiation of the Settlement Agreement. [ 114 ] St. Albert Catholic expected there to be ongoing discussions with Mr.

Buterman regarding the exact wording of the release, however, its provision of the Draft Release containing terms allegedly outside the scope of the Settlement Agreement did not amount to a repudiation of the Settlement Agreement. [ 115 ] At no time did St. Albert Catholic demonstrate its unwillingness to be bound by the Settlement Agreement. As stated in Fieguth : “it will be rare for conduct subsequent to a Settlement Agreement to amount to repudiation”. In this case, St. Albert Catholic provided a Draft Release for comment by Mr. Buterman and his counsel.

The terms set out in the Draft Release were reasonably implied from the Settlement Agreement, and even if they all were not, it was Mr. Buterman’s remedy to discuss the contents of the Draft Release further, and not to treat the Settlement Agreement as repudiated. [ 116 ] St. Albert Catholic did not repudiate the Settlement Agreement due to its conduct or the contents of the Draft Release, and it at all times was willing to conclude the Settlement Agreement and be bound to the contract. Did Mr.

Buterman Communicate Acceptance of the Alleged Repudiation? [ 117 ] The Appellant argues that the evidence is that the Respondent’s officers learned via the Appellant’s statements in the media, that he was “rejecting the settlement” in the words of Mr. Keohane, or that it was being “repudiated” in the words of Mr. Caron. As the minority Tribunal member concluded, there can be no doubt that the Respondent was insisting on terms that were not part of the October 2, 2009 letter and further that the Appellant clearly communicated his refusal to accept the new terms clearly to the Respondent.

The Appellant submits that if there was a contract, it was repudiated and brought to an end at least by April of 2010. [ 118 ] However I conclude that Mr. Buterman did not establish the required communication of acceptance of St. Albert Catholic’s alleged repudiation. Mr. Buterman did not direct correspondence to St. Albert Catholic advising of his choice to treat the Settlement Agreement as repudiated. The party accepting the repudiation is bound to do something by way of explicit and unequivocal conduct to inform the repudiator that his choice has been made. [ 119 ] In this case, Mr.

Buterman had accepted the Settlement Agreement on September 8, 2010. The first draft of the settlement documentation was provided to Mr. Buterman’s counsel on September 28, 2010. However it was not until April 10, 2011 that St. Albert Catholic learned of the alleged acceptance of the apparent repudiation when Mr. Buterman advised Postmedia News/Edmonton Journal that the settlement was off because of the request for a confidentiality agreement. [ 120 ] This alleged acceptance of the alleged repudiation was not clear and unequivocal conduct to inform St. Albert Catholic that Mr.

Buterman’s choice to accept the alleged repudiation had been made because it was not made directly to St. Albert Catholic, and it was not done in a timely manner. [ 121 ] Therefore the Settlement Agreement was still in full force and effect. St. Albert Catholic had, at all times maintained that they have reached a binding Settlement Agreement with Mr. Buterman, and did not act in a manner that would suggest to an objective observer that St. Albert Catholic did not wish to be bound by the Settlement Agreement.

Unconscionable Contract [122] Although this argument was only referred to in passing before the Tribunal, the Appellant now submits that this Court shoulddetermine that even though I have found there is a binding contract of settlement that was not repudiated, I should exercise my discretionto disregard it on the basis of public policy. The Appellant argues that St. Albert Catholic in its written documents was insisting onunconscionable terms, or at minimum, unenforceable terms. These terms included asking the Appellant to give up potential futurehuman rights complaints not only as against St.

Albert Catholic but as against a myriad of entities who are strangers to this case whichwould compromise the Appellant’s human rights, which are fundamental quasi constitutional rights. [123] However I conclude that the terms of the October 2, 2009 letter were not unconscionable, from the economic/mathematicalprospective since the amount of $78,000 represented five years of substitute teaching income for Mr. Buterman, a substitute teacher. Inexchange, St.

Albert Catholic wanted settlement documentation and a withdrawal of the Complaint against it. [124] I am sympathetic to the Appellant’s argument that the wording of this settlement documentation was so broad as to beunconscionable. But a confidentiality clause regarding the settlement would be of no effect if Mr. Buterman was allowed to discuss thecontent of his complaint against St. Albert Catholic.

Also broadly worded restrictions such as not speaking to other family members oreven his own children, would likely never have been enforceable in any event, so it is difficult to see how they would have beenunconscionable given their unenforceability. [125] Furthermore it was reasonable that Mr. Buterman would not be allowed to re-launch a complaint arising out of the same subjectmatter, namely his removal from the substitute teaching list, against other Alberta Catholic school boards since their policies would besimilar, or the same. Otherwise, Mr.

Buterman would be able to launch multiple Human Rights complaints on the same grounds againstevery Catholic school board in the Province who did not hire him as a substitute or full-time teacher during his transition. [126] Once again, I conclude that some of the more draconian terms could have and should have been negotiated out of thedocumentation, or they were unenforceable in reality so as to be of no great importance. Given the uniform/similar practices and preceptsof Catholic school boards throughout the Province, the restrictions against Mr.

Buterman aimed at preventing him from relaunching hiscomplaint against them were reasonable in the circumstances. Did the Tribunal exceed its jurisdiction when it remained seized of the Complaint atthe conclusion of the October 2014 decision? [127] In the October 2014 decision, the Tribunal found that the parties reached a Settlement Agreement in September 2010 and itremained executory, to be completed by documentation.

The Tribunal also determined, as the master of its own process, that it couldremain seized of the Complaint until such a time as the parties completed the Settlement Agreement, or if they were unable to do so,there would be a hearing on the merits. [128] The Appellant argues that the tribunal found a “binding contract of settlement”, however the October 2014 decision was clearthat the Settlement Agreement was “executory” and remained for the parties to execute, if they were able to do so.

Therefore theTribunal had not found on October 30, 2014 that it had lost its jurisdiction with respect to the Complaint. [129] The Appellant further argues that after finding a binding contract of settlement which ousted the Tribunal’s jurisdiction to hearthe case on the merits of the complaint, the majority purported to remain seized of the matter and effectively required specificperformance of the binding settlement it found to exist.

This, it is submitted by the Appellant, the Tribunal had no jurisdiction to do sincethere are no provisions in the Act that would give the Tribunal such powers. [130] However I conclude that the Tribunal was not insisting on specific performance of the Settlement Agreement, but rather simplyretaining jurisdiction until such time as the Settlement Agreement was finalized, if the parties were able to do so. The Tribunal majoritywas trying to assist the Appellant to conclude an agreement that it reasonably found had been made, so Mr. Buterman could receive his$78,000.00.

Moreover it may well have been “unreasonable” for the Tribunal to determine that the Settlement Agreement had not yetbeen executed, and then cease its involvement in the complaint. [131] The Supreme Court of Canada stated in Prasad v Canada (Minister of Employment and Immigration), (SCC), 1989 1 S.C.R 560 at paragraph 46 that administrative tribunals are the masters in their own house, such that in the absence ofspecific rules laid down by statute or regulation, they control their own procedures, subject to the proviso that they comply with the rulesof fairness and, where they exercise judicial or quasi-judicial functions, the rules of natural justice.

I conclude that the Tribunal majorityhas complied with the rules of fairness and natural justice in this matter. [132] The October 2014 decision was with respect to a preliminary application regarding jurisdiction, and was not a hearing on themerits.

As it was a preliminary application, the Tribunal is to be given considerable latitude with respect to its procedures and process asstated by the Supreme Court of Canada in Prasad. [133] Although the Tribunal found there had been a Settlement Agreement, as the agreement had not yet been executed, it had not yetlost its jurisdiction with respect to the Complaint on the merits.

The election by the Tribunal to remain seized of the matter wasreasonable in the circumstances, given the finding that the executory Settlement Agreement was not yet executed. [134] The Tribunal had not exceeded its jurisdiction when it remained seized of the Complaint at the conclusion of the October 2014decision. The Tribunal elected to retain jurisdiction until such a time as the Settlement Agreement became executed, if the parties wereable to do so.

The Tribunal did not exceed its jurisdiction by remaining seized of the matter because its October 2014 decision clearlystated that the Settlement Agreement was executory, not yet concluded, and so the Tribunal had not yet lost its jurisdiction.

Did the Tribunal act outside its jurisdiction when it called and held the hearing on December 3, 2014 and rendered the February 2015 decision? [ 135 ] The issue that arose in the December 2014 hearing, leading to the February 2015 decision, was whether the Tribunal had any residual jurisdiction with respect to the Complaint, pending appeal. The Tribunal wanted submissions from the parties regarding whether Mr.

Buterman was able, at that stage, to appeal the October 2014 decision on the basis of the then recently decided Alberta Court of Appeal’s decision in the Syncrude case. [ 136 ] I conclude that since the Tribunal had retained jurisdiction over the matter, the December 2014 hearing and February 2015 decision were necessary in order to determine whether the Settlement Agreement had evolved from “executory” to “executed”, and their purpose was therefore to confirm that the Tribunal no longer had jurisdiction with respect to the Complaint.

Conclusion [ 137 ] Having concluded that the standard of review pertaining to all of the issues raised by the Appellant is reasonableness, I find that the Tribunal majority has met that standard relevant to the issues raised on this appeal specifically: a. The majority Tribunal decision of October 30, 2014 that “…the parties reached a settlement of Mr. Buterman’s human rights complaint on September 8, 2010. It remains for the parties to determine the outcome of their executory Settlement Agreement” is reasonable. b.

The Tribunal’s majority decision of October 30, 2014 that “the parties before the Tribunal are at the stage of documenting their Settlement Agreement. Neither party has insisted on the execution of the documents in any particular form.” and at paragraph 71 that the Tribunal “…will remain seized of this matter pending that outcome and to permit it to address any further issues that may arise in the execution of the Settlement Agreement” is reasonable. c. The Tribunal’s majority decision of February 4, 2015 that “The Tribunal is without jurisdiction to proceed further with Mr. Buterman’s human rights complaint.

The executory settlement as found by the majority in the Tribunal’s decision of October 30, 2014 has been full executed” is reasonable. [ 138 ] “Reasonableness” in this context means the Tribunal majority reasons support their conclusions. Deference allows the Court to supplement the Tribunal’s reasoning as long as their reasoning, taken as a whole, is tenable. The tribunal majority reasons in this case allow me to understand how it made its decisions and they are sufficient. I determine that their conclusions are within the range of acceptable outcomes.

In this regard, I am following the Supreme Court of Canada’s definition of “reasonableness” as found in Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board) , 2011 SCC 62 at paragraphs 12 and 16 ; and in Law Society of New Brunswick v. Ryan , 2003 SCC 20 at paragraphs 55 and 56 . [ 139 ] The Tribunal has implicit powers to determine questions of law and thus an inquiry into whether or not a settlement occurred falls under its statutory authority. The issues on this appeal involve fact, or mixed fact and law.

Accordingly, the decision of the majority Tribunal should be accorded deference. [ 140 ] Mr. Buterman’s appeal of the October 2014, and February 2015 decisions of the Tribunal are dismissed. Heard on the 15 th and 16 th day of October, 2015. Dated at

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