Edwards v. Canada (Attorney General), 2023 NSSC 67

SUPREME COURT OF Nova Scotia Citation: Edwards v. Canada (Attorney General) , 2023 NSSC 67 Date: 20230222 Docket: Kentville , No. 508864 Registry: Kentville Between: Rodger Edwards Applicant v. The Attorney General of Canada Respondent Judge: The Honourable Justice Gail L. Gatchalian Heard: December 7, 2022, in Kentville, Nova Scotia Counsel: Zeb Brown, for the Applicant Laura Rhodes, for the Respondent By the Court: Introduction [ 1 ] The parties to this Application agree that they reached a settlement agreement. However, they disagree on the terms of the release.

This is a motion by the Applicant, Rodger Edwards, under Civil Procedure Rule 10.04 for an order determining the terms of the release and an order enforcing the parties’ settlement agreement. [ 2 ] At one point, Mr. Edwards, a Jamaican citizen, had been working in Canada as a temporary foreign worker. Mr. Edwards was arrested and charged with certain criminal offences. As a condition of his release, he surrendered his Jamaican passport to the RCMP. Mr. Edwards was subsequently acquitted of all charges against him. When he then asked the RCMP to return his passport, they refused. Mr.

Edwards could not return to Jamaica without his passport. Mr. Edwards filed this Application against the Respondent, the Attorney General of Canada, seeking, at least in part, return of his passport and damages. [ 3 ] In the meantime, Mr. Edwards required emergency surgery in Nova Scotia. The Nova Scotia Health Authority billed him $18,297.50 for the medical treatment. The medical treatment would have been provided to Mr. Edwards free of charge in Jamaica. The RCMP eventually returned Mr. Edwards’ passport. Mr.

Edwards amended the Application to remove his request for return of the passport, and to add a claim for the $18,297.50 medical bill. [ 4 ] Mr. Edwards and the Attorney General settled the Application on the following basis: the Attorney General would pay Mr. Edwards $24,000 and Mr. Edwards would agree to pay the medical bill from the settlement funds. The promise to provide a release was implied: see Woodyer v. Sinanan , 1999 NSCA 74 at para.38, citing Cellular Rental Systems Inc. v. Bell Mobility Cellular Inc. , [1995] O.J. No.721 (Gen.Div.) at paras.23 and 24. [ 5 ] Mr.

Edwards says that he only agreed to release his claim relating to the RCMP’s refusal to return his passport. The Attorney General says that the release also included any claim that Mr. Edwards might have about the failure of the RCMP to investigate Mr. Edwards’ report that he had been assaulted by the father of the complainant in the criminal matter. [ 6 ] Mr. Edwards filed a separate complaint with the Civilian Review and Complaints Commission of the RCMP about the RCMP’s failure to investigate his report of an assault. On January 19, 2022, Mr.

Edwards and the RCMP reached an informal resolution of the complaint, whereby the RCMP agreed to conduct a thorough and timely investigation. To Mr. Edwards’ knowledge, not much has happened to advance the investigation. Mr.

Edwards is concerned that the release proposed by the Attorney General would prevent him from pursuing the Civilian Review and Complaints Commission complaint. [ 7 ] When the parties have agreed that a release will be executed, but the settlement agreement is silent as to the content of the release, the court will imply that the parties agreed to sign a standard form general release consistent with the settlement. See McMillan Estate v. Booth , 2021 NSSC 284 at para.13, citing Terranata Winston Churchill Inc. v.

Teti Transport Ltd. , 2020 ONSC 7577 at para.31; and see Woodyer , supra at para.38, citing Cellular Rental Systems Inc., supra at paras.23 and 24.

[ 8 ] In determining what terms fall within the scope of a standard release, the court takes the perspective of an objective bystander informed by the purpose of a release: see Terranata Winston Churchill Inc. , supra at paras.33 and 49. [ 9 ] The overarching purpose of a general release is to resolve all matters as between the settling parties arising from the subject matter of the claims released, and not only the causes of action pled: see Terranata Winston Churchill Inc. , supra at paras.39 and 48. [ 10 ] In order to determine the terms of the release impliedly agreed to by Mr.

Edwards and the Attorney General, I will consider the following: • the wording of the Notice of Application, and • the settlement negotiations, which are contained in emails between counsel. The Notice of Application [ 11 ] The Grounds for the Order in the Notice of Application consist of 19 paragraphs. Paragraphs 1 to 4 contain background facts. [ 12 ] In paragraphs 5 to 16 of the Grounds for the Order, Mr. Edwards focusses on the failure of the RCMP to return Mr.

Edwards’ passport after he was acquitted, and claims breaches of ss.7 and 8 of the Canadian Charter of Rights and Freedoms . [ 13 ] In paragraph 17, Mr. Edwards claims that the RCMP’s failure to return the passport is based on his Jamaican national origin, in breach of his equality rights guaranteed by s.15 of the Charter . In paragraph 17, Mr. Edwards states that this is a continuation of a pattern of discriminatory treatment of Mr. Edwards by the RCMP, and he refers to the failure of the RCMP to investigate his report of an assault. Paragraph 17 reads in full as follows: 17.

The RCMP’s treatment of the Applicant is wholly motivated by his Jamaican national origin and lacks any other rational basis and thereby constitutes a breach of the Applicant’s equality rights guaranteed by the Charter , s.15 . The RCMP’s discriminatory treatment of the Applicant continues a pattern whereby the RCMP has denied the Applicant equal protection and benefit of the law, the facts of which are as follows: i. The Applicant was the victim of a home invasion and brutal assault in 2019 that left him unconscious with a broken jaw. ii.

The Applicant reported the incident to the RCMP, and the RCMP was later provided with overwhelming evidence confirming the circumstances of the offence and the identity of the assailant. iii. Despite repeated inquiries between 2019 and 2021, the RCMP has taken no steps to investigate the complaint, which is a marked departure from its normal handling of complaints of similar criminal conduct. [ 14 ] In paragraph 18, Mr. Edwards claims damages for “[t]he Charter breaches,” stating that they are “ongoing, serious, intentional and egregious”. In paragraph 19, Mr.

Edwards claims that “[t]he RCMP’s conduct” is high-handed and contemptuous of the Nova Scotia Provincial Court, and deserving of rebuke. [ 15 ] When Mr. Edwards amended the Notice of Application, he also amended paragraph 17(iii) of the Grounds. Originally, that paragraph referred to repeated inquiries made of the RCMP regarding Mr. Edwards report of an assault between 2019 and 2021. Mr. Edwards amended the paragraph to refer to repeated inquiries made in 2019, 2021 and 2022. The Settlement Negotiations [ 16 ] On October 27, 2021, Heidi Collicutt, counsel for the Attorney General, asked Zeb Brown, counsel for Mr.

Edwards, whether Mr. Edwards would be interested in attempting to resolve “this matter” short of a hearing. She asked for Mr. Brown’s consent to adjourn the hearing of the Application without day in order to give the parties time to engage in settlement discussions. [ 17 ] Ms. Collicutt represented the Attorney General in relation to the Application. She was not involved in the Civilian Review and Complaints Commission complaint. [ 18 ] Mr. Brown responded on October 29, 2021, agreeing to the adjournment. [ 19 ] On December 6, 2021, Ms. Collicutt requested details about Mr.

Edwards’ employment in Canada from 2018 to 2021, including his income. [ 20 ] On January 5, 2022, Mr. Brown supplied some pay stubs from Mr. Edwards. On January 12, 2022, Mr. Brown informed Ms. Collicutt of the medical bill, and stated that the full amount of the bill would be added to the claim. [ 21 ] On January 28, 2022, Ms. Collicutt asked for details about the nature of the medical concern that resulted in the hospital bill,

and Mr. Edwards’ hourly wage with respect to the paystubs provided. [ 22 ] Mr. Brown responded on February 17, 2022 with Mr. Edwards’ hourly wage and stated that they had requested Mr. Edwards’ hospital records. [ 23 ] On March 10, 2022, Mr. Brown provided Mr. Edwards’ hospital records and a description of Mr. Edwards’ medical condition that required surgery. [ 24 ] On September 15, 2022, Ms. Collicutt offered to resolve “this matter” for $22,500, all inclusive, subject to “a release satisfactory to the [Attorney General],” and an assurance that the medical bill will be paid. [ 25 ] On September 15, 2022, Mr.

Brown stated that the Attorney General’s offer did not sufficiently account for Mr. Edwards’ legal costs. Mr. Brown made a counter-offer of $25,000, all inclusive, and an agreement that the medical expenses would be paid. Mr. Brown did not mention or respond to the Attorney General’s request for a release. [ 26 ] Ms. Collicutt responded on September 16, 2022, offering $24,000, all inclusive, in settlement of the claim. Ms. Collicutt did not mention a release in this email. [ 27 ] September 16, 2022, Mr. Brown responded, accepting the Attorney General’s counter-offer.

He did not mention a release. [ 28 ] Following the settlement reached on September 16, 2022, Ms. Collicutt forwarded a draft release for Mr. Brown’s review. The draft release would have Mr.

Edwards release the Attorney General and the RCMP: … from any and all actions, claims and demands for or by reason of any damage or harm which heretofore has been, or hereafter may be sustained, as a consequence of his arrest which occurred on or about the 17th day of July, 2019 in Kings County, Nova Scotia, more specifically described in an Application in Chambers filed in the Supreme Court of Nova Scotia bearing Court File Ken. No. 508864. [emphasis added] [ 29 ] The release also referred to the arrest on page 2, where Mr.

Edwards would declare and confirm that, among other things: The said sum is accepted voluntarily and for the purpose of making a full and final compromise, adjustment and settlement, of all claims for injuries and damages arising out of the July 17, 2019 arrest referenced above; [emphasis added] [ 30 ] Mr. Brown responded on September 20, 2022, stating that he was only instructed in relation to the surrender of the passport. Mr. Brown requested that the release be narrowed to refer only to the surrender of the passport. [ 31 ] On October 6, 2022, Ms.

Collicutt delivered a revised draft release that stated that Mr. Edwards would release the Attorney General from all actions, etc., sustained "as a consequence of the surrender of his passport when he was arrested on July 17, 2019 as well as his report of an assault that occurred on or about July 13, 2019 " (emphasis added). Similar language is repeated on page 2 of the draft release. [ 32 ] Mr. Brown responded on October 7, 2022, stating that Mr.

Edwards did not plead a cause of action in relation to the failure to investigate his report of an assault, and that the failure to investigate was only referenced in the Notice of Application as a previous unresolved instance of discriminatory treatment. Mr. Brown stated that the Civilian Review and Complaints Commission complaint is a separate, unresolved matter that should not be included in the release. [ 33 ] Ms. Collicutt responded on October 17, 2022, taking the position that Mr. Edwards had claimed damages for the failure to investigate in paragraphs 17 and 18 of the Notice of Application.

Determining the Terms of the Release Claims related to the failure of the RCMP to investigate [ 34 ] Taking an objective perspective, informed by the overarching purpose of a release, I conclude that the parties impliedly agreed that Mr. Edwards would release the Attorney General from any and all claims related to the subject-matter of the claims made in the Notice of Application. [ 35 ] While the Notice of Application focusses primarily on the failure of the RCMP to return the passport, paragraph 17 of the Notice, read objectively, includes an allegation that the failure of the RCMP to investigate Mr.

Edwards’ report of an assault constitutes discriminatory treatment contrary to s.15 of the Charter . From the perspective of a reasonable person, paragraph 17 of the Notice, in combination with the claim for damages for “the Charter breaches” in paragraph 18 of the Notice, placed the Attorney General on notice that Mr.

Edwards was advancing a claim for damages under the Charter arising from the failure of the RCMP to investigate. [ 36 ] In the absence of an agreement to the contrary, a standard form general release will be implied, releasing the Attorney General from any causes of action related to the failure of the RCMP to investigate.

[ 37 ] Taking an objective view of the evidence, the parties did not agree to carve out and settle the Charter claims related to the passport issue and subject the Attorney General to potential ongoing litigation with respect the investigation issue. The parties intended to settle the Application as a whole. Ms. Collicutt’s initial settlement overture was in relation to “this matter,” meaning the Application. She characterized the Attorney General’s initial monetary offer as “all inclusive.” Mr. Brown countered with an “all inclusive” monetary amount. Ms.

Collicutt’s counter-offer of “$24,000, all inclusive” was accepted. [ 38 ] It is true that the parties agreed that the bulk of the settlement funds would be used by Mr. Edwards to pay the medical bill, and payment of the medical bill flows from his claim that the RCMP breached his Charter rights by not returning his passport. Mr. Edwards points out that, after he pays the medical bill, legal fees and disbursements, he will be left with approximately $4450.

He says that this is in line with the range of damages awarded for passport-related Charter breaches. [ 39 ] However, the parties did not explicitly discuss the value they were placing on the Charter claims related to the passport issue. It may have been Mr. Edwards’ subjective intention to settle and therefore only release his claims related to the passport issue. Objectively, however, the evidence establishes that the parties intended to bring an end to the litigation against the Attorney General with respect to all causes of action related to the claims in the Application.

Those claims included the passport issue and the investigation issue. [ 40 ] I find that the settlement agreement between the parties included an implied term that Mr. Edwards would execute a standard general release in the form provided by Ms. Collicutt to Mr. Brown on October 6, 2022, in which Mr. Edwards would release the Attorney General from all actions, claims and demands for any damage or harm that Mr. Edwards has sustained or may sustain as a consequence of the surrender of his passport as well as his report of an assault.

The Civilian Review and Complaints Commission Complaint [ 41 ] I decline to go on and interpret the terms of the release impliedly agreed to by the parties to determine whether the release would prevent Mr. Edwards from pursuing his complaint with the Civilian Review and Complaints Commission. The parties did not adequately explain the Civilian Review and Complaints Commission process or its legislative underpinnings to the Court. They did not adequately address whether a Civilian Review and Complaints Commission complaint is an “action,” “claim” or “demand” for damage or harm.

This is a question best left for another day, when the parties are able to properly brief the court. Conclusion [ 42 ] The motion of Mr. Edwards is dismissed, with costs to the Attorney General in the amount of $750. The Attorney General shall prepare and file a draft order in accordance with Civil Procedure Rule 78.04(3). Gatchalian, J.