LaFayette v. Municipality of Saanich Police Department and others, 2024 BCHRT 222
Date Issued: July 31, 2024
File: CS-000189
Indexed as: LaFayette v. Municipality of Saanich Police Department and others,
2024 BCHRT 222
IN THE MATTER OF THE HUMAN RIGHTS CODE,
RSBC 1996, c. 210 (as amended)
AND IN THE MATTER of a complaint before
the British Columbia Human Rights Tribunal
BETWEEN:
Faye LaFayette
COMPLAINANT
AND:
Municipality of Saanich Police Department and Sukhdeep (Deep) Atwal and Mathew Jones
RESPONDENT
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Section 27(1)(d)(ii)
Tribunal Member: Ijeamaka Anika
Counsel for the Complainant: Peter T. Busch
Counsel for the Respondents: Marcia McNeil
I INTRODUCTION
[1] Faye LaFayette is a Black, Afro-Canadian woman. She filed a complaint with the Tribunal on January 20, 2020, alleging that the Municipality of Saanich Police Department, Sukhdeep Atwal, and Mathew Jones [the Respondents] discriminated against her on the grounds of race, colour, and mental disability contrary to s. 8 of the Human Rights Code . She says that the Respondents failed to address her complaints of harassment by her neighbours adequately and that the Respondents also harassed her because of her race and mental disability.
[2] The Respondents apply to dismiss the complaint under s. 27(1)(d)(ii) of the Codebecause, they say, the parties entered into a valid settlement agreement. The Respondents say that they proposed terms of a settlement, and that Ms. LaFayette’s former legal counsel agreed to those terms on her behalf. They argue that allowing Ms. LaFayette’s complaint to proceed in these circumstances does not further the purposes of the Code.
[3] There is no dispute that Ms. LaFayette’s former lawyer told the Respondents that she agreed to their proposed terms of settlement. However, Ms. LaFayette says she did not instruct her former counsel to settle, and the purported settlement agreement is unfair. Therefore, she says, her complaint should proceed to a hearing.
[4] In this application, I must decide whether there is a valid settlement agreement and, if so, whether it furthers the purposes of the Codeto allow the complaint to proceed.
[5] For the following reasons, I deny the application to dismiss the complaint. I find that a valid settlement agreement exists. However, I find it does not further the purposes of the Codeto dismiss the complaint.
[6] To make this decision, I have considered all the information filed by the parties. In these reasons, I only refer to what is necessary to explain my decision.
II BACKGROUND
[7] On January 20, 2020, Ms. LaFayette filed a complaint against the Respondents. On March 15, 2022, the parties met for an early settlement meeting [mediation], facilitated by a Tribunal mediator. Both parties were represented at the mediation. Ms. Lafayette was represented by an articling studentunder the supervision of legal counsel, and the Respondents were represented by legal counsel.
[8] I set out details of the parties’ settlement discussions in this decision. Usually, this information is protected by settlement privilege. However, Ms. LaFayette relied on those communications, and the Respondents did not object to their admission. This is consistent with the legal principles that the parties may waive privilege and that protected communications may be admissible to the extent necessary to prove the existence or scope of a settlement agreement: Union Carbide Canada Inc. v. Bombardier Inc., 2014 SCC 35 at paras. 35 and 54; A and B obo Infant A v. School District C (No. 3), 2017 BCHRT 217 at para. 27.
[9] The Respondents say that, during the mediation, the parties agreed to settle all the issues raised in the complaint. Ms. LaFayette disputes this. She says she only agreed to review a draft settlement agreement, that legal counsel would provide her with a draft for her review, and that she would accept or reject the terms.
[10] There is very little information before me about what happened during the mediation. The Respondents say that Ms. LaFayette raised concerns about her interactions with by-law officers employed by the District of Saanich. The District of Saanich is not a party to this complaint. The Respondents say the parties discussed the possibility that the District of Saanich would be interested in reaching a resolution similar to Ms. LaFayette’s resolution with the Respondents. Ms. LaFayette says the complaints against the by-law officers were never intended to be part of the draft settlement. Beyond this information, no other details of what was said or purportedly agreed to at the mediation are before me.
[11] Following the mediation, the Respondents said they reduced to writing the settlement terms that the parties agreed to at mediation. They emailed Ms. LaFayette’s legal counsel at 4:52 pm on the day of the mediation with the subject line “Draft Settlement.” Among other things, the draft settlement stated that the Respondents would pay for a counsellor of Ms. LaFayette’s choosing, up to the sum of $5,000 for her and her family, and the Saanich Police Board would review all of Ms. LaFayette’s police files from 2012 to 2022 and any new files up to March 2025. In exchange, the draft said Ms. LaFayette would withdraw her complaint and release the Respondents from claims under the Codeor arising out of her complaint. The Respondents also say they included a clause to potentially settle Ms. LaFayette’s complaints against the District of Saanich [clause 7].
[12] Ms. LaFayette spoke with the articling student at 5:14 pm on the same day. Ms. LaFayette says she told the articling student that she was too exhausted to discuss settlement that day. However, at 5:33 pm, her legal counsel sent an email to the Respondents stating:
I confirm that I am instructed to agree to the terms of settlement set out below, with the amendment of clause 5(c) to specify claims up to February 15, 2022.
[13] At 5:35 pm, the articling student emailed Ms. LaFayette the draft agreement. In the cover email, the articling student stated:
Please see below agreement which was just confirmed. We’ll receive a more detailed version, setting out specifics of how the counselling can be billed, in the days to come.
[14] The following day, Ms. LaFayette responded to the articling student’s email. She said she needed to rest and would get back to them. The next day, Ms. LaFayette emailed the articling student that she was not “willing to settle the matters generally.” In her email, Ms. LaFayette agreed to settle the part of the complaint regarding being pulled over by the police but not her allegations that the police mishandled her complaints about her neighbours. She also informed the articling student that she did not agree to include clause 7 in the settlement.
[15] On March 19, 2022, the articling student emailed Ms. LaFayette to say that the complaint had been settled according to Ms. LaFayette’s instructions, except for clause 7.
[16] On March 24, 2022, legal counsel emailed Ms. LaFayette. It is unclear what, if anything, transpired between Ms. LaFayette and her representatives between March 19 and March 24, 2022. However, in the March 24, 2022, email, legal counsel asked whether they had sufficiently answered Ms. LaFayette’s questions and concerns that she raised after the mediation. Legal counsel also informed Ms. LaFayette that the Respondents were waiting for a response on whether they could proceed with implementing the settlement agreement.
[17] The same day, the Respondents emailed Ms. LaFayette’s legal counsel to advise that the District of Saanich was interested in pursuing the settlement on the terms discussed during the mediation and was looking at the logistics of the proposed review.
[18] On April 25, 2022, the Respondents emailed Ms. LaFayette’s legal counsel to query whether Ms. LaFayette wished to adopt clause 7 as part of the mediation agreement. Legal counsel informed the Respondents that they had yet to receive instructions regarding clause 7.
[19] On June 17, 2022, Ms. LaFayette’s legal counsel informed the Respondents and Tribunal that they no longer represented Ms. LaFayette. For this dismissal application, Ms. LaFayette is represented by new counsel.
III DECISION
[20] Section 27(1)(d)(ii) allows the Tribunal to dismiss a complaint where proceeding with it would not further the purposes of the Code. These purposes include both private and public interests: s. 3. Deciding whether a complaint furthers those purposes is not only about the interests in the individual complaint. It may also be about broad public policy issues, like the efficiency and responsiveness of the human rights system, and the expense and time involved in a hearing: Dar Santos v. UBC, 2003 BCHRT 73 at para. 59, Tillis v. Pacific Western Brewing and Komatsu, 2005 BCHRT 433 at para. 15, Gichuru v. Pallai (No. 2), 2010 BCHRT 125 at paras. 113-118.
[21] The Tribunal may dismiss a complaint under s. 27(1)(d)(ii) where the parties have settled the complaint. While a settlement agreement does not deprive the Tribunal of jurisdiction over a complaint, there is a strong public interest in honouring settlement agreements: Thompson v. Providence Health Care , 2003 BCHRT 58 at para. 38. There are also situations, however, where the terms of the settlement or the conditions under which it was reached run counter to the purposes of the Code: Edwards v. Cowichan Valley Regional District , 2018 BCHRT 172 at para. 35; Thompson at paras. 39-46; The Employee v. The Company and the Owner , 2017 BCHRT 266 at para. 35.
[22] The Respondents must establish that a valid settlement agreement exists between the parties and that it was intended to release the Respondents from further liability in this human rights complaint: Thompson at para. 46. The Respondents must show that the parties agreed on the “essential elements of their agreement” and that there was, on those issues, a “meeting of the minds”: DCS Employee v. Employer Company and others , 2022 BCHRT 126 at para. 27. If the Respondents do that, the burden shifts to Ms. LaFayette to persuade me that her complaint should proceed to a hearing, nonetheless.
[23] The British Columbia Supreme Court recently summarized the principles that guide the determination of whether parties entered into a valid settlement agreement: Provincial Health Services Authority v Sayyari , 2022 BCSC 2092 [Sayyari] aff’d 2023 BCCA 413. The test is “whether it would be clear to an objective, reasonable bystander informed of the material facts, that the parties intended to contract, and whether the essential terms of that contract can be determined with reasonable certainty”: para. 49.
[24] On the evidence before me, a valid settlement exists. However, I am not persuaded that it does not further the purposes of the Codeto proceed with the complaint. I start with my reasons for finding that a valid settlement agreement exists.
A. Did the parties reach a valid settlement agreement?
[25] I am persuaded that the parties reached a settlement agreement, which the Respondents reduced to writing following the mediation and sent to Ms. LaFayette’s legal counsel on the same day.
[26] In his email dated March 15, 2022, Ms. LaFayette’s legal counsel told the Respondents that she agreed to the settlement drafted by the Respondents, but for clause 7. The essential terms of the agreement were that the Respondents would pay for counselling services for Ms. LaFayette and her family and review all of her police complaints between certain dates. In exchange, Ms. LaFayette would withdraw her human rights complaint. I do not find clause 7 an essential term of the settlement. It is evident on the materials before me that there was no meeting of the minds on clause 7 and the Respondents do not dispute it remained tentative. I find that the fact that the parties did not reach agreement on clause 7 does not detract from the parties’ agreement on the essential terms of the settlement.
[27] I turn to Ms. LaFayette’s argument that the settlement may be invalid and unenforceable because the articling student had limited authority to act, and the Respondents’ counsel knew of the limitation.
[28] I am not persuaded by Ms. LaFayette’s argument. First, she has not identified or provided me with evidence of her representative’s limited authority to act on her behalf, such as a retainer agreement that excluded their ability to settle a complaint on her behalf. Second, her argument appears to rest on the fact that the articling student was not a practicing lawyer. Even if that did limit the articling student’s authority to settle the complaint, I am not persuaded. It is true that Ms. LaFayette’s advocate at the mediation was the articling student. However, at all times, the articling student remained under the supervision of legal counsel and legal counsel communicated Ms. LaFayette’s acceptance of the settlement to the Respondents on Ms. LaFayette’s behalf. I am not persuaded that the fact that Ms. LaFayette was represented at the mediation by the articling student invalidates the settlement agreement.
[29] As the Tribunal observed in Smith v. Nikkei Seniors Health Care and Saul, 2005 BCHRT 469, “The respondents were entitled, and indeed required, to deal exclusively with Ms. Smith’s advocate. He was her agent for all purposes related to her human rights complaint. The respondents were entitled to rely on his advice that he had instructions from Ms. Smith to accept their offer and did so”: para. 16; see also Grant v. Absolute Spa and others (No. 2) , 2020 BCHRT 113 at paras. 42-45.
[30] It is essential to the efficient resolution of complaints that opposing parties be able to rely on such agreements without concern that a party may subsequently seek to resile from the agreement based on miscommunication with their representative. The Codeincorporates the public policy goal of encouraging parties to resolve human rights complaints on a consensual and voluntary basis. That policy would be severely undermined if the Tribunal did not uphold the binding nature of settlement agreements: Nguyenat para 36.
[31] In these circumstances, the Respondents were entitled and indeed required to deal exclusively with Ms. LaFayette’s legal counsel and articling student. They were her agent for all purposes related to her human rights complaint, and the Respondents were entitled to rely on their statement that they had instructions from Ms. LaFayette to agree to the settlement terms and did so.
[32] Ms. LaFayette also argues she did not sign the agreement as the terms were communicated in an email. I am also unable to accept this argument. The fact that there is no signed, written agreement is not determinative of whether the parties entered into a valid settlement agreement: Robertson v. Whistler (Resort Municipality), 2012 BCSC 763; Sayyari at para. 60.
[33] In these circumstances, I am persuaded that it would be clear to an objective, reasonable bystander informed of the material facts that the parties had entered into a settlement agreement on the above-noted essential terms.
[34] I have found a valid settlement agreement exists between the parties, but the inquiry does not end here. I must now consider whether it does not further the purpose of the Codeto dismiss Ms. LaFayette’s complaint.
B. Should Ms. LaFayette’s complaint nevertheless proceed to a hearing?
[35] The burden is on Ms. LaFayette to persuade me that dismissing her complaint in the face of a valid settlement agreement does not further the purposes of the Code: The Employee at para. 30.
[36] If the Tribunal finds that a valid settlement agreement exists which deals with the subject matter of the complaint before it, the Tribunal will not allow the complaint to be heard unless there are public policy considerations to the contrary. The Tribunal considers the public policy purposes of the Code listed in s. 3. There is a serious concern that the purposes of the Code are not furthered by allowing a complaint to proceed in the face of a valid settlement agreement intended by the parties to resolve the human rights complaint in issue: Nguyen v. Prince Rupert School District No. 52, 2004 BCHRT 20 at para. 15. There is also a strong policy rationale for holding people to their agreements. As the Tribunal said at para. 15 in Nguyen:
When parties can resolve human rights disputes through a settlement agreement, considerable public and private resources may be saved. They may be able to resolve the complaint more expeditiously than would a formal hearing process. The parties may also be able to craft a resolution which more closely matches their needs and interests than would a decision of the Tribunal. Finally, the mediation process itself may be better for the parties’ relationship than a formal hearing. For all of these reasons, the Tribunal encourages and assists parties in attempting to resolve complaints.
[37] At the same time, the Tribunal wrote in Thompson at para. 38, “[t]he fact that parties have entered into a settlement agreement respecting a human rights dispute does not deprive the Tribunal of jurisdiction to hear the dispute.” Parties cannot contract out of their rights under the Code: Insurance Corporation of British Columbia v. Heerspink, 1982 CanLII 27 (SCC), [1982] 2 SCR 145 at para. 158; The Employee v. The Company and the Owner, 2017 BCHRT 266 at para. 27.
[38] The Tribunal has recognized several factors that may signal circumstances where dismissing a complaint on the basis that a settlement agreement has been reached could run contrary to the purposes of the Code . These include unconscionability, “which exists where there is an inequality of bargaining power and a substantially unfair settlement”; undue coercion or influence, where the party did not have access to independent legal advice; conditions of duress, which may be related to the timing of the agreement, financial need, or other circumstances; and, whether the party received little or no consideration for the release: Thompsonat paras. 42-44, citing Chow (Re) (1999), and Pritchard v. Ontario (Human Rights Commission) (No. 1) (1999), 1999 CanLII 15058 (ON SCDC), 35 C.H.R.R. D/39 (Ont. Ct. (Gen. Div.)) at para. 17. The Tribunal may also consider the language of the release and whether the parties understood its significance, whether the complainant understood their rights under the Code, and “the seriousness of the allegations in a complaint and what is at stake for the complainant”: Gerard v. Olive’s Market Whistler and others, 2015 BCHRT 102 at para. 17; Edwards para. 35; R. v. Insurance Company , 2024 BCHRT 30 at para. 65.
[39] The Respondents say that allowing the complaint to proceed where it has already been resolved between the parties would not further the purposes of the Code. In contrast, Ms. LaFayette argues that her legal counsel was mistaken in their belief that she had agreed to the settlement terms, the settlement agreement terms are unfair, and it would not further the purposes of the Codeto dismiss the complaint in these circumstances.
[40] Here, I must decide whether Ms. LaFayette has persuaded me that her former counsel misapprehended her instructions. Counsel have not referred me to any Tribunal cases where a complainant argued counsel misapprehended their instructions on settlement and I am aware of none. I recognize counsel error is not an expressly articulated circumstance in the case law cited above. However, I find an allegation that counsel misapprehended their client’s instructions to be a relevant consideration concerning whether the circumstances under which a settlement was reached weighs against dismissing that complaint under s. 27(1)(d)(ii) because it would not further the purposes of the Code to do so.
[41] Ms. LaFayette has persuaded me that her former lawyer misapprehended her instructions and this weighs against dismissing the complaint. I am supported in this conclusion by the Court of Appeal’s reasoning in Hawitt v. Campbell(1983), 148 D.L.R. (3d) 341, recently referred to in Provincial Health Services Authority v. Briggs , 2023 BCSC 1729 at para. 32. In Hawitt the Court of Appeal considered what circumstances would justify the court “refusing to enforce a settlement of an action reached between the solicitors of the parties to that action”: para. 8. The Court concluded:
The judge may refuse the stay if:
1. There was a limitation on the instructions of the solicitor known to the opposite party;
2. There was a misapprehension by the solicitor making the settlement of the instructions of the client or of the facts of a type that would result in injustice or make it unreasonable or unfair to enforce the settlement;
3. There was fraud or collusion;
4. there was an issue to be tried as to whether there was such a limitation, misapprehension, fraud or collusion in relation to the settlement. [para. 20]
[42] I begin my analysis by considering the gap in the evidence concerning Ms. LaFayette’s instruction to counsel. The evidence of Ms. LaFayette’s instructions is: (1) her email to the articling student dated March 15, saying she would get back to them about the draft settlement, but she needed to rest before doing so; and (2) her email to the articling student dated March 16, saying she was unwilling to settle the matter generally. There is no evidence about when or to whom – the articling student or their supervising lawyer – Ms. LaFayette purportedly gave instructions to settle the complaint.
[43] Ms. LaFayette says her then legal counsel did not have her instructions to settle. There is no evidence in the emails between Ms. LaFayette and her then legal representatives that show Ms. LaFayette instructing either the legal counsel or the articling student to accept the draft settlement before counsel did so. It is possible from the timing of the correspondence before me that that the articling student understood they had Ms. LaFayette’s instructions to settle based on what was said during the phone call at 5:14 p.m. The only evidence before me is Ms. LaFayette’s and she says she did not give the legal representatives any instructions to settle. I note in this regard, Ms. LaFayette’s evidence is that her physical and mental disability caused her to be tired and confused by the end of the long mediation session. Ms. LaFayette put before the Tribunal a letter from her doctor dated October 21, 2020, advising that Ms. LaFayette should not participate in legal proceedings where she would be required to decide on legal issues. I understand from Ms. LaFayette’s affidavit that her disability was the reason she needed to rest before reviewing and accepting or rejecting the settlement terms. On the evidence of the emails between Ms. LaFayette and legal representatives, I find that there is merit to Ms. LaFayette’s claim that she did not give instructions for counsel to settle the complaint. This factor weighs in favour of proceeding with the complaint.
[44] Further, there is no evidence before me regarding what the parties agreed to at the mediation. There is no dispute that the meeting occurred, the prospect of resolving Ms. LaFayette’s complaint with the District of Saanich was raised, and that Ms. LaFayette appeared on video at some point in the meeting. Beyond this, the Respondents argue that the parties had reached a settlement agreement, while Ms. LaFayette says there was no agreement and she only agreed to review the draft settlement. She says when the Respondents sent the draft settlement terms, she reviewed and rejected the settlement terms. In the circumstances, I have no direct evidence or submissions concerning who said what and when at the mediation, what settlement offers were made, or how the parties negotiated the settlement terms eventually accepted by Ms. LaFayette’s former lawyer. The parties’ evidence directly and substantially conflicts on what was concluded at the mediation and this weighs against dismissing the complaint.
[45] I also consider the timing of the emails between the Respondents and Ms. LaFayette’s legal counsel, and between legal counsel and Ms. LaFayette. Ms. LaFayette states that she was not given sufficient time to decide or read over the agreement before legal counsel agreed to it. On the evidence before me, Ms. LaFayette told the articling student that she would consider the draft agreement after she rested, and when she did, she informed the articling student that she was not willing to settle on those terms. Nevertheless, the articling student sent Ms. LaFayette the draft agreement, “which was just confirmed.” The evidence before me is that legal counsel had agreed to the draft settlement on Ms. LaFayette’s behalf, and afterwards, the articling student emailed it to Ms. LaFayette. Therefore, it is unclear who Ms. LaFayette gave those instructions to, whether it was at the mediation or afterwards. This factor also weighs in favour of proceeding with the complaint.
[46] Finally, I consider what is at stake for Ms. LaFayette in this complaint. She alleges that for at least 12 years, she was the recipient of harassment by her neighbours and the police, as well as police mishandling of her complaints regarding those allegations, all due to her race. She says the police engaged in a pattern of discrimination based on their perceived diagnosis that she was “mentally ill” and “mentally retarded.” Therefore, she argues that the settlement is unfair as it does not compensate her for injury to dignity.
[47] While I acknowledge that the agreement did not compensate Ms. LaFayette for injury to dignity, I also note that Ms. LaFayette received consideration for settling the complaint. In this case, the Respondents offered Ms. LaFayette $5000 towards counselling services. There is no evidence before me as to whether Ms. LaFayette actually received that consideration. A remedy the parties negotiate through a settlement does not have to mirror what the Tribunal might award if the complaint were successful: Carter v. Travelex Canada, 2009 BCCA 180 at para. 30. Parties sign releases and settle complaints for many reasons, only one of which is what they might be awarded if they were to win a human rights complaint: The Employeeat para. 44; Carterat para. 36. The lack of compensation for injury to dignity in a settlement agreement does not, without more, mean that a settlement agreement was unfair, especially in circumstances where non-financial remedies are negotiated. I do not consider this factor to be determinative in my analysis.
[48] After weighing the factors above and the absence of information and evidence about the circumstances in which the agreement was entered, it appears to me at this stage of proceedings that it would be unjust to deny Ms. LaFayette an opportunity to hear the merits of her case. The outstanding issues, which go to the factors the Tribunal has set out in Thompson and other cases, are irreconcilable based on the evidence that I have before me.
[49] In reaching this conclusion, I do not take for granted the important values of holding parties to their agreements freely entered into by their representatives on their behalf. As I stated above, “the public policy would be severely undermined if parties were allowed to resile from settlement agreements entered into on their behalf by their representatives. It is essential to the efficient resolution of complaints that opposing parties are able to rely on such agreements, without concern that a party may subsequently seek to resile from the agreement on the basis of miscommunication with their representative”: Nguyen,at para 36. However, this is only one public policy consideration that applies to adjudicating human rights complaints, and I considered other relevant policy factors in reaching this decision.
[50] I decline to dismiss the Complaint because allowing it to proceed would not further the purposes of the Code.
IV CONCLUSION
[51] I deny the Respondents’ dismissal application.
Ijeamaka Anika
Tribunal Member
Human Rights Tribunal