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HomeMy WebLinkAboutSokic 02-03-1993 } , I, ) Concerning an arbitration .4PR 1 1993 Between: Cj\~\=t~ L Ö Cl~f;;{ t/- cr Oakville Association for the Mentally Retarded and Ontario Public Service Employees Union Grievance of M. Sokic, dismissal Preliminarv A ward Board of Arbitration J. W. Samuels, Chainnan E. L. Weldon, QC, Employer Nominee J. D. McManus, Union Nominee For the Parties Union M. Bevan, Grievance Officer Employer T. P. O'Connor, QC, Counsel Hearing in Oakville, December 23, 1992, and written submissions 4 , . ,~ _I, 1 Milandra Sokic was dismissed from her employment at the Association and grieved the Employer's action, claiming reinstatement to her foriner position and monetary compensation. A hearing was scheduled for February 21, 1992, but the parties informed the Board of Arbitration that a settlement had been reached and the hearing was cancelled. Some months later, the parties asked the Board to reconvene. There appeared to be some misunderstanding concerning the settlement. We reconvened on December 23, 1992. The members of the Board were there. The Employer's counsel was there. But there was no one at the hearing for the Union. The Board contacted Mr. Bevan, the Union Grievance Officer, and it was agreed that the parties would put in their evidence and argument in writing concerning the preliminary question of whether there had been a binding settlement reached back in February. The evidence discloses that Messrs. O'Connor (for the Employer) and Bevan (for the Union) reached a settlement over the telephone on February 18, 1992. Mr. Bevan obtained the grievor's agreement to the settlement and passed this on to Mr. O'Connor. The settlement involved several elements: the payment of an agreed sum of money by the Association to the grievor; no admission of liability by the Employer; withdrawal by the grievor of any further claim against the Association arising out of her dismissal. Mr. O'Connor sent a letter to Mr. Bevan on February 19, 1992, enclosing a "draft of Release" to be executed by the grievor. On February 25, 1992, Mr. O'Connor followed up with another letter to Mr. Bevan, enclosing a cheque payable to the grievor, to be held in escrow by Mr. /, ". . I ,I 2 Bevan pending receipt by the Association of a fully signed copy of the Release. Mr. Bevan sent the Release to Ms. Sokic for her signature. But the Release was never signed by the grievor, and Mr. Bevan still has the cheque uncashed. Ms. Sokic told Mr. Bevan that she no longer wanted to settle for various reasons. In these circumstances, was there a binding settlement? In our view, there was. Firstly, Mr. Bevan had the authority to bind the Union, and the grievor, when he entered into negotiations with Mr. O'Connor. Whatever the internal arrangements of the Union with respect to its grievors, the Employer is entitled to rely on the apparent authority of the Grievance Officer, unless the Employer is infonned that, in the particular case, the Grievance Officer lacks authority to make the settlement. In this case, the grievor herself agreed to the settlement after it had been negotiated by Messrs. Bevan and O'Connor, so that any question of Mr. Bevan's authority was entirely resolved. Secondly, the telephone conversations on February 18, 1992, resulted in a final binding agreement between the parties to settle this matter. When Messrs. Bevan' and O'Connor concluded their telephone conversations, they left nothing further to negotiate. Messrs. Bevan and O'Connor had reached agreement on all points of the settlement. Though Mr. O'Connor referred to the Release he sent as a "draft", it recorded accurately all the tenns which had been agreed between the parties, and no other terms. It remained only for Mr. Bevan to check to see if the Release was accurate. If the Release sent by Mr. O'Connor had been incorrect on some point, then the parties had to correct the written record . ' , ,\ 3 of their settlement. But the agreed terms of the settlement existed independent of the writing. Parties may contemplate a formalization of their verbal agreement, but this does not diminish the legal force and effect of the verbal agreement itself, if the parties already have a meeting of the minds concerning all the essential terms of their contract. In such a case, the "formalization" is simply a reduction of the verbal agreement into writing. See Calvan Consolidated Oil & Gas Co. v. Manning, [1959] SCR 253, where the Supreme Court of Canada decided that the parties had reached a full agreement through informal means, and the parties contemplation of a "fonnal agreement to follow" (which agreement did not in fact come into existence) did not vitiate the fact that they had reached a . final binding contract already. As well, see a good discussion on the whole matter of agreements "subject to contract" in Fridman, The Law of Contract in Canada (2nd edition, 1986), at pages 56-9. -, ~, .. " . 4 We find that the parties came to a final binding contract to settle their differences in this matter and we have no further jurisdiction. Done at London, Ontario, this ?~J day of f îi "'1 ' 1993. .¿t¡~ E. L. We don, QC, Employer Nominee fJ). kt þ,~. C_. r J. D. McManus, Union Nominee