Radhakrishnan v. University of Calgary Faculty Association et al.,

• Judge: Berger,C,Fraser,Jowell
• Neutral Citation: 2002 ABCA 182
• Court: Court of Appeal (Alberta)
• Date: 31 July 2002
• Citation: (2002), 312 A.R. 143 (CA),2002 ABCA 182,215 DLR (4th) 624,[2003] 1 WWR 244,312 AR 143,5 Alta LR (4th) 1,45 Admin LR (3d) 77,[2002] CarswellAlta 943,[2002] AJ No 961 (QL),281 WAC 143,281 W.A.C. 143,312 A.R. 143,[2002] A.J. No 961 (QL),(2002), 312 AR 143 (CA),215 D.L.R. (4th) 624

Radhakrishnan v. Calgary Univ. (2002), 312 A.R. 143 (CA);

    281 W.A.C. 143

MLB headnote and full text

Temp. Cite: [2002] A.R. TBEd. AU.004

Dr. Ramaswami Radhakrishnan (plaintiff/appellant) v. The University of Calgary Faculty Association carrying on business under the name and style of "TUCFA", The Board of Governors of the University of Calgary, Dr. Murray Fraser, Dr. Allan Cahoon, Dr. D.A. Seastone, Dr. N. Wagner, Dr. A.W. Rasporich, Dr. P.J. Krueger, Dr. Eung-Do Cook and John Doe (defendants/respondents)

(00-18640; 2002 ABCA 182)

Indexed As: Radhakrishnan v. University of Calgary Faculty Association et al.

Alberta Court of Appeal

Côté and Berger, JJ.A., and Fraser, J.(ad hoc)

July 31, 2002.

Summary:

A professor sued his former employer and others, alleging that he was wrongfully dealt with regarding the negotiations and settlement of his dismissal from the University. The professor asserted that the University violated its duty to act fairly and in accordance with natural justice; the settlement was invalid because of fraud, deceit, duress and unconscionability, abuse of process and actionable nondisclosure; the University's bargaining unit pressured him into entering into a former agreement without the benefit of proper representation from the bargaining unit; and the bargaining unit induced him to enter the settlement.

The Alberta Court of Queen's Bench, in a judgment reported 251 A.R. 298, dismissed the action. The court rejected all grounds asserted for setting aside the settlement agreement, finding it to be valid. The professor appealed.

The Alberta Court of Appeal dismissed the appeal, agreeing completely with the trial judge's fact findings and reasons for judgment.

Administrative Law - Topic 2266

Natural justice - The duty of fairness - What constitutes procedural fairness - [See fifth Practice - Topic 9857 ].

Contracts - Topic 1541

Formation of contract - Duty to disclose - General - [See fourth Practice - Topic 9857 ].

Contracts - Topic 1544

Formation of contract - Duty to disclose - What constitutes a contract uberrimae fidei (utmost good faith) - The Alberta Court of Appeal stated that there was no general duty to disclose when negotiating an ordinary contract - Most contracts were entered into on the basis of incomplete information - A person cannot later repudiate a compromise contract upon the basis of facts not disclosed by the other contracting party - Two exceptions to setting aside contracts for nondisclosure were contracts of utmost good faith and some contracts between a fiduciary and his beneficiary - The court stated that a settlement agreement between an employer and employee respecting termination was not a contract of utmost good faith - See paragraphs 34 to 36.

Contracts - Topic 1586

Formation of contract - Consent - Duress - Defence of - When available - [See third Practice - Topic 9857 ].

Contracts - Topic 1604

Formation of contract - Mistake, misunderstanding or misrepresentation - Misrepresentation - What constitutes - [See second Practice - Topic 9857 ].

Fraud and Misrepresentation - Topic 7

Fraudulent misrepresentation (deceit) - What constitutes fraud - [See second Practice - Topic 9857 ].

Fraud and Misrepresentation - Topic 181

Fraudulent misrepresentation (deceit) - Intention to induce reliance - General - [See second Practice - Topic 9857 ].

Practice - Topic 9857

Settlements - Setting aside - Grounds - A professor sued his former employer and others, alleging that he was wrongfully dealt with regarding the negotiations and settlement of his dismissal from the University - The professor asserted that the settlement was invalid because of fraud, deceit, duress and unconscionability, abuse of process and actionable non-disclosure by the University - The University asserted that the only issue was whether the settlement was valid - The trial judge refused to set aside the settlement, holding that the settlement was valid because it was made with the professor's knowledge and consent - The Alberta Court of Appeal affirmed the decision.

Practice - Topic 9857

Settlements - Setting aside - Grounds - A professor sued his employer and others to set aside a settlement regarding his dismissal - The professor asserted that the settlement was invalid because he was induced to settle by the University's fraud (failing to provide a favourable committee report) and deceit by fraudulent representations (not advising of the report when advising that a decision had not been made yet) - The professor admitted in discovery to knowing prior to the settlement that the report was out and presuming it was in his favour - The trial judge upheld the settlement - There was no fraud and thus no deceit - The professor would not have acted any differently if he had possession of the report - The Alberta Court of Appeal affirmed the decision.

Practice - Topic 9857

Settlements - Setting aside - Grounds - A professor sued his former employer and others to set aside a settlement agreement regarding his dismissal - The University did not give a favourable committee report to the professor - The professor asserted, inter alia, that the settlement should be set aside because he signed the settlement under duress and unconscionable circumstances - He asserted that the University used his financial circumstances (he was only working 1/2 time) to get him to sign the settlement - The trial judge held that there was no duress or unconscionability - It was not until long after the fact that the professor filed his claim, realizing that he had made a "bad" decision - The professor had an alternative remedy available when he signed the settlement, being to proceed with his grievances (which he discontinued) and get a copy of the report - The Alberta Court of Appeal affirmed the decision.

Practice - Topic 9857

Settlements - Setting aside - Grounds - A professor sued his former employer and others to set aside a settlement regarding his dismissal - The professor asserted that the settlement should be set aside on the basis of actionable non-disclosure because relevant information, a committee's report that was favourable to him, was not disclosed - The University did not hide the existence of the report from the professor and never suggested it was unfavourable to him before he settled - The trial judge held that there was no actionable non-disclosure - The University did not hide the existence of the report prior to settling - The professor had correctly assumed that the report was favourable to him and filed grievances requesting a copy of it - He settled and discontinued the grievances - The Alberta Court of Appeal affirmed the decision.

Practice - Topic 9857

Settlements - Setting aside - Grounds - A professor sued his former employer and others to set aside a settlement regarding his dismissal - The professor asserted that the settlement should be set aside on the basis of breach of natural justice (fairness) because the University did not release a favourable committee report and memoranda to the professor - The trial judge held that the University did not breach the principles of natural justice - The University was not obligated to release the report and memoranda - The report was marked confidential and treated as such by committee members - The professor was not prejudiced because he had grieved for a copy of the report and memoranda, which he discontinued upon settling - The Alberta Court of Appeal affirmed the decision.

Cases Noticed:

Robertson v. Walwyn Stodgell Cochrane Murray Ltd., [1988] 4 W.W.R. 283 (B.C.C.A.), refd to. [para. 30].

Turner v. Green, [1895] 2 Ch. 205, refd to. [para. 34].

HIH Casualty & General Insurance v. Chase Manhattan Bank, [2001] 1 Lloyd's Rep. 30, refd to. [para. 34].

Naylor v. Winch (1824), 1 Sim. & St. 555; 57 E.R. 219 (V.C.), affd. (1828), 7 L.J. Ch. (O.S.) 6 (L.C.), refd to. [para. 44].

Christiansen v. Bachul (2001), 284 A.R. 196 (Q.B.), refd to. [para. 45].

Tsaoussis v. Baetz (1998), 112 O.A.C. 78; 165 D.L.R.(4th) 268 (C.A.), leave to appeal denied (1999), 236 N.R. 189; 112 O.A.C. 199 (S.C.C.), refd to. [para. 45].

Bainbrigge v. Moss (1856), 3 Jur. (N.S.) 58 (V.C.), refd to. [para. 47].

Capewell Horsenail Co. v. Canada Steamship Lines Ltd. (1925), 28 O.W.N. 455, affd. 29 O.W.N. 218 (C.A.), refd to. [para. 47].

Elsas v. Williams (1884), 54 L.J. Ch. 336, refd to. [para. 47].

Moric v. Handspiker (1985), 65 B.C.L.R. 74 (C.A.), refd to. [para. 47].

Athabasca Realty Co. v. Foster (1982), 132 D.L.R.(3d) 556 (Alta. C.A.), refd to. [para. 47].

Husky Oil Operations v. Forest Oil Corp., [1991] 4 W.W.R. 336; 113 A.R. 349 (C.A.), refd to. [para. 47].

Amoco Canada Petroleum Co. et al. v. Propak Systems Ltd. et al. (2001), 281 A.R. 185; 248 W.A.C. 185; 200 D.L.R.(4th) 667 (C.A.), refd to. [para. 49].

Williams v. Swan, [1942] 4 D.L.R. 488 (Ont. H.C.), affd. [para. 54].

Martel Building Ltd. v. Canada, [2000] 2 S.C.R. 860; 262 N.R. 285; 193 D.L.R.(4th) 1, refd to. [para. 55].

London Loan & Savings Co. v. Brickenden, [1934] 2 W.W.R. 545 (P.C.), refd to. [para. 56].

Bell v. Lever Brothers, [1932] A.C. 161 (H.L.), refd to. [para. 58].

R. v. Law Society of Alberta; Ex parte Demco (1967), 64 D.L.R.(2d) 140 (Alta. C.A.), leave to appeal denied (1967), 66 W.W.R. 427 (S.C.C.), refd to. [para. 65].

United Association of Journeymen & Apprentices of the Plumbing & Pipefitting Industry of Canada, Local 488 v. Reynolds et al., [1976] 3 W.W.R. 303; 69 D.L.R.(3d) 74 (Alta. C.A.), refd to. [para. 65].

Carter v. Boehm (1766), 3 Burr. 1905; 97 E.R. 1162, pp. 1164, 1165 [para. 67].

Coronation Insurance Co. et al. v. Taku Air Transport Ltd. et al., [1991] 3 S.C.R. 622; 131 N.R. 241; 6 B.C.A.C. 161; 13 W.A.C. 161, refd to. [para. 67].

Law v. Law, [1905] 1 Ch. 140; 74 L.J. Ch. 169; [1904-7] All E.R. Rep. 526 (C.A.), refd to. [para. 68].

Kneller v. Meadows (1996), 21 R.F.L.(4th) 109 (B.C.S.C.), affd. (1997), 28 R.F.L.(4th) (C.A.), refd to. [para. 68].

Cohnstaedt v. University of Regina (1986), 45 Sask.R. 197 (C.A.), dist. [para. 80].

Knight v. Board of Education of Indian Head School Division No. 19, [1990] 1 S.C.R. 653; 106 N.R. 17; 83 Sask.R. 81; 43 Admin. L.R. 189, dist. [para. 80].

R. v. Plymouth (City), [2001] E.W.C.A. 1935; [2002] 1 W.L.R. 803, refd to. [para. 83].

Authors and Works Noticed:

Brown, Donald J.M., and Evans, John M., Judicial Review of Administrative Actions in Canada (1998 Looseleaf Ed.), para. 9:1500 [para. 74].

Cheshire, Fifoot and Furmston, Law of Contract (13th Ed. 1996), pp. 278, 279, 309 [para. 34].

Chitty on Contracts (28th Ed. 1999), vol. 1, pp. 343, para. 6-013; 444, para. 7-060 [para. 67]; 445 to 446, para. 7-063 [para. 66]; vol. 2, pp. 433, 434, para. 7-043 [para. 56]; 991 [para. 67]; 992, para. 41-028 [para. 70]; 996, para. 41-034 [para. 66]; 1148, para. 23-013 [para. 47].

de Smith, S.A., Woolf, H., and Jowell, J.L., Judicial Review of Administrative Action, p. 542 [para. 74].

Foskett, Law and Practice of Compromise (1980), p. 30 [para. 59].

Foskett, Law and Practice of Compromise (4th Ed. 1996), pp. 59 to 60, § 4-28, § 4-29 [para. 59].

Halsbury's Laws of England (3rd Ed. 1955), vol. 30, p. 405 [para. 30].

Halsbury's Laws of England (4th Ed. 1976), vol. 16, § 1237 [para. 59].

Jones and de Villars, Principles of Administrative Law (3rd Ed. 1999), pp. 582, 583 [para. 74].

Spencer-Bower, G., Turner, A.K., and Sutton, The Law Relating to Actionable Non-Disclosure (2nd Ed. 1990), c. 9, pp. 89 to 90, § 5.01 [para. 58]; 91, § 5.02 [para. 58]; 92, § 5.03 [para. 67]; 92 to 93, § 5.04 [para. 34]; 180 to 182, 189 to 190, § 9.04, § 9.13 [para. 59]; 224 to 235, § 13.01 to 13.10 [para. 70]; 235 to 238, 240 to 245, §§ 13.11 to 13.15, 13.21 to 13.22 [para. 66].

Wade and Forsyth, Administrative Law (7th Ed. 1994), pp. 718, 719 [para. 74].

Counsel:

W.E. McNally, for the appellant;

J.W. Rose, Q.C., and T.J. Coates, for the respondents.

This appeal was heard on January 31, 2002, before Côté and Berger, JJ.A., and Fraser, J.(ad hoc), of the Alberta Court of Appeal.

On July 31, 2002, Côté, J.A., delivered the following judgment for the Court of Appeal.