A Signed Release Form Does Not Cover Cases of Fraud
Par Sarah D. Pinsonnault, avocate
By Sarah D. Pinsonnault
In Tayar c. Croll, 2015 QCCA 1062, the Appellant contends, inter alia, that the Respondent’s action against him should have been dismissed by the trial judge since she apparently provided the Appellant with a full and final release when she signed a release form which stated that the parties “wish to release one another from any liability relating to the Funds and otherwise…”. More precisely, the Appellant purports that the words “and otherwise” include the Respondent’s claim in the present matter.
The Respondent’s claim stemmed from the misappropriation of her funds by the Appellant, an advisor whose services she retained to manage her accounts. The trial judge granted the Respondent’s action and condemned the Appellant to pay her the sum of $545,976.57 with interest and costs, that being the amount of her claim.
The Court of Appeal found that the Appellant failed to show any palpable error in the findings of the trial judge, nor in the inferences he drew as a result of his findings on credibility.
With respect to the Appellant’s argument based on the release form signed by the Respondent, the Court of Appeal had the following to say:
“ Without confirming the judge’s conclusion that the release was a nullity, we are of the opinion that the release even if valid, does not constitute a defence for Appellant. As stated above, the judge found as a fact that Respondent was unaware of Appellant’s fraud in 2009 when the release was signed […] Respondent did not know that $545,976.57 had been misappropriated over the years by Appellant. Whatever the reference to “and otherwise” might add to the scope of the release, Respondent could not release Appellant from his fraud of which she was unaware because of the latter’s fault.
 In effect and explicitly in the last paragraph of the release quoted above, Respondent renounced to any recourse against Appellant. As a matter of law, this renunciation could not exclude a recourse arising from Appellant’s “intentional or gross fault” as provided in Article 1474 C.C.Q.:
1474. A person may not exclude or limit his liability for material injury caused to another through an intentional or gross fault; a gross fault is a fault which shows gross recklessness, gross carelessness or gross negligence.
He may not in any way exclude or limit his liability for bodily or moral injury caused to another.
Even if there is a theoretical difference between a renunciation of recourse and a waiver of liability, the effect in this case is the same given Article 1474 C.C.Q. In the above document as a matter of law, the release could not be broader than the renunciation.
 Accordingly, properly interpreted in fact and in law, the release document did not relieve Appellant from the consequences of the fraud.
FOR ALL OF THE FOREGOING REASONS, THE COURT:
 DISMISSES the appeal, with costs.”
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