COURT OF APPEAL FOR ONTARIO
RE: MARY-LYNN McMULLEN (Applicant/Appellant)
- and - ANDRE M. DUROCHER and SHARON DUROCHER
(Respondents/Respondents in Appeal)
BEFORE: LABROSSE, LASKIN and MOLDAVER JJ.A.
COUNSEL: Benjamin F. Pritchard,
for the applicant/appellant
Larry Peterson,
for the respondents
HEARD: May 23, 2000
On appeal from the order of Mr. Justice M. Bolan dated November 8,
1999
E N D O R S E M E N T
1We are not persuaded that the motions judge was in error in
concluding that there was a binding settlement based on the offer
and acceptance exchanged between the solicitors for the parties.
2Nor are we persuaded that the motions judge erred in
refusing to set aside the settlement on the basis of unilateral
mistake.
3The appeal is dismissed with costs.
4I view this as a case of unilateral mistake. The
appellant’s lawyer mistakenly failed to include a purchase price
in the May 11, 1999 offer and then failed to send the May 12,
1999 letter. The appellant is entitled to be relieved of her
lawyer’s unilateral mistake if the respondents knew or ought to
have known of the mistake. There is no finding that the
respondents or their lawyer knew of the mistake. In my view,
however, the respondents ought to have known from the surrounding
circumstances that the May 11th letter mistakenly failed to
include a purchase price. The surrounding circumstances include
the following:
(a) There was considerable evidence that the appellant owned
both parts 1 and 2;
(b) The January 18, 1999 letter from the respondents offered a
quit claim on part 2 and agreed to pay $1,000 for part 1;
(c) In the light of the January 18th offer from the respondents,
the May 11th offer from the appellant makes no sense because
it amounts to virtual capitulation. It does not even deal
with part 2, which the respondents had already agreed to
quit claim, and makes no mention of the $1,000 or any sale
price for part 1;
(d) The use of the word “sell” in the May 11, 1999 offer; and
(e) The wording of the May 27, 1999 acceptance letter from the
respondents’ lawyer.
5Accordingly, I would relieve the appellant from her lawyer’s
unilateral mistake. I would allow the appeal, set aside the
judgment at trial, and dismiss the motion. In the circumstances
I would make no order for costs, either of the motion or of the
appeal.
(signed) "J. M. Labrosse J.A."
(signed) "John Laskin J.A."
(signed) "M. J. Moldaver J.A."