COURT OF APPEAL FOR ONTARIO

DATE: 20060209

DOCKET: C43585

RE: GEORGE GIANOPOULOS (Appellant) –and- OLGA MANAGEMENT LIMITED, CONSTANTINE KRANIAS and DR. ANASTASIA KRANIAS (Respondents)

BEFORE: ARMSTRONG, LANG AND MACFARLAND JJ.A.

COUNSEL: Glenn Cohen for the appellant

Jonathan Stainsby for the respondents

HEARD & RELEASED ORALLY: February 1, 2006

On appeal from the order of Justice Sarah E. Pepall of the Superior Court of Justice dated April 25, 2005 made at Toronto, Ontario.

E N D O R S E M E N T

[1] The motion judge held that the respondent’s alleged breach of a confidentiality provision that was contained in minutes of settlement did not constitute a fundamental breach. The appellant concedes that there was no fundamental breach because the respondent had both paid the damages agreed upon in the minutes of settlement and had published the required apology.

[2] On appeal, the appellant argues that this court should provide a remedy on grounds analogous to rule 49.09. Rule 49.09 provides remedies for non-compliance with an accepted offer of settlement. In particular, the rule permits the aggrieved party to continue with the proceeding as though there had been no settlement.

[3] Rule 49.09, however, is a procedural rule applicable to the acceptance and subsequent non-compliance with an offer to settle. Rule 49.09 does not assist the appellant for three reasons. First, the settlement in this case was not by acceptance of an offer to settle but by execution of minutes of settlement. Second, the respondent did comply with two fundamental terms of the minutes of settlement: the payment and the publication of the apology. Third, the rule is procedural in nature and does not change the substantive law on the breach of contract.

[4] However, to the extent that the motion judge’s reasons go on to hold that there was no breach of the minutes of settlement, in our view, she erred. That issue was not raised in the grounds for the motion. If her finding of no breach is allowed to stand, the appellant would be precluded from asserting the remedy that may be appropriate in this case – an action for damages for breach of contract.

[5] In the result, the appeal is dismissed. This is not an appropriate case for an award of costs.