Court File and Parties
Court of Appeal for Ontario
Before: MacPherson, Juriansz and Epstein JJ.A.
Between
Joaquim Alves
Plaintiff/Appellant
and
Azevedo & Nelson Barristers & Solicitors, TD Meloche Monnex Financial Services Inc., Sigurdson Courtlander & Burns and Christopher Caston
Defendants/Respondents
Counsel:
Doug Wright, for the appellant
Stuart Zacharias, for the respondent Christopher Caston
Heard & released orally: November 25, 2010
On appeal from the judgment of Justice D.M. Brown of the Superior Court of Justice dated May 17, 2010.
Endorsement
Overview
1The appellant appeals the order of Justice Brown enforcing a settlement agreement that the respondent claimed the appellant had entered into to discontinue his action against the respondent.
2We would dismiss the appeal.
Analysis
3First, the appellant submits the offer to settle expired because it was initially stated to remain open for acceptance only until July 31, 2009. That was so, but the subsequent communications of counsel made it clear that the offer remained open until August 7, when the appellant’s counsel accepted it. As the motion judge found, respondent’s counsel, by email, expressly extended the time for acceptance of the offer.
4Second, the appellant submits the release that the respondent required to be executed was not an agreed upon part of the settlement. We disagree. The original offer to settle stated that a release, which would be forwarded later, would have to be signed. The respondent provided a draft of the form of the release to be executed to the appellant’s counsel as the settlement offer contemplated. The appellant’s counsel, with the draft release in hand, accepted the offer and advised that he had forwarded the release to the appellant for signature. The acceptance of the offer did not reserve acceptance of the form of release.
5Finally, we are not persuaded that there is any basis on which we can interfere with the motion judge’s declining to exercise his discretion to not enforce the concluded settlement. We note there was no evidence filed by either the appellant or his counsel to establish the prejudice that would support such an exercise of the motion judge’s discretion.
Disposition
6Accordingly, the appeal is dismissed.
Costs
7The respondent is entitled to his costs of the appeal fixed at $3,609.46 inclusive of disbursements and applicable taxes.
“J.C. MacPherson J.A.”
“R.G. Juriansz J.A.”
“Gloria Epstein J.A.”