COURT OF APPEAL FOR ONTARIO

CITATION: Thompson 28 Co. Ltd. v. Buote, 2015 ONCA 376

DATE: 20150525

DOCKET: C59709

MacPherson, Cronk and Gillese JJ.A.

BETWEEN

Thompson 28 Co. Ltd. and Robert Jewett

Applicants (Respondents)

and

John David Buote

Respondent (Appellant)

Counsel:

John David Buote, acting in person

Jonathan Mesiano-Crookston, for the respondents

Heard: May 22, 2015

On appeal from the judgment of Justice Kevin W. Whitaker of the Superior Court of Justice, dated October 30, 2014.

ENDORSEMENT

[1] The appellant John Buote appeals the judgment of Whitaker J. of the Superior Court of Justice dated October 30, 2014 declaring that a Memorandum of Settlement dated April 29, 2014 is a binding contract between the parties.

[2] Mr. Buote, an Ontario tax lawyer, and Thompson 28 Co. Ltd., a Manitoba corporation, and Robert Jewett, the sole officer and director of Thompson 28, had a fairly lengthy solicitor-client relationship. Eventually, this relationship foundered and litigation ensued in Manitoba. First in 2013 and again in April 2014, the parties tried to resolve their differences.

[3] On April 29, 2014, the parties signed a Memorandum of Settlement. In the memorandum, the parties selected the law of Ontario and granted exclusive jurisdiction to the courts of Ontario.

[4] The appellant refused to comply with one term of the Memorandum of Settlement relating to the date for a transfer to the respondent company of his shares in the company. The respondents brought an application seeking a declaration that the Memorandum of Settlement was binding and effective.

[5] Whitaker J. granted the application. In brief reasons, he concluded that "a neutral and objective party would conclude on the language of the April 29, 2014 document that the parties have entered in a binding agreement to resolve all outstanding issues... I conclude that the settlement is a binding contract and should be upheld as such."

[6] On appeal, the appellant contends that the application judge erred by concluding that the Memorandum of Settlement was a binding contract. As we understand his argument, he makes two points in support of this ultimate conclusion.

[7] First, the appellant submits that the application judge ignored part of the test for contract formation, namely, whether there was sufficient certainty as to the Memorandum's essential terms: see UBS Securities Inc. v. Sand Brothers Canada Ltd., 2009 ONCA 328.

[8] We do not accept this submission. The application judge examined the words of the Memorandum of Settlement (a two-page document), which are quite straightforward and easy to understand, especially for an experienced tax lawyer, and concluded that the parties had reached a binding contract, as attested by the appellant's signature. This is not a case of a long, complicated document with multiple possible meanings for some of its provisions.

[9] Second, the appellant contends that the application judge did not have proper regard to all the evidence, focussing instead on the words of the Memorandum.

[10] Aside from the obvious point that the sine qua non of contract interpretation is the words of the contract, there is nothing to suggest that the application judge did not review and consider the relevant evidence, including affidavits, exhibits, and the behaviour and actions of the parties before and after the Memorandum was signed.

[11] We add this observation. The terms of the Memorandum are entirely inconsistent with the appellant's claim that there were other outstanding rights and obligations between the parties that were unaffected by the settlement (for example, the loan guarantee and indemnity arrangements between the parties). The Memorandum clearly and unambiguously provides that it pertains to all outstanding disputes between the parties that "no other amounts will be payable to [the appellant]" other than as provided for under the Memorandum, and that the documents necessary to document an April 1, 2012 share transfer would be signed by the appellant. The appellant, an experienced tax lawyer, did not object to these terms at the time of execution of the Memorandum. It is not open to him to do so now.

[12] The appeal is dismissed. The respondents are entitled to their costs of the appeal fixed at $12,000, inclusive of disbursements and applicable taxes.

"J.C. MacPherson J.A."

"E.A. Cronk J.A."

"E.E. Gillese J.A."