Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20240514 DOCKET: COA-23-CV-0693

van Rensburg, Sossin and Dawe JJ.A.

BETWEEN

Stephan Wiener Plaintiff (Appellant)

and

Paul Strickland and Siskinds LLP Defendants (Respondents)

Counsel: Joel Vale and David Fogel, for the appellant David B. Williams, for the respondents

Heard: May 8, 2024

On appeal from the judgment of Justice Pamela L. Hebner of the Superior Court of Justice, dated June 8, 2023, with reasons reported at 2023 ONSC 3452.

Reasons for Decision

[1] This appeal arises out of a solicitor’s negligence claim. The respondents, Mr. Strickland and his law firm, Siskinds LLP, acted for the appellant, Stephan Wiener, on an estates dispute. That dispute resulted in a settlement. The appellant subsequently took the view that he had not authorized Mr. Strickland to agree to the terms which led to the settlement. His specific concern was over whether the settlement preserved his ability to sue the lawyer who had represented the estate. The appellant then commenced litigation against the respondents. He also sought to resile from the settlement in the original estates dispute, but further litigation to enforce the settlement was ultimately resolved through a consent order.

[2] In the appellant’s action against the respondents, the trial of an issue was ordered by Desotti J., who in a pre-trial conference directed that the following question be tried to determine if there is liability on the part of the respondents to the appellant. That issue was: did the respondent, Mr. Strickland, bind the appellant to anything in a one-page document arising from a mediated settlement without the appellant’s instructions?

[3] In the event the trial judge found in favour of the appellant, then liability would be established and a trial on damages would have to be scheduled. If the trial judge found in favour of the respondents, the matter would be concluded.

[4] After the trial, the trial judge found that Mr. Strickland did not bind Mr. Wiener to any of the points in the settlement document without his instructions, thus bringing the solicitor’s negligence action to an end. The appellant appealed.

[5] We dismissed the appeal at the close of the hearing for reasons to follow. These are our reasons.

Background

[6] The appellant, Stephan Wiener, is the son of Frank and Jean Wiener. They had two other surviving children: Joseph and Susan. Frank and Jean had appointed Joseph as their attorney for property and personal care. After Frank’s death in 2011, the siblings disagreed over the plans for the family farm, which was the family’s primary asset. Joseph wanted to sell the farm. The appellant disagreed and retained Mr. Paul Strickland to advise him.

[7] On March 31, 2012, Joseph sold the farm under power of attorney to neighbours who wished to purchase it. Jean died a month later. The appellant objected to the sale, but it closed anyway. Mr. Douglas Gunn acted for both Jean’s estate and the neighbours on the sale. The appellant believes this constituted a conflict of interest. Another lawyer, Mr. Wayne Eitel, also acted for Jean’s estate in the real estate transaction.

[8] Litigation ensued, and the parties eventually agreed to a mediation. Mr. Strickland acted for the appellant. Ms. Lou-Anne Farrell acted for his brother, Joseph. The mediation took place on August 26, 2014. At the end of the day, the mediator came to the appellant’s room with a final proposal. In the presence of the mediator, the appellant told Mr. Strickland that he would accept the proposal. The mediator considered the case settled.

[9] Mr. Strickland and Ms. Farrell prepared a one-page handwritten document setting out the terms of the settlement. That document provided, in addition to setting out substantive terms, that all applications would be abandoned without costs and that all beneficiaries were to sign standard releases releasing the estate and estate trustees.

[10] The Minutes of Settlement were to be prepared by Ms. Farrell and the respondent was to prepare the releases. The appellant reviewed the settlement document and stated that he agreed to all the points set out therein, provided he could still bring a separate action against Mr. Gunn in relation to what the appellant believed was Mr. Gunn’s conflict of interest.

[11] Minutes of settlement were drafted but the plaintiff refused to sign. He said he would not sign the minutes of settlement as they did not expressly provide that he could sue Mr. Gunn.

[12] In the weeks that followed, the appellant asserted that he did not instruct Mr. Strickland to resolve the dispute on those terms. Joseph brought a motion to enforce the settlement, which eventually resulted in a consent order that included estate releases, which did not include a “no claims over” clause.

[13] The appellant then commenced the underlying solicitor’s negligence action. The appellant’s position was that there were no instructions to settle if the proposed settlement precluded him from bringing a claim against Mr. Gunn or Mr. Eitel. [1] He asserted that there were two reasons why he could not bring a claim against them (and therefore why there were no instructions to settle): (1) the settlement document bound him to a “standard release”, which would have included a no claims over clause, and (2) the limitation period to bring a claim against Mr. Gunn had expired.

[14] The trial judge dismissed the appellant’s claim on this issue. She concluded that nothing in the settlement document precluded the appellant from suing Mr. Gunn. She also noted that Ms. Farrell did not demand that Mr. Gunn be released and, in fact, that the release was not an issue until the appellant raised it months later. She concluded, at para. 66, “The [appellant], in his evidence, said that he had agreed with each and every point in the settlement document so long as he could sue Mr. Gunn. There was nothing in the settlement document that prevented him from doing so.”

[15] The trial judge also rejected the appellant’s limitation period argument. She concluded that she was “not aware of any cause of action the [appellant] would have had against Mr. Gunn” and that she accordingly could not determine when the limitation period started to run or when it expired. She also reasoned that because a limitation period is a defence to an action, it would not have operated to prevent the appellant from bringing an action in the first place.

Analysis

[16] The appellant raises two grounds of appeal:

1. Did the trial judge err in concluding that nothing in the settlement document precluded the appellant from suing Mr. Gunn?
2. Did the trial judge err in concluding that she could not determine the limitation period and that, in any event, it would not have barred the appellant from suing Mr. Gunn?

[17] In our view, the appellant’s arguments do not have merit.

[18] The trial judge had the benefit of hearing all of the parties to the mediation, including the mediator. The trial judge concluded that Mr. Strickland did not bind the appellant to any of the points in the settlement document without the appellant’s instructions.

[19] This conclusion was open to her on the record, including the evidence of the participants to the mediation and the evidence of the appellant himself on the issue of the instructions he provided regarding the settlement. The findings of fact on which this conclusion was based are entitled to deference.

[20] With respect to the first issue, the trial judge committed no error in concluding that the settlement document at issue in no way precluded such subsequent litigation against Mr. Gunn. The terms of the document make no reference to Mr. Gunn and none of the terms could be construed as precluding subsequent litigation against Mr. Gunn.

[21] Similarly, the fact that the settlement document envisioned releases being signed also has no bearing on this question. The document refers only to releases as against the estate and the estate trustees, and both Ms. Farrell and Mr. Strickland confirmed in their evidence that the issue of Mr. Gunn’s inclusion in any release was never discussed, negotiated or intended.

[22] The appellant argues that, irrespective of whether Mr. Gunn was referred to, the reference to a “standard form release” would have included a “no claims over” clause unless specifically carved out, relying on Terranata Winston Churchill Inc. v. Teti Transport Ltd. et al., 2020 ONSC 7577, 16 C.L.R. (5th) 315, at para. 52. In that case, Vella J. observed, “[i]n my view, claims over/contribution and indemnity clauses are usual elements of a standard general release. The court will therefore imply these types of provisions as terms of standard general releases, unless expressly carved out or narrowed by the parties prior to reaching a settlement.” In Haider v. Rizvi, 2023 ONCA 354, at para. 32, however, this court clarified that the intention of Vella J. in this analysis “was not to default to a standard form of release, but rather to determine the objective intentions of the parties based on the settlement they had concluded.”

[23] In this case, the objective intention of the parties was to require the beneficiaries to sign releases releasing the estate and the estate trustees. Not only was the specific form of the release (and whether it would include a no claims over clause) not discussed at the time of settlement, as noted above, Ms. Farrell was clear in her evidence that she never intended a release of Mr. Gunn. If she had insisted on a release that had the effect of precluding a claim against Mr. Gunn, Mr. Strickland’s evidence was clear that the release of Gunn was never part of the settlement and the motion to enforce the settlement would have failed. Against this backdrop, the appellant abandoned his opposition to the motion to enforce because no such release was being insisted upon.

[24] With respect to the second issue, the fact that Mr. Gunn may have had defences to such subsequent litigation, if brought, including a potential limitations argument, has no bearing on whether such litigation was left open by the settlement document. The trial judge did not err in declining to determine the limitations issue that might arise in litigation against Mr. Gunn if such litigation were pursued by the appellant. She also did not err in concluding that a potential limitations defence would in no way preclude the appellant from pursuing litigation against Mr. Gunn if he wished.

[25] In short, there was no basis in the record before the trial judge to find that Mr. Strickland had failed to follow the appellant’s instructions or that Mr. Strickland bound Mr. Wiener to any settlement provisions without instructions. We reject the appellant’s submission that the trial judge misapprehended the record in reaching the conclusions she did.

Disposition

[26] For these reasons, the appeal is dismissed.

[27] The respondents are entitled to costs. In accordance with the agreement of the parties on the quantum of costs, the appellant shall pay costs in the amount of $15,000 all-inclusive, to the respondents.

“K. van Rensburg J.A.”

“L. Sossin J.A.”

“J. Dawe J.A.”

[1] While the appellant has indicated that he may also want to sue Mr. Eitel, the focus of submissions and the focus of the trial judge’s decision was on the ability to sue Mr. Gunn. Moving forward, we will therefore refer only to the claim against or ability to sue Mr. Gunn. However, this should be read as also applying to any claim against or ability to sue Mr. Eitel.