COURT FILE NO.: 289/02

DATE: 20030121

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

blair r.s.j., lane and caputo jj.

B E T W E E N:

MUNICIPAL MAINTENANCE AND RESTORATION LTD.

Appellant

• and -

YORK CONDOMINIUM CORPORATION #25 and CHEVAL DEVELOPMENTS & PROPERTY MANAGEMENT

Respondents

Gregory T.A. Gryguc, for the Appellant

Reuben S. Botnick, for the Respondents

HEARD: January 21, 2003

BLAIR R.S.J.: (Orally)

1The appellant, Municipal Maintenance & Restoration Ltd., appeals from the order of Swinton J., dated April 15, 2002, whereby its motion for summary judgment based on minutes of settlement was dismissed.

2Municipal Maintenance had a contract with the respondent, YCC #25, for the provision of ground maintenance services. There was a dispute regarding payment for these services. An action was commenced.

3On June 18, 2001, the parties executed minutes of settlement. In accordance with the minutes of settlement the defendant agreed to pay $28,000, the amount owing for services, in six monthly installments of $4,666.66 each. In the event the payments were not made when due (subject to replacement by certified cheque within 3 business days) Municipal Maintenance was to be entitled to take out a consent Judgment for $50,000, less any payments actually made.

4In a letter to appellant's counsel, dated June 25, 2001, YCC #25's counsel confirmed,

"…that if any of the cheques does not clear, your office will notify our office forthwith and our client will have three days in which to provide a certified cheque to replace the payment."

5On the motion for summary judgment Municipal Maintenance alleged that YCC #25 had defaulted in making the last payment on December 1, 2001. This was because the cheque was dishonoured by the respondent's bank as a result of a change in administration at the Condominium Corporation. A replacement cheque was provided to the appellant as soon as this came to the attention of the respondent. Unfortunately there was an erroneous shortfall of $300.66. This too was corrected as soon as the respondent was apprised of the problem.

6Justice Swinton exercised her discretion under Rule 49.09 and declined to enforce the $50,000 payment and grant summary judgment. In our view, she was correct in doing so. Rule 49.09 provides a discretion to the Court on whether or not to enforce a settlement taking into account all of the circumstances: see Pukec v. Durham (Regional Municipality) Police Service [2001] O.J. No. 1587 (Ont. S.C.J.). This is what the Motions Judge did.

7We can find no palpable or overriding error of fact on her part and she exercised her discretion on proper principles of law bearing in mind the "penalty" nature of the $50,000 payment clause, the fact that all payments had been made except the final one and that the difficulties with the final payment were explicable in the circumstances and full payment was made as soon as the problems were brought to the respondent's attention as contemplated in the aforementioned letter between counsel.

8The appeal is therefore dismissed. I have endorsed the appeal book as follows: "The appeal is dismissed for oral reasons delivered by Blair R.S.J. The respondent is entitled to its costs of the appeal fixed at $2,000 plus GST."

___________________________

BLAIR R.S. J.

___________________________

LANE J.

___________________________

CAPUTO J.

Date of Reasons for Judgment: January 21, 2003

Date of Release: January 27, 2003

COURT FILE NO.: 289/02

DATE: 20030121

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

blair r.s.j., lane and caputo jj.