COURT FILE NO.: 190/08
DATE: 20081002
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
CARNWATH, SWINTON AND RAY JJ.
B E T W E E N:
JOANNE BOYAR
Appellant/Plaintiff
- and -
ADDRESSOGRAPH BARTIZAN G.P.
Respondent/Defendant
Elizabeth Dyke, for the Appellant/Plaintiff
Terence J. Billo, for the Respondent/ Defendant
HEARD at Toronto: October 2, 2008
ray J.: (Orally)
[1] An Appellate Court must not interfere with the decision of a motion’s judge unless he erred in law or made a palpable or overriding error (see Housen v. Nikolaisen (2002), 2002 SCC 33, 211 D.L.R. (4th) 577 S.C.J. No. 31 (SCC)).
[2] The Minutes of Settlement provided for the respondent to make a total payment of $27,000.00 within ten days in settlement of all issues in the action. There was no reference in the actual Minutes of Settlement to a continuing obligation for the respondent to make bimonthly salary payments until September 15, 2007 or sooner if the appellant obtained employment.
[3] The appellant’s contention that the contra proferentum rule should be considered is inapplicable since the handwritten Minutes are clear on their face. The learned motions judge made no error of law or fact in concluding that there had been compliance with the Minutes of Settlement by the respondent’s payment of the $27,000.00, except for dismissal of the actions.
[4] The reference to the March 13, 2007 letter in the release does not create an obligation on the respondent to make continuing payments. The appellant had rejected that offer and commenced her proceedings. Any payments made by the respondent were therefore gratuitous payments. There was no obligation on the respondent as was argued to notify the appellant that it was ceasing further salary continuation payments after the settlement was reached.
[5] We cannot say that the learned motions judge erred in law or made a palpable or overriding error in finding that:
“By any objective standard, the construction advanced by the appellant is without foundation or justification.”
[6] The appeal is therefore dismissed.
RAY J.
CARNWATH J.
SWINTON J.
Date of Reasons for Judgment: October 2, 2008
Date of Release: October 8, 2008
COURT FILE NO.: 190/08
DATE: 20081002
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
CARNWATH, SWINTON AND RAY JJ.
B E T W E E N:
JOANNE BOYAR
Appellant/Plaintiff
- and -
ADDRESSOGRAPH BARTIZAN G.P.
Respondent/Defendant
ORAL REASONS FOR JUDGMENT
RAY J.
Date of Reasons for Judgment: October 2, 2008
Date of Release: October 8, 2008