CITATION: Crabb v. Ellis, 2010 ONSC 5200
DIVISIONAL COURT FILE NO.: 219/09
DATE: 20100921
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
THEN R.S.J., MATLOW AND SWINTON JJ.
BETWEEN:
BRIAN CRABB and LE PHAN TRANG a.k.a. TINA TRANG
Plaintiffs
(Respondents)
– and –
CLINTON V. ELLIS
Defendant
(Appellant)
Harvey J. Ash, for the Plaintiffs (Respondents)
Benjamin Salsberg, for the Defendant (Appellant)
HEARD at Toronto: September 21, 2010
swinton j.
[1] The trial judge gave thorough reasons finding that the parties made an agreement to split the proceeds of the settlement around April 2005. He concluded that a 50/50 split of the settlement funds was reasonable, and the agreement was not illegal because it was made before the appellant’s undertaking to the insurer in May 2006 not to pay any of the settlement funds to the respondent.
[2] The trial judge did not err in finding a legally valid agreement. There was evidence to support his finding that the appellant agreed to split the settlement funds in April 2005.
[3] The trial judge did not err in law in concluding that the parties agreed to a “reasonable” split of the proceeds. As stated in S.M. Waddams, The Law of Contract, 5th Ed. (Toronto: Canada Law Book Inc., 2005), p. 35,
A court can fill in gaps in an agreement with “reasonable” terms. In this case the trial judge took into account the amount of recovery, the time spent by the appellant, the respondent’s reasonable reliance on the appellant’s promise to share his fee and the appellant’s offer to pay the respondent $16,507.49. He concluded that a 50/50 split of the settlement was fair. He did not err in law in implying a term in the contract about the amount payable, and there was no palpable and overriding error in the amount he implied.
[4] The trial judge did not err in rejecting the argument that the agreement was unenforceable for illegality because of the appellant’s undertaking given to the insurer’s lawyer. There was no evidence that the respondent was aware of the undertaking or complicit in giving it.
[5] Therefore, the appeal is dismissed.
THEN R.S.J.
[6] I endorse the Appeal Book as follows: “This appeal is dismissed for oral reasons delivered by Swinton J. this day. In our view, costs in the amount of $6,000.00 all inclusive is fair and reasonable.”
SWINTON J.
THEN R.S.J.
MATLOW J.
Date of Reasons for Judgment: September 21, 2010
Date of Release: September 24, 2010
CITATION: Crabb v. Ellis, 2010 ONSC 5200
DIVISIONAL COURT FILE NO.: 219/09
DATE: 20100921
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
THEN R.S.J., MATLOW AND SWINTON JJ.
BETWEEN:
BRIAN CRABB and LE PHAN TRANG a.k.a. TINA TRANG
Plaintiffs
(Respondents)
– and –
CLINTON V. ELLIS
Defendant
(Appellant)
ORAL REASONS FOR JUDGMENT
SWINTON J.
Date of Reasons for Judgment: September 21, 2010
Date of Release: September 24, 2010