CITATION: Atlas Holdings v. Vratsidas, Canaclean Building Services, Plewa 2011 ONSC 364
DIVISIONAL COURT FILE NO.: 362/10
DATE: 20110117
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
HERMAN J.
BETWEEN:
ATLAS HOLDINGS & INVESTMENTS INC. and ATLAS MAINTENANCE SYSTEMS (A) INC.
Plaintiffs
(Respondents)
– and –
GEORGE VRATSIDAS, CANACLEAN BUILIDNG SERVICES INC., HI TECH CLEANING SERVICES CSI and KRISTOPHER PLEWA
Defendant
(Appellant)
Angela Hewko, for the Plaintiffs (Respondents)
Rod Byrnes, for the Defendant (Appellant), Krzysztof Plewa, improperly named as Kristopher
HEARD at Toronto: January 17, 2011
HERMAN J. (ORALLY)
[1] The appellant is appealing from two orders of Master Glustein dated June 8, 2010. In particular, the appellant is appealing the Master’s refusal to amend the title of proceedings and his provision of an implied release.
The Refusal to Amend the Style of Cause
[2] In his Reasons, the Master indicated that he had no jurisdiction to amend the style of cause after the action was dismissed. However, the issue of the name arose on the execution of the writ and the writ should therefore be amended. While the appellant referred to several cases in which the Court has granted leave to amend the style of cause, none of these cases involve amendments after the conclusion of the action. I see no error in the Master’s determination that he had no jurisdiction to amend the style of cause after the action was dismissed.
[3] I would add that the factum filed by the appellant indicates that should the Court add the name of Krzysztof Plewa to the style of cause, it would allow him to appeal or move for leave to appeal any of the orders made in the last four years. Mr. Plewa has already sought leave to appeal the costs order which leave was denied. This action was settled by an agreement between the parties entered into in May 2008, more than two and a half years ago. It is important to the administration of justice that there be finality of proceedings.
The Implied Release
[4] The Master held that a settlement implies a promise to furnish a release. However, that release must take into account other claims the parties may have. The Master therefore ordered the parties to sign a release which was without prejudice to the plaintiffs’ claims in other actions. In particular, the release referred to an action commenced by the plaintiffs a month after the agreement between the parties.
[5] The appellant submits that if parties want extra terms in their release, they must bargain for them before settlement. In support of his conclusion, the Master cited the Divisional Court decision in Cellular Rental Systems Inc. v. Bell Mobility Cellular Inc., [1995] O.J. No. 721. In that decision, the judge noted that the defendant did not mention the counterclaim in its proposal. She concluded that this would clearly indicate an intention to settle only the main action. Similarly, in this case it was reasonable for the Master to conclude that the plaintiffs would not have given a release that compromised other claims they had.
[6] I would add that the Master’s revisions to the implied release proposed by the appellants, specifically provided that the release was without prejudice to Mr. Plewa’s position that the release was binding in the commercial list action.
[7] I see no error in the Master’s decision and the appeal is therefore dismissed.
COSTS
[8] The appellant seeks substantial indemnity costs of $11,177.44, inclusive. This includes fees of $8,190.00, as well as counsel fees for today’s appearance. In determining costs, the Court is to consider whether any step taken was improper, vexatious or unnecessary. Mr. Plewa seeks to amend the style of cause in order to relitigate matters that were resolved in May 2008. His assertion that the name used throughout the proceeding was not his name is incredulous given that he used that name throughout the course of the litigation. At the same time the costs claimed, are in my opinion, excessive, given the issues involved. The issues were not complex and they were already argued before the Master. For these reasons, costs are awarded in the amount of $4,500, inclusive to the plaintiffs, payable forthwith.
HERMAN J.
Date of Reasons for Judgment: January 17, 2011
Date of Release: January 25, 2011
CITATION: Atlas Holdings v. Vratsidas, Canaclean Building Services, Plewa 2011 ONSC 364
DIVISIONAL COURT FILE NO.: 362/10
DATE: 20110117
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
HERMAN J.
BETWEEN:
ATLAS HOLDINGS & INVESTMENTS INC. and ATLAS MAINTENANCE SYSTEMS (A) INC.
Plaintiffs
(Respondents)
– and –
GEORGE VRATSIDAS, CANACLEAN BUILIDNG SERVICES INC., HI TECH CLEANING SERVICES CSI and KRISTOPHER PLEWA
Defendant
(Appellant)
ORAL REASONS FOR JUDGMENT
HERMAN J.
Date of Reasons for Judgment: January 17, 2011
Date of Release: January 25, 2011