Court File and Parties

CITATION: Biancaniello v. DMCT LLP, 2014 ONSC 5539

DIVISIONAL COURT FILE NO.: 401/14

COURT FILE NO.: CV-12-453362

DATE: 20141006

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: STEVE BIANCANIELLO, NICK ROMANO, PRINOVA TECHNOLOGIES INC., PRINOVA SOFTWARE INC. Plaintiffs/Respondents

AND:

DMCT LLP, COLLINS BARROW and COLLINS BARROW TORONTO LLP Defendants/Moving Parties

BEFORE: Madam Justice Sachs

COUNSEL: Adam Pantel, for the Plaintiffs/Respondents Thomas D. Galligan, for the Defendants/Moving Parties

HEARD at Toronto: September 22, 2014

Endorsement

[1] The defendants seek leave to appeal the April 23, 2014 order of Chapnik J. dismissing their motion for summary judgment.

[2] In my view, there is good reason to doubt the correctness of the order at issue for the following reasons:

(a) The defendants submit that this action is barred by the terms of a release executed by the parties in March of 2008. The motion judge dismissed this argument, finding that when the release was executed the parties never contemplated that the advice the defendants had given the plaintiffs was wrong. While this may be true, there is still good reason to find that the express terms of the release precluded the bringing of the claim that forms the basis for this action. In particular, the wording of the release states that the parties are releasing each other from any claims they “ had, now have or hereafter may, can or shall have for or by reason of any cause, manner or thing whatsoever existing to the present time with respect to any and all claims arising from any and all services provided by [the defendants] to [the plaintiffs] through to and including December 31, 2007, and, without limiting the generality of the foregoing, with respect to any and all claims, counterclaims or defences that were pleaded or could have been pleaded in the action commenced in the Ontario Superior Court of Justice, as court file No. 08-CV-349246 PD3”. It is open to serious debate that this wording is broad enough to cover any claim, even a future claim, in relation to the advice that the defendants gave the plaintiffs prior to December of 2007.

(b) The defendants point to the fact that the plaintiffs’ affiant on the motion for summary judgment admitted that, absent the claims of misrepresentation and unconscionability, the release he executed would bar this action. With respect to the claim of misrepresentation, the motion judge distinguished the Supreme Court of Canada decision in J. Nunes Diamonds Ltd. v. Dominion Electric Protection Co., [1972] S.C.R. 769 (which would appear to preclude a claim of misrepresentation in this case) partly on the basis that the release in this case did not preclude “any other warranties or conditions.” In fact the release at issue specifically provides that “they have not been induced to enter into this Release by reason of any representation or warranty of any nature or kind whatsoever and that there is no condition, express or implied or collateral agreement affecting this Release or which will amend or alter it” With respect to the claim of unconscionability, the plaintiffs’claim does not appear to meet the threshold for that claim set out by the Court of Appeal in Titus v. William F. Cooke Enterprises Inc., [2007] O.J. No. 32148 at paras. 38-52.

(c) In dismissing the defendants’ motion for summary judgment the motion judge applied the “full appreciation” test set out by the Court of Appeal in Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764, [2011] O.J. No. 5431 when the applicable test was the one developed by the Supreme Court of Canada in Hryniak v. Maudlin, [2014] S.C.C. 7, a test that has as one of its main focuses the issue of proportionality, an issue that the motion judge did not consider.

[3] The proposed appeal involves issues concerning the ability of parties to settle claims that they may not have contemplated at the time of the settlement. This issue is an important one that extends beyond the interests of the parties and that could have an impact on the administration of justice.

[4] For these reasons, the motion for leave to appeal is granted. The parties agreed that if I granted leave, the costs of the motion for leave should be reserved to the panel hearing the appeal and it is so ordered.

SACHS J.

Date: 20141006