Court File and Parties
CITATION: 1648290 Ontario Ltd. v. Akhavan, 2018 ONSC 6122
DIVISIONAL COURT FILE NO.: 178/18
DATE: 20181015
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
LEITCH, MEW and MYERS JJ.
BETWEEN:
1648290 ONTARIO LTD., O/A DEALER SOLUTIONS CANADA
Philip Underwood, for the Plaintiff (Appellant)
Plaintiff (Appellant)
– and –
FAIZEL BHABHA, SAMIR AKHAVAN, CARS OF DISTINCTION INC., PETER HEASTY and REUBEN MARCELINO
Travis Walker, for the Defendant (Respondent in Appeal), Samir Akhavan
Defendants (Respondent in Appeal)
– and –
FAIZEL BHABHA, SAMIR AKHAVAN
Travis Walker, for the Plaintiff (Respondent in Appeal), Samir Akhavan
Plaintiffs by Counterclaim (Respondent in Appeal)
– and –
1648290 ONTARIO LTD., O/A DEALER SOLUTIONS CANADA and FARID AHMAD
Philip Underwood, for the Defendant to the Counterclaim (Appellant)
Defendants to the Counterclaim (Appellant)
HEARD at Toronto: October 15, 2018
Oral Reasons for Judgment
LEITCH J. (Orally)
[1] The issues raised on this appeal are whether the motions judge erred in her finding that the parties had reached a settlement agreement during the July 25 phone call and whether she erred in that holding despite the lack of consensus regarding the specific terms of what the appellant’s assert is a non-standard release agreement.
[2] In relation to these issues, which raise a question of fact with respect to the first issue and a mixed question of law and fact with respect to the second issue, the decision of the motions judge is entitled to deference.
[3] We are satisfied that it was open to the motions judge to find at para. 46 of her reasons that, based on the July 25 email memorializing the call earlier on July 25, responded to by Mr. Walker in an email in which he stated the terms of the settlement were agreed upon save for the terms of the release which had not yet been reviewed with his client, the parties agreed to the terms of settlement that would include a mutually agreeable release with a confidentiality clause.
[4] In other words, the record establishes that the parties agreed on the monies to be paid, that invoices would be delivered, that a release would be signed, there would be a confidentiality agreement and a without costs dismissal of the action.
[5] The only outstanding item to be ultimately agreed on was the language of the release. It was not an error to conclude that only the language of the release remained outstanding and the language of the release was not an essential term of the settlement agreement.
[6] The requirement of confidentiality was not contested by the defendants.
[7] We are satisfied the proposed form of release contained standard terms.
[8] As a result, the motions judge made no error in reaching her findings and conclusions. Accordingly, the appeal is dismissed with costs to the respondents fixed in the amount agreed upon by counsel.
[9] I have endorsed the Appeal Book and Compendium of the Appellant, 1648290 Ontario Ltd., o/a Dealer Solutions Canada as follows: “This Appeal is dismissed for oral reasons given. Costs to the Respondent fixed at $7500 all inclusive.”
LEITCH J.
I agree
MEW J.
I agree
MYERS J.
Date of Reasons for Judgment: October 15, 2018
Date of Release: October 16, 2018
CITATION: 1648290 Ontario Ltd. v. Akhavan, 2018 ONSC 6122
DIVISIONAL COURT FILE NO.: 178/18
DATE: 20181015
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
LEITCH, MEW and MYERS JJ.
BETWEEN:
1648290 ONTARIO LTD., O/A DEALER SOLUTIONS CANADA Plaintiff (Appellant)
– and –
FAIZEL BHABHA, SAMIR AKHAVAN, CARS OF DISTINCTION INC., PETER HEASTY and REUBEN MARCELINO Defendants (Respondent in Appeal)
– and –
FAIZEL BHABHA, SAMIR AKHAVAN Plaintiffs by Counterclaim (Respondent in Appeal)
– and –
1648290 ONTARIO LTD., O/A DEALER SOLUTIONS CANADA and FARID AHMAD Defendants to the Counterclaim (Appellant)
ORAL REASONS FOR JUDGMENT
LEITCH J.
Date of Reasons for Judgment: October 15, 2018
Date of Release: October 16, 2018