Nigeco Contracting Ltd. v. Aizenstros, 2021 ONSC 2491

CITATION: Nigeco Contracting Ltd. v. Aizenstros, 2021 ONSC 2491

DIVISIONAL COURT FILE NO.: 420/20 DATE: 2021/04/01

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

Sachs, Kristjanson and Ryan Bell JJ.

BETWEEN:

NIGECO CONTRACTING LTD.

Adam Wainstock, for the Plaintiff (Appellant)

Plaintiff (Appellant)

– and –

DAN AIZENSTROS also known as DANIEL AIZENSTROS and ROYAL BANK OF CANADA

Christine Kellowan, for the Defendant (Respondent) Dan Aizenstros also known as Daniel Aizenstros

Defendants (Respondents)

HEARD at Toronto (by videoconference): April 1, 2021

SACHS J. (Orally)

[1]

Analysis

This is an appeal of a discretionary decision. Such decisions can only be set aside on appeal if the judge exercising their discretion committed an error in principle or the decision was clearly wrong. In this case, the motion judge correctly cited the legal principles that governed her decision. One of those principles is that if the court finds that there was a mistake, the court can decline to enforce the settlement. The motion judge considered all of the circumstances and made a finding that there was a mistake with respect to the performance of the settlement and that, therefore, enforcing the settlement would cause an injustice. This finding was available to her on the record before her. Further, this finding was not incompatible with her finding that there were binding minutes of settlement.

2The appellant submits that the motion judge committed an error in principle in finding that a mistake regarding the performance of a settlement can constitute a basis to refuse to enforce the settlement. We do not agree. The applicable case law does not restrict mistakes to mistakes in the formation of a contract.

[3]

Disposition

Thus, we find that the appellant has not met the threshold for overturning a discretionary decision and the appeal is therefore dismissed.

[4]

Costs

As the successful party, the respondent is entitled to his costs of the appeal on a partial indemnity basis, which the parties have agreed should be fixed in the amount of $9,000.00, all inclusive.

___________________________ Sachs J.

I agree

Kristjanson J.

I agree

Ryan Bell J.

Date of Oral Reasons for Judgment: April 1, 2021

Date of Release: April 7, 2021

CITATION: Nigeco Contracting Ltd. v. Aizenstros, 2021 ONSC 2491

DIVISIONAL COURT FILE NO.: 420/20 DATE: 2021/04/01