COURT OF APPEAL FOR ONTARIO

DATE: 20000524

DOCKET: C33241

RE: MARY-LYNN McMULLEN (Applicant/Appellant)

- and - ANDRE M. DUROCHER and SHARON DUROCHER

(Respondents/Respondents in Appeal)

BEFORE: LABROSSE, LASKIN and MOLDAVER JJ.A.

COUNSEL: Benjamin F. Pritchard,

for the applicant/appellant

Larry Peterson,

for the respondents

HEARD: May 23, 2000

On appeal from the order of Mr. Justice M. Bolan dated November 8,

1999

E N D O R S E M E N T

LABROSSE and MOLDAVER JJ.A.:

[1] We are not persuaded that the motions judge was in error in

concluding that there was a binding settlement based on the offer

and acceptance exchanged between the solicitors for the parties.

[2] Nor are we persuaded that the motions judge erred in

refusing to set aside the settlement on the basis of unilateral

mistake.

[3] The appeal is dismissed with costs.

LASKIN J.A. (dissenting):

[4] I view this as a case of unilateral mistake. The

appellant’s lawyer mistakenly failed to include a purchase price

in the May 11, 1999 offer and then failed to send the May 12,

1999 letter. The appellant is entitled to be relieved of her

lawyer’s unilateral mistake if the respondents knew or ought to

have known of the mistake. There is no finding that the

respondents or their lawyer knew of the mistake. In my view,

however, the respondents ought to have known from the surrounding

circumstances that the May 11th letter mistakenly failed to

include a purchase price. The surrounding circumstances include

the following:

(a) There was considerable evidence that the appellant owned

both parts 1 and 2;

(b) The January 18, 1999 letter from the respondents offered a

quit claim on part 2 and agreed to pay $1,000 for part 1;

(c) In the light of the January 18th offer from the respondents,

the May 11th offer from the appellant makes no sense because

it amounts to virtual capitulation. It does not even deal

with part 2, which the respondents had already agreed to

quit claim, and makes no mention of the $1,000 or any sale

price for part 1;

(d) The use of the word “sell” in the May 11, 1999 offer; and

(e) The wording of the May 27, 1999 acceptance letter from the

respondents’ lawyer.

[5] Accordingly, I would relieve the appellant from her lawyer’s

unilateral mistake. I would allow the appeal, set aside the

judgment at trial, and dismiss the motion. In the circumstances

I would make no order for costs, either of the motion or of the

appeal.

(signed) "J. M. Labrosse J.A."

(signed) "John Laskin J.A."

(signed) "M. J. Moldaver J.A."