DATE:20020513 DOCKET: C37601
COURT OF APPEAL FOR ONTARIO
McMURTRY C.J.O., LASKIN and CHARRON JJ.A.
B E T W E E N :
RONALD HAROLD BALL
John D. Marshall, for the Appellant
Petitioner (Husband) Appellant
- and -
Philip M. Epstein, for the respondents
JOAN MARILYN BALL
Respondent (Wife) Respondent
Heard: May 7, 2002
On appeal from a decision of Mr. Justice David Aston dated December 21, 2001.
BY THE COURT:
[1] The appellant appeals from the dismissal of his motion for judgment based on an alleged settlement between the parties.
[2] In our view, the Offer to Settle made by the wife on April 30, 2001, and its acceptance on July 23, 2001, cannot be viewed in isolation. The Offer to Settle, on its face, left open the future negotiation of a shareholders agreement between the parties. The wife maintains that the shareholders agreement was an important aspect of the settlement; the husband disagrees with this contention. The motions judge found that the terms of the shareholders agreement were important to the wife and, in our view, that finding is reasonable. Further, the Offer to Settle was accompanied by a covering letter that made it expressly conditional upon further documentation being provided to the wife to satisfy her on the correctness of a number of assumptions underlying the offer.
[3] Upon receiving the husband’s acceptance of the Offer to Settle, counsel for the wife, in a letter to opposing counsel, reminded him of the conditional nature of the Offer. In that letter, counsel for the wife indicated that one of the underlying assumptions of her client was that her yearly corporate salary would continue. In the several letters that followed, the husband provided the documentation that was specifically mentioned in the initial covering letter that accompanied the Offer to Settle, but never referred to the question of the wife’s salary. After providing the documentation in question, the husband took the position that the parties had a binding agreement based on the strict terms of the Offer to Settle, which did not include a reference to the salary.
[4] In our view, the Offer to Settle and its acceptance, when viewed in the context of the negotiations between the parties, did not constitute a binding contract. The two documents merely outlined the parameters for future negotiation between the parties. It was therefore still open to the wife during the course of those negotiations to clarify her position on the issue of her salary. The husband never having agreed to this term and the shareholders’ agreement never having been entered into, there was no settlement agreement to enforce.
[5] The appeal is dismissed with costs fixed on consent at $6,411.70.
RELEASED: May 13, 2002
“McMurtry C.J.O.”
“John Laskin J.A.”
“Louise Charron J.A.”