DATE: 20031222
DOCKET: C40365
COURT OF APPEAL FOR ONTARIO
RE: MARK SHOOM, IN TRUST, GLENCLIFF CONSTRUCTION LIMITED, MAX GOLDLIST, MOLLY GOLDLIST, GLENDA GOLDLIST, JAY GOLDLIST, and CLIFFORD GOLDLIST, IN TRUST (Plaintiffs/Respondents) – and – ACKTION CORPORATION (Defendant/Appellant)
BEFORE: MCMURTRY C.J.O., ROSENBERG and GILLESE JJ.A.
COUNSEL: Eliot N. Kolers and Kate J. Menear for the appellant
Tom Curry for the respondents
HEARD: December 17, 2003
On appeal from the order of Justice Romain W.M. Pitt of the Superior Court of Justice dated June 26, 2003.
E N D O R S E M E N T
[1] We see no reason to interfere with the judgment of Pitt J. On the evidence before him, he was justified in finding that an enforceable settlement agreement had been concluded on Friday, December 6, 2002 and that the agreement was reflected in Mr. Davis’s letter of December 9, 2002.
[2] Mr. Davis’s letter confirmed the settlement in the following terms:
your client will pay to our firm in trust the sum of $18.50 per share for a total amount of $5,355,824.00;
your client will pay interest at the rate of 6% on the sum of $5,355,824.00 from January 24, 2002 to the date of payment;
the action will be dismissed without costs;
the parties will exchange full and final releases.
[1] Putting the appellant’s position at its best, Mr. Sahi left the meeting on December 6th believing that the method of satisfying the settlement price had yet to be agreed upon, even though he never expressly raised that matter in the settlement meeting on December 6th. Despite this belief, neither Mr. Sahi nor his counsel, acting upon Mr. Sahi’s instructions, made any response to the December 9th letter. As the motions judge noted, Mr. Davis would have had every reason to treat the lack of response as demonstrating an endorsement of his interpretation of the agreement into which he understood they had entered.
[2] The argument that the parties had not agreed upon all essential terms of the agreement cannot succeed on the facts of this case.
[3] The appellant’s counsel conceded at the hearing of this appeal that the fact that payment is to be made into Mr. Davis’s firm’s trust account, a term expressly set out in the December 9th letter, is consistent only with a cash payment being made for the shares.
[4] Any reasonable person would have understood that Mr. Sahi’s offer to settle the matter for $18.50 per share, without any suggestion that payment was to be other than by way of cash, was a cash offer. This inference is irresistible when considered against the backdrop of the other terms that were expressly agreed to at the meeting, namely, that interest would be paid at the rate of 6% from January 24, 2002 to the date of payment and that that there would be no payment for legal costs incurred by the respondents in pursuing the action.
[5] Accordingly, the appeal is dismissed with costs to the respondent fixed in the amount of $10,000, inclusive of GST and disbursements.
“R.R. McMurtry C.J.O.”
“M. Rosenberg J.A.”
“E.E. Gillese J.A.”