DATE: 20031215

DOCKET: C40415

COURT OF APPEAL FOR ONTARIO

RE: MICHAEL BELANGER (Plaintiff) (Appellant) – and – GARRY GIULIANI and JANE GIULIANI (Defendants) (Respondents)

BEFORE: LASKIN, ARMSTRONG and BLAIR JJ.A.

COUNSEL: Ronald G. Chapman

for the appellant

Brian M. Bangay and Gail Wong

for the respondents

HEARD: December 3, 2003

RELEASED ORALLY: December 3, 2003

On appeal from the order of Justice Paul Rouleau of the Superior Court of Justice dated July 21, 2003.

E N D O R S E M E N T

[1] The issue on this appeal is whether the motions judge erred in concluding that the minutes of settlement did not contain all the essential terms necessary to constitute an enforceable agreement. In our view he did err.

[2] The motions judge reached his conclusion because paragraph 4 of the minutes provides that the easement agreement and the licensing agreement were to form part of the judgment to be issued, and because, in his view, the terms of those two agreements still had to be negotiated by the parties. In our view, however, the essential terms of the easement agreement were set out in paragraphs 1 and 2 of the minutes and the essential terms of the licensing agreement were set out in paragraph 3 of the minutes. No further negotiations were required.

[1] Our view is supported by the record of why the deal between the parties fell apart. The deal fell apart solely because the appellant, Mr. Belanger, refused to contribute to the $2000 costs of obtaining committee of adjustment approval for the easement. When the dispute over payment of the $2000 surfaced the Guilianis did not contend there were outstanding issues over the terms of either the easement agreement or the licensing agreement that the parties had yet to resolve. Whatever complaints they may have voiced to their own lawyer, they made no complaint about the terms of these two agreements to Mr. Belanger or his lawyer. Thus, this appeal turns on the narrow question whether the Giulianis were justified in resiling from the minutes of settlement because of the dispute over the $2000. We do not think that they were justified for two reasons.

[2] First, we think that the obligation undertaken by the Giulianis to grant the easement carried with it the obligation to assume the costs of obtaining committee approval for it. In other words, the Giulianis were required to pay the $2000 and were not justified in looking to Mr. Belanger for contribution.

[3] Second, at worst the dispute over the $2000 was one of those minor matters that the parties in paragraph 4 of the minutes of settlement had expressly agreed could be resolved by a judge.

[4] For these brief reasons we have concluded that the minutes of settlement constituted an enforceable agreement between the parties. Therefore we allow the appeal, set aside the judgement of the motions judge and in its place grant judgment in accordance with the minutes of settlement.

[5] The appellant shall have his costs of the motion in the amount of $1500 and his costs of the appeal in the amount of $2500, both sums inclusive of disbursements and GST.

“John Laskin J.A.”

“Robert P. Armstrong J.A.”

“R.A. Blair J.A.”