DATE: 20051018
DOCKET: C43263
COURT OF APPEAL FOR ONTARIO
RE:
ERMINIA FUSARELLI and GINA FUSARELLI (Plaintiffs (Respondents)) – and – ARNOLD DUBE (Defendant (Appellant))
BEFORE:
GOUDGE, CRONK AND JURIANSZ JJ.A.
COUNSEL:
Daniel J. Rosenkrantz and Andrew A. Iler
for the appellant
Paul R. Sweeny
for the respondents
HEARD & ENDORSED:
October 14, 2005
On appeal from order of Justice Raymond Harris of the Superior Court of Justice dated February 22, 2005.
A P P E A L B O O K E N D O R S E M E N T
[1] In our view the order appealed from finally disposes of the fundamental issue of whether the action has been settled. The question could not be raised again at trial. Moreover the appeal is not from an order dismissing a claim for $25,000 or less, since the action continues given the order. This court therefore has jurisdiction.
[2] On the merits of the appeal we are of the view that the motions judge correctly found that there was no agreement to settle the action. The original exchange of emails is ambiguous and that ambiguity is not resolved by the subsequent conduct of the parties which at first was equally consistent with the respondents not having agreed to settle and ultimately made that clear. We say nothing about the propriety of exercising discretion not to enforce a settlement in these circumstances, had one been found.
[3] The appeal is dismissed. In all the circumstances, costs to the respondent of $3,500 inclusive of disbursements and G.S.T.