Hagel v. Giles et al. [Indexed as: Hagel v. Giles]

82 O.R. (3d) 470

Court of Appeal for Ontario,

Laskin, MacPherson and Cronk JJ.A.

August 31, 2006

Civil procedure -- Mediation -- Parties reaching oral agreement to settle action during mandatory mediation under Rules of Civil Procedure -- Agreement enforceable despite not being reduced to writing and signed -- Confidentiality of mediation session not precluding enforcement of agreement -- Court entitled to consider evidence of what occurred at mediation in relation to settlement agreement where enforceability of agreement is in issue -- Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

An oral agreement to settle an action was reached during a mandatory mediation under the Rules of Civil Procedure. The plaintiff then took the position that [page471] because that agreement was not reduced to writing and signed by the parties and their lawyers, it was unenforceable. The motions judge found that the settlement agreement was enforceable. The plaintiff appealed.

Held, the appeal should be dismissed.

The motions judge did not err in finding that the agreement was enforceable. Enforcement of the agreement was not precluded by the confidentiality of the mediation session. Where the enforceability of a settlement agreement is itself in issue, the court may consider evidence of what occurred at the mediation in relation to the agreement.

APPEAL from the order of Power J., 2006 3964 (ON SC), [2006] O.J. No. 556, 145 A.C.W.S. (3d) 805 (S.C.J.), holding that a settlement agreement was enforceable.

Rules and regulations referred to Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 1.04(1), 2.03, 24.1.15(3)

Emilio S. Binavince, for appellant. Fiona E.S. Porter, for respondents.

Endorsement

[1] Endorsement by THE COURT: -- The appellant in this case concedes that an oral agreement to settle his action was reached during a mandatory mediation conducted under the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. However, because that agreement was not reduced to writing and signed by the parties and their lawyers as contemplated by subrule 24.1.15(3) -- in the form of Minutes of Settlement or otherwise -- at the conclusion of the mediation, the appellant contends that the settlement agreement is unenforceable.

[2] We disagree. On the facts of this case, the parties agreed through their counsel that formal Minutes of Settlement were not required. Moreover, the record indicates that the appellant, in the presence of his counsel, confirmed his agreement to the settlement, indicating that his "mind was made up" and that the settlement was a "final decision". Importantly, as we have said, this is not a case where the existence of a settlement agreement is in dispute.

[3] In these particular circumstances, we conclude that the settlement agreement is enforceable as found by the motions judge. This conclusion is consistent with the conduct of the parties and the purpose of the Rules as reflected in rules 1.04(1) and 2.03.

[4] Nor do we accept the appellant's submission that the confidentiality of the mediation session precludes enforcement of the settlement agreement. Where the enforceability of a settlement agreement is itself in issue, the court is entitled, indeed may be required, to consider evidence of what occurred at the mediation in relation to the agreement. [page472]

[5] Accordingly, the appeal is dismissed. The respondents are entitled to their costs of the appeal fixed in the sum of $5,000, plus disbursements and GST.

Appeal dismissed.