DATE: 20060324

DOCKET: C43820

COURT OF APPEAL FOR ONTARIO

RE:

MARIA OLIVEIRA, JOSE NUNES DE OLIVEIRA, DANNY OLIVEIRA, a minor by his litigation guardian, JOSE NUNES DE OLIVEIRA, MATHEW OLIVEIRA, a minor through his litigation guardian, JOSE NUNES DE OLIVEIRA, JASON OLIVEIRA a minor through his litigation guardian, JOSE NUNES DE OLIVEIRA (Plaintiffs/Appellants) – and – TARJAY INVESTMENTS INC. (Defendant/Respondent)– and THE CORPORATION OF THE CITY OF TORONTO (Third Party/Respondent)

BEFORE:

SHARPE, ARMSTRONG and BLAIR JJ.A.

COUNSEL:

Aliamisse O. Mundulai

for the (Plaintiffs/Appellants)

Naomi Brown for The City of Toronto

Stuart Wright for Tarjay Investments Inc.

HEARD & ENDORSED:

March 22 2006

On appeal from the judgment of Justice Randall Echlin of the Superior Court of Justice dated November 25, 2005.

E N D O R S E M E N T

[1] The appellants seek to set aside the order of Echlin J. dated June 15, 2005 enforcing Minutes of Settlement signed by on behalf of the parties on November 25, 2005 after a mediation. They argue first, that the motion judge should not have accepted the Minutes of Settlement because they were not signed by all the parties – but rather, by the solicitor on behalf of all plaintiffs except Ms. Oliveira who signed herself – and the solicitor did not have adequate authority to settle. Secondly, they submit that Ms. Oliveira signed the Minutes under duress and undue influence of her solicitor. Thirdly, Mr. Mundulai submits that the motion judge erred in approving the settlement on behalf of the minor plaintiffs.

[2] It is well-established law that a solicitor of record has the ostensible authority to bind his or her clients and that opposing counsel are entitled to rely upon that authority in the absence of some indication to the contrary: see Scherer v. Paletta (1966), 2 O.R. 524 (C.A.) and Mohammed v. York Fire and Casualty Insurance Co., [2006] O.J. No. 547 at para. 20 (C.A.). There was no such indication here. Consequently, as between these parties, the plaintiffs are bound by the act of their solicitor.

[3] The sole evidence of undue influence and duress is found in the bald statement of Ms. Oliveira at para. 13 of her affidavit that “I signed the minutes of settlement under duress and undue influence of [my solicitor]”. There is nothing in the record to support that bald allegation and we would not give effect to this ground of appeal

[4] With respect to the approval of the settlement on behalf of the minors, given the nature of the claim and the frail prospects of success, we see no error on the part of the motion judge in approving the settlement on behalf of the minor plaintiffs.

[5] Finally, although not raised in oral argument, the appellants contend in their factum that the motion judge erred in approving the Minutes because they did not settle all the essential terms and therefore, did not evince a mutual intention to enter into a binding agreement. More specifically, they argue there was only an agreement to agree because the Minutes call for the execution of a release that was never signed. We do not agree. The motion judge reviewed the language of the Minutes and noted that they say “the undersigned agree the above matter has been settled in the following terms” (underlining added). The requirement that a full and final release be signed does not mean that a binding agreement has not been reached: see Kaur v. The Manufacturers Life Ins. Co., [1999] O.J. No. 3564 at para. 3 (C.A.) and Bawitko Investments Ltd. v. Kernels Popcorn Ltd. (1991), 79 D.L.R. (4th) 97 (Ont. C.A.).

[6] Accordingly, the appeal is dismissed. Costs to the respondent fixed at $1,000 each. Costs here and below, including the sum payable to the Costa law firm, to be paid pro rata from the $5,000 settlement funds.

“Robert J. Sharpe J.A.”

“Robert P. Armstrong J.A.”

“R.A. Blair J.A.”