Schoolhouse Restaurant (Grand Bend) Inc. v. Scrimgeour, 2007 ONCA 802

CITATION: Schoolhouse Restaurant (Grand Bend) Inc. v. Scrimgeour, 2007 ONCA 802

DATE: 20071126

DOCKET: C46435

COURT OF APPEAL FOR ONTARIO

O’CONNOR A.C.J.O., GILLESE and WATT JJ.A.

BETWEEN:

SCHOOLHOUSE RESTAURANT (GRAND BEND) INC.

Plaintiff (Respondent)

and

ELIZABETH SCRIMGEOUR

Defendant (Appellant)

Khalid Baksh and Sharon Hassan for the appellant

Christopher Stanek for the respondent

Heard and orally released: November 22, 2007

On appeal from the judgment of Justice J. Hoilett of the Superior Court of Justice dated November 30, 2006.

ENDORSEMENT

[1] The motion judge found that the parties reached a settlement agreement on July 11, 2005. He found that there were no triable issues and granted judgment in favour of the respondent.

[2] With respect, we think he erred. The appellant’s evidence and that of her lawyer, was to the effect that while the sum of $55,000 had been agreed, there was no overall agreement because the respondent had not agreed to provide releases from the three other shareholders personally. The appellant considered, reasonably we think, that releases from the respondent and the other shareholders were important to her.

[3] The appellant’s position that no agreement had been reached is supported by a letter dated July 20, 2005. In that letter, the respondent’s solicitor offers to settle the matter. In doing so, she required a release from the appellant, but did not offer to provide releases from the respondent or the other three shareholders. Moreover, that letter introduced for the first time a requirement by the respondent that the appellant enter into a non-competition clause.

[4] The letter concludes by saying, “Provided these terms meet with your client’s approval, we shall prepare the necessary documents.” Pausing there, this letter, it seems to us, is strong evidence indicating that the respondent did not consider that an agreement had been reached at that point.

[5] Further, on July 29, the respondent’s counsel sent another letter to the same effect as the July 20th letter. In the July 29th letter she said, “Our client will agree to the following which shall be accomplished fourteen days after your client acknowledges acceptance of this offer.” This letter then went on to set out the terms of the offer, again including a non-competition clause.

[6] This letter is further evidence that the respondent did not consider that an agreement had been reached by that point in time.

[7] After the letter of July 29th was received, further negotiations took place, but no agreement was reached. Throughout, the appellant continued to insist that she receive releases from the three shareholders on a personal basis. The respondent never agreed to provide those releases.

[8] In our view, there is a triable issue as to whether or not an agreement was ever reached between the parties.

[9] In the result, the appeal is allowed and the order below is set aside. Costs are awarded to the appellant for the appeal in the amount of $7,000, inclusive of GST and disbursements. Costs are awarded to the appellant for the proceedings below in the amount of $16,500, inclusive of GST and disbursements.

“D. O’Connor A.C.J.O.”

“E.E. Gillese J.A.”

“David Watt J.A.”