Court File and Parties

CITATION: Belford v. Barthelotte, 2008 ONCA 465

DATE: 20080612

DOCKET: C48009

COURT OF APPEAL FOR ONTARIO

BORINS, MACPHERSON and GILLESE

BETWEEN:

LORNE BELFORD and ALICE BELFORD

Applicants (Respondents)

and

RICHARD BARTHELOTTE and MARGOT HAUG

Respondents (Appellants)

Counsel:

John M. Connolly for the appellants

David G. Heeley for the respondents

Heard and released orally: June 10, 2008

On appeal from the judgment of Justice Kenneth E. Pedlar of the Superior Court of Justice dated October 25, 2007.

ENDORSEMENT

[1] In an order dated October 5, 2007, Pedlar J. declared the respondents to be owners of a certain parcel of land (the “Order”). In so doing, he purported to enforce a Rule 49 settlement offer which the appellants had prepared and which both sides agree was accepted. However, he made a variation to the original Rule 49 settlement (the “original settlement”) which the respondents sought. The appellants ask this court to set aside the Order and make an order enforcing the original settlement. Their primary ground of appeal is that the application judge had no jurisdiction to vary the original settlement.

[2] Assuming that the appellant’s Rule 49 settlement offer was unconditionally accepted, the appellant concedes that the application judge had the discretion to refuse to enforce the settlement. Based on the record, it is fully apparent why the application judge exercised his discretion and refused to enforce the settlement. The settlement would have occasioned significant prejudice to the respondents, prejudice unknown to them at the time they are said to have accepted the offer and which was easily rectified without prejudice to the appellants. There is no basis on which to interfere with the application judge’s exercise of discretion in refusing to enforce the original settlement.

[3] Although the application judge purported to make the Order as a variation of the original settlement, in our view, the Order is more properly characterized as follows. The application judge refused to exercise his discretion to enforce the original settlement. He then heard the original application and decided it on the merits. Counsel for the appellants has conceded that the application judge had the power to proceed in that fashion.

[4] While the description of the disputed boundary was imprecise at the time the application judge released his reasons for judgment, any imprecision has been resolved by means of the draft plan attached to the Order.

[5] Accordingly, the appeal is dismissed with costs to the respondents fixed at $19,000, inclusive of disbursements and G.S.T.

“S. Borins J.A.”

“J.C. MacPherson J.A.”

“E.E. Gillese J.A.”