Court of Appeal for Ontario

Citation: Olivieri v. Sherman, 2009 ONCA 515

Date: 20090625

Docket: C49787

Before: Goudge, Rouleau and Watt JJ.A.

Between

Nancy Olivieri

Plaintiff (Respondent)

and

Barry Sherman, Jack M. Kay, and Apotex Inc.

Defendants (Appellants)

Counsel:

Katherine L. Kay and Adrian C. Lang, for the appellants

Paul Michell and Amy Salyzyn, for the respondent

Heard: May 19, 2009

On appeal from the order of Justice G.R. Strathy of the Superior Court of Justice dated November 28, 2008.

By the Court:

[1] The proceedings that culminate in this appeal began with the motion brought by the respondent, Dr. Olivieri, to enforce the terms of what she says is a settlement of the underlying litigation reached with the appellants.

[2] Campbell J. dismissed that motion, finding no agreement had been reached between the parties. As a result, he did not have to deal with the appellants’ alternative position that if an agreement was found to have been reached, the respondent had repudiated it and therefore the appellants were excused from performance.

[3] Dr. Olivieri appealed, and on July 3, 2007, this court issued reasons allowing the appeal granting Dr. Oliveri’s motion, and declaring that the parties entered into an enforceable agreement on November 5, 2004. Dr. Oliveri had also sought enforcement of the agreement. In response the appellants’ alleged repudiation. The panel found that the issue of alleged repudiation had not been decided, and that the record did not permit the court to make such a determination.

[4] The parties attended before Gillese J.A., who had been a member of the panel, to settle the order. As issued, that order contained paragraph 3: “This court orders the parties to comply with the terms of the settlement agreement, including the provision of a mutual release.” The parties agree that the panel’s reasons do not deal with the issue of compliance addressed in paragraph 3 and that the paragraph was not the subject of discussion between counsel nor was it drawn to the attention of Gillese J.A.

[5] The issue now put before us is the meaning of paragraph 3, and in particular what it means for the appellants’ repudiation claim. That issue was joined when Dr. Olivieri moved for, inter alia, directions regarding the enforcement of the order. The motion judge attempted to interpret the meaning of paragraph 3. He decided that, read in the light of the reasons of the panel, it means that the appellants must comply with the settlement agreement and can assert its repudiation claim, but only in the new action it has commenced rather than in the enforcement proceedings to excuse their performance.

[6] It is perhaps understandable that the motion judge attempted an interpretation of what paragraph 3 of the order of July 3, 2007 means, particularly for the debate about what remains of the appellants’ repudiation claim. However, neither that paragraph nor what it means for the appellants’ repudiation claim are reflected in the reasons issued by the panel nor was the paragraph drawn to the attention of the member of the panel who settled the order.

[7] Indeed, it appears that the panel was not asked to consider either whether paragraph 3 or some modified version of paragraph 3 need be in the order or address the alternative implications for the appellants’ repudiation claim that could be argued to flow from it. In these circumstances, rather than attempting to deduce from the bald language of paragraph 3 what the panel’s answers to these two questions might be, we think justice is better served by putting these questions directly to the panel.

[8] We would therefore allow the appeal, set aside the order below, and substitute an order directing the parties to submit their questions to the panel that decided the appeal. In light of the answers given, the respondent can then seek further directions about how to proceed.

[9] If the parties cannot agree on the costs consequent upon this decision, the court should be advised so that directions can be given for written submissions on costs.

RELEASED: June 25, 2009 “STG”

“S.T. Goudge J.A.”

“Paul Rouleau J.A.”

“David Watt J.A.”