Court File and Parties

Citation: Alves v. Caston, 2010 ONCA 805

Date: 2010-11-29

Docket: C52266

Court of Appeal for Ontario

Before: MacPherson, Juriansz and Epstein JJ.A.

Between

Joaquim Alves

Plaintiff/Appellant

and

Azevedo & Nelson Barristers & Solicitors, TD Meloche Monnex Financial Services Inc., Sigurdson Courtlander & Burns and Christopher Caston

Defendants/Respondents

Counsel:

Doug Wright, for the appellant

Stuart Zacharias, for the respondent Christopher Caston

Heard & released orally: November 25, 2010

On appeal from the judgment of Justice D.M. Brown of the Superior Court of Justice dated May 17, 2010.

Endorsement

[1] The appellant appeals the order of Justice Brown enforcing a settlement agreement that the respondent claimed the appellant had entered into to discontinue his action against the respondent.

[2] We would dismiss the appeal.

[3] First, the appellant submits the offer to settle expired because it was initially stated to remain open for acceptance only until July 31, 2009. That was so, but the subsequent communications of counsel made it clear that the offer remained open until August 7, when the appellant’s counsel accepted it. As the motion judge found, respondent’s counsel, by email, expressly extended the time for acceptance of the offer.

[4] Second, the appellant submits the release that the respondent required to be executed was not an agreed upon part of the settlement. We disagree. The original offer to settle stated that a release, which would be forwarded later, would have to be signed. The respondent provided a draft of the form of the release to be executed to the appellant’s counsel as the settlement offer contemplated. The appellant’s counsel, with the draft release in hand, accepted the offer and advised that he had forwarded the release to the appellant for signature. The acceptance of the offer did not reserve acceptance of the form of release.

[5] Finally, we are not persuaded that there is any basis on which we can interfere with the motion judge’s declining to exercise his discretion to not enforce the concluded settlement. We note there was no evidence filed by either the appellant or his counsel to establish the prejudice that would support such an exercise of the motion judge’s discretion.

[6] Accordingly, the appeal is dismissed.

[7] The respondent is entitled to his costs of the appeal fixed at $3,609.46 inclusive of disbursements and applicable taxes.

“J.C. MacPherson J.A.”

“R.G. Juriansz J.A.”

“Gloria Epstein J.A.”