Boulanger v. Great West Life Assurance Company, 2011 ONCA 20

CITATION: Boulanger v. Great West Life Assurance Company, 2011 ONCA 20

DATE: 20110110

DOCKET: C51665

COURT OF APPEAL FOR ONTARIO

Doherty, MacPherson and Cronk JJ.A.

BETWEEN

Lynne Boulanger

Appellant/Respondent on cross-appeal

and

The Great West Life Assurance Company

Respondent/Appellant on cross-appeal

Edward C. Conway, for the appellant/respondent on cross-appeal

Scott D. McTaggart, for the respondent/appellant on cross-appeal

Heard: January 6, 2011

On appeal from the order of Justice Robert L. Maranger, of the Superior Court of Justice, dated June 3, 2010.

ENDORSEMENT

A. Appeal

[1] The appellant appeals from the motion judge’s dismissal of her action on the basis that the parties had arrived at a binding settlement of all the appellant’s claims against the respondent pursuant to a written settlement agreement dated February 21, 2008 signed by both parties following a one-day mediation conducted under the Rules of Civil Procedure.

[2] The motion judge held that the respondent was entitled to an order dismissing the appellant’s claims as set out in the settlement agreement on two grounds. First, he found that the appellant had understood and agreed to the terms of the settlement. Second, he held that the appellant’s lawyer had authority to settle the matter and that the respondent was entitled to rely on the lawyer’s agreement to settle the claims.

[3] The appellant challenges both holdings. In respect of the first, counsel argues that the motion judge erred in finding that the appellant understood and agreed to the terms of the settlement. Counsel does not take issue with the motion judge’s jurisdiction to make those findings, but argues that the evidence does not support them. We disagree.

[4] It is undisputed that the appellant was represented by counsel throughout the entire mediation and that she personally signed the settlement agreement at the conclusion of the mediation. In addition, following the execution of the agreement, the appellant accepted benefits payments made by the respondent pursuant to the terms of the settlement agreement. Those funds have never been returned to the respondent.

[5] Further, the settlement agreement expressly provides for the appellant’s delivery of “a release of all claims under this Policy up to today’s date”. It also sets out the appellant’s agreement to an order dismissing her action against the respondent, and stipulates that the order was not to be filed until certain benefits-related issues had been resolved.

[6] Neither the release nor the dismissal order terms of the settlement agreement exempt any of the appellant’s claims for mental distress damages and punitive and aggravated damages from their ambit. The motion judge concluded that the language of the settlement agreement “is clear and leaves no room for doubt”. In his view, the references to the release of “all claims” and to the “dismissal of the action” are expressed in straightforward language that is “unequivocal and not subject to interpretation”. We agree.

[7] The appellant’s second ground of attack on the dismissed order also fails. The motion judge held:

In any event, even if I were to accept that [the appellant] was not ad idem regarding the Agreement, her counsel was certainly acting with her authority to resolve the matter, and it is clear on the evidence that he considered the matter to be conclusively settled.

[8] Again, we agree. There is no evidence that any limitation of authority regarding the appellant’s counsel at the mediation was ever communicated to the respondent or, indeed, that such a limitation ever existed.

[9] It follows that the settlement agreement is a complete answer to the appellant’s attempt to continue her claims against the respondent for mental distress damages and punitive and aggravated damages.

[10] The motion judge had jurisdiction to refuse to enforce the terms of the settlement agreement if, in his view, the circumstances and the interests of justice so demanded: see Scherer v. Paletta, 1966 CanLII 286 (ON CA), [1966] 2 O.R. 524 (C.A.), at para. 11. In this case, it is clear from the motion judge’s reasons that he declined to do so. We see no basis on which to interfere with this discretionary decision.

[11] The appeal, therefore, is dismissed.

B. Cross-Appeal

[12] The parties accept that the respondent’s motion was brought in part under rule 24.1.15(5) of the Rules. Under that rule, the respondent was entitled to seek judgment enforcing the terms of the mediated settlement agreement. The motion judge, in effect, concluded that a binding settlement agreement was entered into and that the appellant’s counsel had authority to and did compromise all the appellant’s claims against the respondent.

[13] In this context, the respondent cross-appeals from the motion judge’s refusal to enforce paragraph eight of the settlement agreement, whereunder the appellant agreed to execute and deliver “a release of all claims” under the insurance policy at issue, in a form “reasonably satisfactory to counsel for both sides”.

[14] The motion judge provided no reasons for his decision to refuse to enforce the release term of the settlement agreement. Given his conclusions regarding the enforceability of the settlement agreement, which we endorse, we see no basis on which to deny the respondent relief concerning a release, in the terms agreed on in the settlement agreement.

[15] We note, in this regard, that following the execution of the settlement agreement, counsel for the parties agreed on the form of release to be delivered by the appellant. The record indicates that although the appellant was provided with and read a copy of the agreed upon release, she thereafter repeatedly declined to sign it. She persisted in this position notwithstanding the respondent’s performance, at her request, of its obligations under the settlement agreement.

[16] In all these circumstances, we conclude that the motion judge’s dismissal order should be varied to add the following as paragraph three thereof:

This court orders that the dismissal of this Action shall be an absolute bar to any subsequent proceedings whatsoever by the Plaintiff against the Defendant and the London Life Insurance Company, or by the Plaintiff against any person or corporation or other entity in respect of which any claim could arise against the Defendant or the London Life Insurance Company for contribution or indemnity in respect of any and all claims under the Policy up to February 21, 2008.

[17] It follows, therefore, that the cross-appeal is allowed in accordance with these reasons.

C. Costs

[18] The respondent is entitled to its costs of the appeal, fixed in the amount of $2,000.00, inclusive of disbursements and all applicable taxes.

RELEASED:

“JAN 10 2011” “Doherty J.A.”

“DD” “J.C. MacPherson J.A.”

“E.A. Cronk J.A.”