COURT OF APPEAL FOR ONTARIO

CITATION: Di Gennaro v. BMO Nesbitt Burns Inc., 2013 ONCA 366

DATE: 20130604

DOCKET: C56515

Winkler C.J.O., Rouleau and Hoy JJ.A.

BETWEEN

Battista Di Gennaro, Franca Di Gennaro and Paula Di Gennaro

Plaintiffs (Appellants)

and

BMO Nesbitt Burns Inc., Angelo Mattina and The Bank of Montreal

Defendants (Respondents)

James Brown, for the appellants

David Quayat and Mark Veneziano, for the respondents

Heard and released orally: May 27, 2013

On appeal from the order of Justice Thomas McEwen of the Superior Court of Justice, dated January 7, 2013.

ENDORSEMENT

[1] The appellants appeal the January 7, 2013 order of the motion judge enforcing a settlement entered into between the appellants and the respondents by way of minutes of settlement dated February 24, 2011.

[2] Essentially, the appellants argue that the motion judge erred in finding that the parties had entered into a binding settlement. They submit that the provision in the minutes of settlement that the appellants “shall execute a release satisfactory to all parties” rendered the minutes of settlement an offer to settle conditional upon the execution of such a release.

[3] They also argue that while the word “shall” imposes a mandatory obligation to perform, the word “satisfactory” gives the parties an absolute discretion. They submit the minutes of settlement are accordingly ambiguous and contradictory and cannot be enforced.

[4] In our view, the appellants’ submissions are without merit. The motion judge found that the parties had agreed to the form of the release. The appellants do not challenge that finding. Indeed, in his affidavit in response to the respondents’ motion to enforce the settlement, the appellant, Battista Di Gennaro, submitted that the appellants had agreed to the form of release.

[5] In the result this appeal is dismissed, with costs, in the agreed-upon amount of $2,500, inclusive of disbursements and applicable taxes.

“Warren K. Winkler C.J.O.”

“Paul Rouleau J.A.”

“Alexandra Hoy J.A.”