COURT OF APPEAL FOR ONTARIO

CITATION: Risalsdar v. Ali, 2014 ONCA 59

DATE: 20140123

DOCKET: C57418

Hoy A.C.J.O., Cronk and Epstein JJ.A.

BETWEEN

Jamil Risalsdar, Sajid Kazi and Altaf Qazi

Applicants (Respondents)

and

Muhammed Naeem Ali and Sabaa Yasmine Shaikh

Respondents (Appellants)

Amandeep S. Dhillon, for the appellants

David A. Seed, for the respondents

Heard and released orally: January 17, 2014

On appeal from the judgment of Justice John Murray of the Superior Court of Justice, dated July 2, 2013.

ENDORSEMENT

[1] The respondents are judgment creditors of the appellants. By order dated July 2, 2013, on application by the respondents, the application judge set aside a settlement agreement entered into by the parties on the ground that it was obtained by misrepresentation and, hence, was unenforceable. He also ordered that certain funds now held in trust by the appellant Sabaa Shaikh’s real estate solicitor be released to the respondents to the extent necessary to satisfy their outstanding judgments against the appellants. He therefore also dismissed a cross-application brought by the appellants to enforce the settlement agreement.

[2] The appellants appeal from the application judge’s ruling.

[3] The appellants advance three main arguments in support of their appeal. First, they submit that the application judge erred by making key factual findings that are not supported by the evidentiary record. In particular, they say that the application judge erred by finding that: (1) they induced the respondents to enter into an agreement to settle their claims against the appellants by way of misrepresentations regarding the appellants’ financial affairs; and (2) the misrepresentations in question were relied upon by the respondents in concluding the agreement.

[4] We would not give effect to this ground of appeal.

[5] The application judge found that, notwithstanding the respondents’ contention to the contrary, the parties entered into an agreement to settle the respondents’ claims against the appellants. He also found, however, that the respondents were induced to enter into the settlement agreement by the appellants’ intentional misrepresentations concerning their ability to pay the outstanding amounts owed under the two judgments and, further, that the respondents relied on those misrepresentations, to their detriment.

[6] There was ample evidence before the application judge to support these findings. The record established that, in late May 2012, a solicitor who acted for at least the appellant Muhammed Ali and who was in communication with the appellant Sabaa Shaikh, informed a lawyer who was attempting to collect on the debts owed to the respondents that:

(1) the appellants “do not have any further ability to raise funds”; and

(2) Mr. Ali believed that, at best, he would “be able to get $1,000 - $2,000 from [the appellant Sabaa Shaikh]”.

[7] Following these statements, the lawyer who was attempting to recover the respondents’ funds submitted a settlement offer to Mr. Ali’s solicitor. It is that offer that formed the basis of the settlement later sought to be enforced by the appellants.

[8] However, there was evidence that when the statements quoted above were made, and unbeknownst to the respondents, Ms. Shaikh had agreed to sell the appellants’ former matrimonial home, against which the respondents had registered executions, and that the transaction was scheduled to close within days. Further, the anticipated proceeds of sale were sufficient to pay the outstanding monies owed to the respondents.

[9] In these circumstances, the application judge was fully justified in setting aside the settlement agreement on the basis of material misrepresentations. The appellants have failed to demonstrate that the application judge’s impugned findings are tainted by palpable and overriding error. Accordingly, there is no basis for appellate intervention with these findings.

[10] The appellants next argue that the application judge erred by failing to convert the competing applications before him into a trial of an issue to determine the enforceability of the settlement agreement. We disagree.

[11] At no time did the appellants seek an order from the application judge for the trial of an issue. Nor, in light of the written record before the application judge, was a trial required to resolve the question whether a binding and enforceable settlement agreement had been entered into. The appellants essentially acknowledged as much in their cross-application when they sought, as primary relief, a declaration that an enforceable settlement agreement had been entered into by the parties and orders compelling its enforcement. The application judge’s findings regarding the existence of an enforceable settlement agreement responded in part to the issues raised in the appellants’ own cross-application.

[12] Finally, the appellants submit that the trial judge erred by failing to provide any or sufficient reasons for his ruling. We reject this argument.

[13] The application judge provided oral reasons for the core of his decision and supplemented those reasons with a short written endorsement. He also inquired of counsel whether any of the parties wished him to reserve his decision in order to deliver lengthier, written reasons. None of the parties requested that he do so.

[14] Although the application judge’s reasons are expressed in brief compass, when viewed in light of the entire record, as they must be, they meet the standard for sufficiency of reasons set out in R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869.

[15] The appeal is dismissed. The respondents are entitled to their costs of the appeal, fixed in the total amount of $11,400, inclusive of disbursements and all applicable taxes.

“Alexandra Hoy A.C.J.O.”

“E.A. Cronk J.A.”

“Gloria Epstein J.A.”