COURT OF APPEAL FOR ONTARIO

CITATION: Hussain v. Sarafian, 2016 ONCA 322

DATE: 20160502

DOCKET: C61339

Doherty, MacPherson and Miller J.A.

BETWEEN

Alamgir Hussain

Plaintiff (Appellant)

and

Daniel Sarafian, Mohammed Altaf Hossain, Gaultam Paul and Mak Azad

Defendants (Respondents)

Alamgir Hussain, acting in person

Amanda Gibson, for the respondents

Heard: April 29, 2016

On appeal from the order of Justice Suhail A.Q. Akhtar of the Superior Court of Justice, dated October 9, 2015.

ENDORSEMENT

[1] The appellant, Mr. Hussain, appeals from an order enforcing the terms of settlement of his action as against the respondents Daniel Sarafian, Gaultam Pual, and Mak Azad (the “settlement respondents”). The basis of the appellant’s action is statements the respondents are alleged to have made at a settlement conference in Small Claims Court in another action.

[2] The appellant has not identified any errors in the reasons of the motion judge, and we dismiss the appeal for the reasons that follow.

[3] On March 3, 2015, the appellant wrote to counsel for the settlement respondents, making an offer to withdraw his claim against them.

[4] The text of the offer was as follows:

“Pursuant to the Rules of Civil Procedure, I would like to make an offer as follows –

a. The Plaintiff will withdraw the claim and the defendants will consent to withdraw

b. Both parties will be agreed to resolve the issues fully and finally and without costs.

Alternatively, Please schedule the dates for Examination of Discovery and Mediation.”

[5] As the motion judge noted, the appellant did not stipulate any deadline for acceptance of the offer.

[6] On March 9, 2015, the appellant sent an email to counsel for the settlement respondents, which simply stated, ‘Please schedule dates for the Discovery and Mediation.’

[7] Later that day, counsel for the settlement respondents wrote to the appellant to advise him that her clients accepted the offer to settle the action on the basis of a dismissal without costs, and stated that she would send a draft of a “full and final release”. That draft release was sent to the appellant on March 11, 2015.

[8] Having received the draft release, the appellant advised counsel for the settlement respondents on March 16, 2015, that he required a letter of apology from the respondents. Counsel for the settlement respondents replied that an apology was not a term of the settlement. Thereafter, the appellant took the position that he had rescinded the offer to settle by his email of March 9, 2015, where he requested counsel for the settlement respondents to schedule dates for examination for discovery and mediation.

[9] The motion judge found that the settlement offer, by proposing “to resolve the issues fully and finally” was an offer to consent to the dismissal of the action as against the settlement respondents, and not simply an offer to withdraw. There was no additional requirement for a letter of apology. The motion judge found that the March 9, 2015 email did not constitute a withdrawal of the offer. A withdrawal of an offer must be clear and unequivocal: D & R Equipment Repairs Ltd. v. Mardave Construction (1989), 1989 CanLII 4318 (ON SC), 69 O.R. (2d) 48 (H.C.J). Tellingly, the appellant only took the position that the settlement offer had been rescinded after he was refused a letter of apology, and he did not renew that argument on appeal.

[10] The appellant has raised multiple grounds of appeal, none of which have any merit.

[11] At root, the appeal is an attack on the findings of the motion judge that: (1) the settlement offer was for the dismissal of the action as against the settlement respondents; (2) the offer was not withdrawn prior to its acceptance; and (3) the settlement is binding on the appellant. These findings are supported by the evidentiary record, are entitled to deference, and there is no basis upon which we could interfere with them.

[12] The appellant now supplements his argument on the first issue by arguing that the settlement was not accepted according to its terms, because it was only accepted by the settlement respondents and not all respondents, and the action remains live against Mr. Hossain. We do not give effect to these submissions. A complete answer to this argument is that the settlement offer did not specify that it was conditional on acceptance by all parties.

Disposition

[13] The appeal is dismissed. The settlement respondents are entitled to their costs of the appeal payable by the appellant in the amount of $4,000.00 inclusive of disbursements and HST.

“Doherty J.A.”

“J.C. MacPherson J.A.”

“B.W. Miller J.A.”