Court of Appeal for Ontario
Date: October 6, 2017 Docket: C63777 Judges: Sharpe, Blair and Epstein JJ.A.
Between
Kerie Lynn McAfee Applicant (Respondent)
and
Robert McAfee Respondent (Appellant)
Counsel
Robert McAfee, acting in person
Erin MacKenzie, for the respondent
Heard and released orally: October 6, 2017
On appeal from the order of Justice Paul W. Nicholson of the Superior Court of Justice, dated May 11, 2017.
Reasons for Decision
[1] The appellant purported to accept portions of the respondent's offer to settle, most if not all of which favored him, relying on the severability clause that had been put in the offer. In particular, he accepted the term providing that he did not have to pay arrears of child support or spousal support from the date of separation to date.
[2] He did not accept any other essential term of the offer in exchange to resolve the matter. Within hours of the purported acceptance, counsel for the respondent advised the appellant that the severability clause had been included in error and that his partial acceptance of the offer was rejected.
[3] The court has the jurisdiction to correct an inadvertent error in an offer to settle: Milos v. Zagas, [1998] 38 O.R. (3d) 218.
[4] We agree with the motion judge that the mistake made by the respondent's counsel was obvious on the face of the offer and that the severability clause made no sense in the context of this offer. As the motion judge put it at para. 8 of his reasons:
To allow the [appellant] to accept the clauses that financial benefit him and require the [respondent] to litigate all other clauses more than a year after the offer was submitted would be blatantly unfair.
[5] The appellant has failed to demonstrate any error on the part of the motion judge that would justify this court in interfering with the exercise of his discretion to refuse to enforce the terms of the offer the appellant purported to accept.
[6] Accordingly, the appeal is dismissed.
[7] Costs to the respondent fixed at $6000, inclusive of taxes and disbursements.
Robert J. Sharpe J.A.
R.A. Blair J.A.
Gloria Epstein J.A.