Court of Appeal for Ontario

Date: 2017-11-22 Docket: C63888

Judges: Sharpe, Epstein and van Rensburg JJ.A.

Between

Plaintiffs (Respondents):

• Mark Crawford
• Nancy Crawford
• Scott Crawford
• Erin Osinchuk
• Chad Osinchuk
• Heather Jay Jayanetti
• Haren Jayanetti

and

Defendants (Appellants):

• Richard Mori, also known as Richard Wayne Mori
• Bonnie Mori, also known as Bonnie Mary Mori
• RBM Golden Consulting Ltd.
• 1093942 Ontario Limited
• New Cordova Mines Ltd.
• Gold Insight Resources 2003 Limited
• Gold Insight Resources 2004 Ltd.
• Gold Insight Resources (2005) Inc.
• Golden Millennium Health Technology Inc.

Counsel

For the Appellants: Robert Burns and John Broderick

For the Respondents: Brett D. Moldaver

Hearing and Release

Heard and released orally: November 20, 2017

On appeal from: The order of Justice M. McKelvey of the Superior Court of Justice, dated May 15, 2017.

Reasons for Decision

[1] The appellants appeal an order enforcing a settlement agreement.

[2] The respondents commenced this action claiming specific performance of an agreement to purchase shares and substantial damages for various causes of action including misrepresentation. They alleged that they had invested $283,500 to purchase shares in a company controlled by the appellants and that the shares had never been delivered.

[3] On September 9, 2016, the appellants made a written offer to settle the action for $428,537. The respondents responded on October 5, 2016 with an offer to settle for $900,000. On November 23, 2016, the appellants' solicitor wrote to the respondents' solicitor indicating that the shares the respondents claimed had been registered in their names. On December 22, 2016, the respondents' counsel accepted the September 9, 2016 offer.

[4] In our view, the motion judge did not err by finding that a settlement had been reached and by enforcing the settlement agreement.

[5] It was open to the motion judge to find that the September 9, 2016 offer was governed by r. 49 and that accordingly, it was not terminated by the respondents' counter-offer. It was also open to the motion judge to conclude that the letter indicating the shares had been registered in the names of the respondents did not withdraw or put an end to the September 9, 2016 offer.

[6] The appellants' central submission is that enforcing the settlement will result in double recovery. There was no evidence as to when the shares had been registered, in particular, whether they had been registered before or after the September 9, 2016 offer. The November 23, 2016 letter made no reference to the September 9, 2016 offer and did not withdraw that offer. Nor was there any evidence of the actual value of the shares. One of the allegations made by the respondents was that the appellants had diluted the value of the shares. As the motion judge observed, the respondents' claim went well beyond specific performance for the delivery of the shares.

[7] We agree with the motion judge that the appellants failed to lead evidence to establish double recovery. We do not accept the submission that taking this record as a whole, it arises by necessary implication that the September 9, 2016 offer was withdrawn or that enforcing the settlement would result in double recovery.

[8] Accordingly, the appeal is dismissed.

[9] Costs to the respondents fixed at $6,500 plus HST, which is inclusive of disbursements.

Robert J. Sharpe J.A.

Gloria Epstein J.A.

K. van Rensburg J.A.