Court of Appeal for Ontario

Citation: A.C. Concrete Forming Ltd. v. JAC Concrete Structures and Drain Inc., 2018 ONCA 272

Date: 2018-03-12

Docket: C64509

Panel: Simmons and Pepall JJ.A. and Fragomeni J. (ad hoc)

Parties

Between

A.C. Concrete Forming Ltd. Plaintiff (Respondent)

and

JAC Concrete Structures and Drain Inc., Joseph Tavares and The Estate of Joseph Tavares, deceased, by its Litigation Administrator and Executor Grace Tavares Defendants (Appellants)

Counsel

Dennis Touesnard, for the appellants

Amanda Pilieci, for the respondent

Hearing and Decision

Heard and released orally: March 12, 2018

On appeal from: The judgment of Justice V. Chiappetta of the Superior Court of Justice, dated October 3, 2017.

Reasons for Decision

[1] Motion to Enforce Settlement

On a motion to enforce a settlement, the motion judge found that following a meeting on February 3, 2016, the respondent, by its counsel, and Ms. Tavares, litigation administrator and executor of the then deceased personal defendant, entered into a verbal settlement agreement on February 9, 2016. The motion judge concluded that rule 49 had no application in the circumstances. Rather, she determined that the motion before her was akin to a summary judgment motion. Counsel for the appellants did not object to her proceeding on that basis.

[2] Conflicting Evidence

Although there was conflicting evidence on the motion concerning whether a settlement agreement had been reached, the motion judge concluded it was appropriate to proceed in the interests of efficiency and access to justice and that oral evidence was unnecessary to assess credibility of the conflicting witness statements.

[3] Motion Judge's Findings

Ultimately, the motion judge accepted the respondent's evidence that a settlement had been reached and rejected the appellants' evidence that it had not based on the following factors:

(1) on March 7, 2016, respondent's counsel sent Ms. Tavares a draft order and consent reflecting the terms of the alleged settlement and asked that she execute the consent;

(2) Ms. Tavares acknowledged receipt of same by voice mail left on March 15, 2016;

(3) respondent's counsel sent follow-up communications requesting the return of the executed documents on March 22, 2016 and April 20, 2016 referencing the fact of a settlement and Ms. Tavares did not respond. While Ms. Tavares' explanation that her husband had a stroke in June 2016 explained her failure to respond in the months immediately following that event, it did not explain her failure to object to the documentation and the assertion of a settlement in the several months prior to that event or after October 2016 when she returned to work;

(4) Ms. Tavares' claims that she felt pressured and scared at the February meetings were not credible in light of her experience in the legal field and the presence of her brother's two adult children with her at both meetings; and

(5) the estate made no attempt to continue with the litigation after the February 9, 2016 meeting.

[4] First Issue on Appeal: Rule 49.09

The appellants raise three main issues on appeal. First, they argue that the motion judge erred in failing to apply the two-part test under rule 49.09 in determining whether the settlement should be enforced.

[5] Rule 49 Does Not Apply

We do not accept this submission. No rule 49 offers were served. Accordingly, on a proper reading of rule 49, it does not apply to this case. The motion judge was correct in making this determination.

[6] Second Issue on Appeal: Genuine Issue Regarding Intent

Second, the appellants argue that the motion judge erred in finding there was no genuine issue regarding whether the parties intended to create a legally binding agreement.

[7] No Palpable and Overriding Error

We reject this argument. As set out above, the motion judge carefully considered and gave detailed reasons for finding that there was a legally binding agreement. The appellants have demonstrated no palpable and overriding error in this finding.

[8] Third Issue on Appeal: Analogy to Rule 49 Test

Third, the appellants argue that the motion judge erred in failing to consider, by analogy to the rule 49 test, whether any settlement agreement that may have been reached should be enforced.

[9] Submission Not Made Below

We reject this submission. It was not made in the court below. In any event, even assuming a two-part test is applicable, on our reading of her reasons, the motion judge fully considered all relevant factors impacting whether the settlement should be enforced.

[10] Appeal Dismissed

The appeal is therefore dismissed. We would clarify, however, and it is conceded on appeal, that the judgment does not apply to the corporate defendant.

[11] Costs

Costs of the appeals are to the respondent on a partial indemnity scale fixed in the amount of $7,500 inclusive of disbursements and all applicable taxes.

Janet Simmons J.A.

S.E. Pepall J.A.

Fragomeni J. (ad hoc)