Court of Appeal for Ontario
Date: 2019-07-22 Docket: C66116
Judges: Hoy A.C.J.O., Trotter and Jamal JJ.A.
Between
Global Fund Holdings, Corp. Plaintiff (Respondent)
and
Kenneth Hines Defendant (Appellant)
Counsel
Evan Moore, for the appellant Lisa Corne, for the respondent
Heard: July 17, 2019
On appeal from the order of Justice Peter J. Cavanagh of the Superior Court of Justice, dated October 1, 2018.
Reasons for Decision
[1] At the conclusion of the hearing, we dismissed the appeal with reasons to follow. These are our reasons.
[2] This appeal arises from an order enforcing a Settlement Agreement in the amount of USD $200,000.
[3] In the underlying action, Global Fund Holdings, Corp. ("Global") sued Kenneth Hines ("Hines"), alleging that, on the basis of Hines' fraud and false pretences, Global advanced USD $500,000 to him in order to purchase shares in a Panamanian company. It was an alleged sham.
[4] After the parties commenced settlement negotiations, Hines learned that Global had caused criminal charges to be brought against him in Panama. The prosecutor in Panama sent a detention order (equivalent to an arrest warrant in Canada) to the National Police of Panama and the National Migration Service of Panama. As a result of these charges, the following condition was included in the Settlement Agreement that was ultimately entered into:
- Upon receipt of a written confirmation from the prosecutor in Panama, which confirms that the desist of the pretension of the punitive claim has been duly filed at the Panama Penalty Court of Law and that all charges against Hines, LS2027, or the Board of Directors of LS2027 for any matters arising from the dealings with, or complaints made by, Global, Inspirata, Trade Finance Solutions, or Michael Weingarten, and any of their related companies, subsidiaries, employees, officers, directors, assigns, or representatives, as the case may be, are dismissed or withdrawn, Hines hereby irrevocably instructs PDC to pay the sum of USD $200,000 to Global. [Emphasis added.]
"PDC" is the acronym for the Ontario law firm of Prouse, Dash & Crouch, LLP.
[5] Counsel for Global provided documentation to Hines' counsel from the Panama Court to prove that the criminal action against Hines was "declared as extinguished." Relying on the precise wording of paragraph 10, Hines insisted on "written confirmation from the prosecutor in Panama". On July 30, 2018, counsel for Global sent an email to Hines' counsel attaching written confirmation from the Prosecutor of Panama that no criminal charges were being proceeded with against Hines. Global demanded payment of the USD $200,000.
[6] Hines resisted again, this time because of the existence of the outstanding detention order/arrest warrant. According to evidence filed on the motion, the declaration of the Panama Court had not been sent to the National Police of Panama or the National Migration Service of Panama. Consequently, Hines was at risk of arrest if he entered Panama. On this basis, he claimed that the condition in paragraph 10 of the Settlement Agreement had not been satisfied.
[7] The motion judge approached the interpretation of paragraph 10 of the Settlement Agreement with the goal of discerning the objective intentions of the parties: see Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, [2014] 2 S.C.R. 633, at paras. 50-55. He concluded that the condition was satisfied when the prosecutor in Panama provided written confirmation that the charges against Hines were at an end. The motion judge said, in part:
There is no language in paragraph 10 that provides for an additional condition that Global must take steps to ensure that the Panama Court's withdrawal of charges is communicated by it to Panama's National Police or National Immigration Service.
When I consider the surrounding circumstances that existed at the time of the execution of the Settlement Agreement, I am unable to conclude that there is any evidence of such circumstances that should cause me to deviate from the text of paragraph 10 of the Settlement Agreement and introduce an additional condition that would require Global to take steps to ensure that any arrest warrant that was issued in relation to the charges had been withdrawn.
[8] Based on this interpretation, the motion judge made an order enforcing the Settlement Agreement. Moreover, he declined to exercise any residual discretion not to enforce the Settlement Agreement because of the outstanding detention order/arrest warrant.
[9] The appellant submits that the motion judge misapprehended the evidence thereby giving rise to a palpable and overriding error in his interpretation of the Settlement Agreement. It is his position that based on his evidence filed on the motion, he always contemplated, and it was important to him that, in addition to the charges being discontinued against him, there be no detention order/arrest warrant outstanding. He asserted that he would never have signed the Settlement Agreement had he been aware that this was not the case.
[10] When Hines entered into the Settlement Agreement, he was represented by counsel, both in Canada and Panama. The existence of the detention order/arrest warrant was known at the time. He asserts that it was common ground between the parties that the criminal charges encompassed the detention order/arrest warrant. The motion judge rejected this interpretation, noting that there is no reference to this document in the Settlement Agreement. It may have been open to Hines to insist on a version of paragraph 10 that addressed the detention order/arrest warrant. He did not. Moreover, Hines' grievance stems from what appears to be an administrative glitch in terms of one Panamanian agency communicating information to other agencies. In all of the circumstances, we are of the view that the motion judge committed no error in interpreting the Settlement Agreement in the manner that he did. His decision is entitled to deference on appeal: Sattva, at para. 52.
[11] This ground of appeal is dismissed.
[12] The appellant brings a motion to adduce fresh evidence. Some of this evidence was available at the time that the motion judge made his decision. It could have been obtained with due diligence. For this reason, it is inadmissible: see Palmer v. The Queen, [1980] 1 S.C.R. 759, at p. 775 and Sengmueller v. Sengmueller (1994), 17 O.R. (3d) 208 (C.A.), at pp. 210-211.
[13] The rest of the purported fresh evidence consists of letters from the Panama Court to the National Police of Panama or the National Migration Service of Panama informing those agencies of the termination of the proceedings against Hines that were sent after the motion judge made his decision. In this sense, the evidence might be considered "fresh" because it did not exist at the time of the motion. However, this aspect of the fresh evidence application must fail because the evidence does not bear upon a "decisive or potentially decisive issue" on the motion and cannot, "when taken with the other evidence adduced [on the motion], be expected to have affected the result": Palmer, at p. 775. In short, whether the agencies had already been informed that the prosecution of Hines was at an end was irrelevant to the motion judge's interpretation of the Settlement Agreement.
[14] The application to adduce fresh evidence is dismissed.
[15] The appeal is dismissed. The respondent is entitled to its costs in the amount of $13,000, inclusive of taxes and disbursements.
"Alexandra Hoy A.C.J.O."
"G.T. Trotter J.A."
"M. Jamal J.A."