Court of Appeal for Ontario

Date: September 30, 2019 Docket: C65764

Judges: Huscroft, Paciocco and Nordheimer JJ.A.

Between

Gary A. Bennett Applicant (Respondent on Appeal)

and

Dawn M. Bennett, Grace Bennett, Roy Bennett, Karen Bennett, Mississauga Law Chambers Inc., Bennett Law Management Inc. and Bennett Law Chambers Professional Corporation Respondents (Appellants on Appeal)

Counsel

Micheal Simaan, for the appellants

Mark A. Ross and Sarah Walker, for the respondent

Heard and released orally: September 27, 2019

On appeal from: the order of Justice Lucy McSweeney of the Superior Court of Justice, dated July 20, 2018 with reasons reported at 2018 ONSC 4318.

Reasons for Decision

[1] The appellants appeal from the judgment granted by the application judge that enforced a term of Minutes of Settlement entered into between the parties.

[2] The Minutes of Settlement dealt with various proceedings that were outstanding between the parties, all of which arose out of a failed business arrangement between the parties. The business arrangement, in turn, arose out of a failed law practice shared between the principals Gary and Dawn Bennett. Gary and Dawn are siblings. Roy and Grace are their parents and Karen is another sibling.

[3] Two principal issues are raised by the appellants. One is that the application judge erred in refusing to grant them an adjournment of the hearing of the application. The other is that the application judge erred in concluding that paragraph one of the Minutes of Settlement was a separate enforceable term. The appellants contend that the Minutes of Settlement must be read as a whole and that the respondent is not entitled to enforce one term of the Minutes of Settlement when he is (allegedly) in breach of other terms.

[4] We do not accept either of the appellants' arguments. It is a matter of discretion for the presiding judge to decide whether or not to grant an adjournment requested by a party: Toronto-Dominion Bank v. Hylton, 2010 ONCA 752 at para. 36. In this case, the issue of whether the respondent was entitled to enforce paragraph one of the Minutes of Settlement was a separate "threshold" issue, a fact acknowledged by counsel for Dawn. It was within the purview of the application judge to conclude, given that fact, that an adjournment for the purpose of filing material was unnecessary in order to properly determine that threshold issue.

[5] In terms of the decision on the merits, we agree with the application judge that paragraph one of the Minutes of Settlement was a separate enforceable obligation that did not depend on other issues that may have arisen between the parties. The Minutes of Settlement expressly provided that the sum in question would be paid by the appellants to the respondent's lawyer in trust by a set date. Those monies were then to be released to the respondent once he transferred certain shares, which he did. The Minutes of Settlement expressly contemplated the respondent being able to separately enforce that obligation. The fact that the appellants contend that the respondent owes them other amounts does not impact on the appellants' obligation to make the payment required by paragraph one.

[6] That said, in reaching our conclusion, we wish to make it clear that we are not expressing any views on the application judge's analysis regarding equitable set-off nor with respect to her conclusion regarding the impact on a claim being made for equitable set-off in the absence of any counterclaim by the appellants. Even if equitable set-off could be properly raised, in the factual circumstances of this case, it would be inequitable to deny payment of the separate obligation for which the parties contracted.

[7] The appeal is dismissed. The respondent is entitled to his costs of the appeal fixed in the amount of $10,000, inclusive of disbursements and HST.

"Grant Huscroft J.A." "David M. Paciocco J.A." "I.V.B. Nordheimer J.A."