COURT OF APPEAL FOR ONTARIO

CITATION: Huma v. Mississauga Hospital, 2020 ONCA 644

DATE: 20201016

DOCKET: C67510

Rouleau, Miller and Zarnett JJ.A.

BETWEEN

Ioan Huma, Elena Huma and Cristine Huma

Plaintiffs (Appellants)

and

Mississauga Hospital and Queensway Health Centre (Trillium Health Partners), Etobicoke General Hospital (William Osler Health System), Dr. Gregory Sue-A-Quan, Dr. Alan L. Shievitz, Dr. Derek Pereira, Dr. Dana Wilson, Dr. Robert J. McBroom, Dr. Mahin Baqi, Dr. Krystyna Ostrowska, Dr. Sumontra Chakrabarti, Dr. Ilse Lange-Mechelen, Dr. Chikkahanumaiah Devaraj, Dr. Melanie Spring, Dr. Bhavpreet Dham, Dr. Eduard Bercovici, Dr. Eric George Duncan, and John and Jane Doe (representing a number of physicians, health care professionals and/or hospital employees involved in the care and treatment of Ioan Huma at Queensway Health Centre (Trillium Health Partners), Mississauga Hospital and Etobicoke General Hospital (William Osler Health System) from June 14, 2014 to September 30, 2014

Defendants (Respondents)

Ronald P. Bohm and David Scott Lee, for the appellants

Chris Kinnear Hunter, for the respondent physicians

Henry Ngan and Ben Shakinovsky, for the respondent hospitals

Heard: in writing

On appeal from the order of Justice Lorne Sossin of the Superior Court of Justice, dated September 3, 2019, with reasons reported at 2019 ONSC 5115.

REASONS FOR DECISION

INTRODUCTION

[1] The appellants appeal an order granting the respondents’ motion to enforce a settlement under r. 49.09 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. For the reasons that follow, we dismiss the appeal. The motion judge did not err in finding a legally binding settlement agreement, or in refusing to exercise his discretion against its enforcement.

BACKGROUND

[2] In June 2016, the appellants, Ioan Huma, Elena Huma, and Cristine Huma, commenced a medical malpractice action against fourteen physicians and two hospitals. The appellants alleged that as a result of professional wrongdoing by the respondents, including misdiagnosis and lack of timely and proper treatment, Ioan Huma suffered significant injuries including the loss of lower limb function and other impairments. Substantial damages were claimed on behalf of Ioan Huma. Elena Huma (Ioan Huma’s spouse) and Cristine Huma (his daughter) advanced claims under the Family Law Act, R.S.O. 1990, c. F.3.

[3] Although the appellants had legal assistance in preparing their statement of claim, the lawyer who provided that assistance would not go on the record. The statement of claim indicated that the appellants were self-represented.

[4] In April 2017, the respondent hospitals delivered a statement of defence and crossclaim. In March 2018, the respondent physicians delivered a statement of defence and crossclaim.

[5] By the spring of 2018, the lawyer who had been assisting the appellants ceased to do so. By that time, counsel for the respondents had made several inquiries of the appellants as to their intentions to pursue the matter which had gone unanswered.

[6] On May 6, 2018, Elena Huma contacted counsel for the respondent physicians and asked for time for the appellants to consider their options. The next day, counsel for the respondent physicians advised Ms. Huma that, among other things, he would be moving to obtain a court ordered timetable to govern the action. He also asked if the appellants were prepared to dismiss the action on a without costs basis and stated that his clients would likely agree to a without costs dismissal in exchange for a release.

[7] On May 18, 2018, Elena Huma composed and sent an email to counsel for the physicians and counsel for the hospitals (the “May 18 Email”). It read as follows:

Dear Mr. MacLeod and Mr. Morris,

We are sending this email to you to inform you that we decided to dismiss this action (court file CV-16-554699), against all defendant doctors and hospitals, on a without costs basis.

We are sending a letter to both your offices with our signatures to state the above.

Please send us confirmation that this case will be dismissed without any cost to us, and send us the court form. If we need to make any further steps to complete this matter, please let us know.

Sincerely,

Ioan Huma

Elena Huma

Cristine Huma

[8] Counsel for the respondent physicians replied by email the same day confirming that his clients agreed to the dismissal without costs “in exchange for releases from you”. The email indicated that the documentation for signature would be forwarded. On May 22, 2018, counsel for the hospitals sent an email to the appellants, also confirming agreement to the dismissal without costs in exchange for a release, and providing a proposed form of release in favour of the hospitals. On May 24, 2018, counsel for the physicians sent the appellants a form of release in favour of the physicians, and a consent and draft order to dismiss the action without costs, with a request that they be signed and returned.

[9] Ultimately, the appellants refused to proceed with the settlement. They consulted with and retained counsel and indicated that they wished to proceed with the action. The respondents then moved, under r. 49.09 of the Rules of Civil Procedure, to enforce the settlement.

THE MOTION JUDGE’S DECISION

[10] The parties do not quarrel with the motion judge’s overall approach to the r. 49.09 motion, which was to consider two questions: (i) whether a binding agreement to settle was reached, and (ii) whether he should nonetheless refuse to enforce the settlement.

[11] On the first question, the motion judge found that, by the May 18 Email and the surrounding correspondence, the parties had reached a binding agreement on the essential terms of a settlement, namely, that the action would be dismissed and that there would be no costs. To the extent that the releases proffered by the respondents introduced additional terms, such as confidentiality and an acknowledgment or waiver of independent legal advice, these were not essential terms; they were simply matters of implementation that did not form part of the settlement.

[12] On the second question, the motion judge recognized that he had a discretion to refuse to enforce the settlement, but applying the test in Milios v. Zagas (1998), 1998 7119 (ON CA), 38 O.R. (3d) 218 (C.A.), he declined to do so. He found that the settlement was not unconscionable.

THE GROUNDS OF APPEAL

[13] On appeal, the appellants advance two basic arguments.

[14] First, they argue that the motion judge erred in finding an enforceable agreement to settle, in light of the evidence of Elena Huma that she sent the May 18 Email without authority from the other appellants. They argue that the motion judge should have accepted that Elena Huma believed she was only taking an exploratory step toward settlement subject to the other appellants’ approval, which was not given. Accordingly, they say that the requisite intention to create a legally binding contract was absent. The appellants also refer to the inclusion, in the releases, of terms that had not been discussed as a further indication that no binding agreement had been reached.

[15] Second, the appellants argue that the motion judge erred by not exercising his discretion, in the interests of justice, to decline to enforce the settlement. They maintain that he failed to consider important factors in his unconscionability analysis, such as the relative prejudice to the parties; that the appellants were self-represented at the relevant time; that Ioan Huma did not authorize the settlement; and that the action was not shown to be without merit. It would be grossly unfair, and thus unconscionable, to hold them to the terms of the settlement.

ANALYSIS

[16] We do not accept the appellants’ arguments.

[17] On the question of whether a binding settlement agreement was reached, the unexpressed views of Elena Huma—that she thought she was taking an exploratory step—are properly ignored. The conduct of the parties, including the language they used, is viewed objectively in order to determine whether a contract has been made: Olivieri v. Sherman, 2007 ONCA 491, 86 O.R. (3d) 778, at para. 44.

[18] The motion judge considered whether the words used in the emails, viewed objectively, manifested agreement on the essential terms of a settlement, as opposed to a situation where the parties were engaged in continuing negotiation. The May 18 Email proposed two essential but straightforward terms of settlement—the action was to be dismissed, and no costs were to be sought. The respondents accepted those terms.

[19] Although the respondents, in accepting, each introduced a request for a release, that was not, in and of itself, the introduction of a new term inconsistent with the existence of a settlement agreement. “Settlement implies a promise to furnish a release unless there is a contractual agreement to the contrary”: Hodaie v. RBC Dominion Securities, 2011 ONSC 6881, at para. 18, aff’d 2012 ONCA 796; see also Kuo v. Kuo, 2017 BCCA 245, at para. 38.

[20] Where a settlement has been agreed to, the implied obligation to furnish a release is to provide one that does not go beyond the terms to which the parties have agreed: Hodaie, at para. 19. The releases proffered by the respondents each introduced terms beyond what would be strictly necessary to end the claims in the action on a without costs basis, which was the essence of the settlement. The hospitals’ proposed release included an acknowledgment or waiver of independent legal advice and an undertaking to keep the terms of the settlement confidential. The physicians’ proposed release also included a term of confidentiality and extended not only to the claims in the action, but to all claims up to the time of the release.

[21] Nevertheless, the proffering of overly broad releases does not negate the existence of a settlement, where there is no evidence that the settlement agreement was conditional on the respondents obtaining a release with those and only those proposed provisions: Hodaie, at para. 18. Nor does a party proffering an overly broad release repudiate an existing settlement unless, after discussion, the party refuses to proceed without it being signed: Kuo, at para. 41.

[22] In this case, the motion judge concluded that the overly broad releases were not part of the parties’ settlement. The agreement on the essential terms—dismissal of the action without costs—remained binding.

[23] As for the appellants’ argument that no contract was made because Elena Huma lacked authority from the other appellants, we interpret the motion judge’s reasons to mean that he rejected the evidence of Ms. Huma that she sent the May 18 Email without such authority. He stated:

Finally, the plaintiffs argued that it would be contrary to the interests of justice to enforce the settlement agreement. loan Huma is the injured party, having lost most of the functioning in his legs, and based on Elena Huma's evidence, never agreed to the settlement, nor was consulted. This claim conflicts with the email of May 18, 2018, which is signed by all three plaintiffs, stating “We are sending this email to you to inform you that we decided to dismiss this action.” (Emphasis added.)

Without evidence from loan Huma himself, and without other evidence in the record corroborating that Elena Huma had no authority to speak for the other plaintiffs, I am not prepared to find that the settlement should not be enforced as unjust.

[24] Although located in the portion of his reasons dealing with whether he would exercise his discretion not to enforce the settlement, the motion judge’s rejection of the evidence that Elena Huma sent the May 18 Email without authority is nonetheless dispositive on the issue of whether the settlement was made without authority. In light of the form of the May 18 Email—ostensibly sent on behalf of all the appellants—and the absence of any evidence from the other appellants that they had not authorized that email, there was a basis in the evidence for the motion judge’s finding, and it is entitled to deference on appeal.

[25] The court has an undoubted discretion to refuse to enforce a settlement that is unconscionable. Here the motion judge recognized the discretion, cited the correct test, concluded on the evidence that the settlement was not unconscionable and refused to exercise the discretion. He found that the settlement could not be said to be grossly unfair or improvident, given the absence of evidence of the likelihood that the appellants’ action might succeed. Although the appellants were self-represented, he found that Elena Huma was sophisticated and there was no evidence the appellants had been pressured into agreeing to settle. He rejected the evidence that the settlement had been agreed to without the authority of all the appellants.

[26] The motion judge’s exercise of discretion and the fact-finding that underlay it are entitled to deference on appeal. We see no error in the motion judge’s approach to this issue that would justify appellate intervention.

CONCLUSION

[27] The appeal is dismissed.

[28] If the respondents seek costs of the appeal, they may file written submissions, not exceeding two pages each, within ten days of the release of these reasons. The appellants may respond, by written submissions not exceeding four pages, within ten days of receipt of the respondents’ submissions. There shall be no reply submissions.

“Paul Rouleau J.A.”

“B.W. Miller J.A.”

“B. Zarnett J.A.”