Court File and Parties

Court of Appeal for Ontario Date: 2024-07-23 Docket: C70773

Judges: Miller, Harvison Young and Gomery JJ.A.

Between:

Brandon Book, Phillip Book and Marcia Book Plaintiffs (Appellants)

And:

Augustin Cociardi Defendant (Respondent)

And:

Rebecca Wissenz Intervenor (Intervenor)

Counsel: David E. Preszler and Aron Zaltz, for the appellants Kenneth J. Raddatz and Emily M. Hill, for the respondent, Augustin Cociardi Jillian Van Allen, for the intervenor, Rebecca Wissenz

Heard: July 16, 2024

On appeal from the order of Justice James A. Ramsay of the Superior Court of Justice, dated May 26, 2022.

Reasons for Decision

[1] After hearing this appeal and motion to adduce fresh evidence, we dismissed both with reasons to follow. These are our reasons.

[2] The appellants, Brandon Book and his parents, settled their personal injury action against the respondent, Augustin Cociardi, in 2015. The respondent paid roughly $231,000. Brandon received $150,000 net of fees and costs, and the action was dismissed on consent.

[3] In 2019, the appellants moved to set aside the dismissal under r. 7.08(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. They contended that Brandon was a person under disability when the settlement was reached and that it was unconscionable and improvident. A trial was directed on the motion.

[4] Following a six-day hearing, the trial judge dismissed the motion. He held that the appellants had not proved that Brandon was under a disability at the time of settlement. Even if he had found otherwise, the trial judge would not have set aside the dismissal and settlement based on the principles in Mohammed v. York Fire and Casualty Insurance Co. (2006), 79 O.R. (2d) 354 (C.A.). The trial judge noted that the appellants were represented by counsel when the settlement was reached; they were not prepared to return the settlement funds they had received; the respondent settled the matter in good faith without any suspicion that Brandon lacked capacity; the settlement was neither unfair nor unreasonable; and the appellants waited four years before bringing their motion. He concluded that, “[w]hether Brandon was under disability or not, the justice of the case does not call for deviation from the principle that a final judgment, unless appealed, marks the end of the line”.

[5] The appellants argue that the trial judge misapprehended the test for incapacity to enter minutes of settlement; that he erred in finding that Brandon had the capacity to enter into binding minutes of settlement; and that, in the circumstances, he should have set aside the minutes of settlement and dismissal order.

[6] The trial judge did not make any legal error nor misapprehend the evidence. He gave cogent reasons for preferring the respondent’s expert evidence over the evidence of the appellants’ expert. He accepted the evidence of Rebecca Wissenz, the appellants’ lawyer in the action, that she had no reason to doubt Brandon’s capacity when she received instructions from him on the settlement. He found that Brandon’s father, Phillip Book, was an evasive witness and that his testimony on central issues was implausible or inconsistent with reliable evidence.

[7] The appellants effectively argue that, in any personal injury action alleging a permanent cognitive injury, the plaintiff should undergo assessments of their capacity to manage property and personal care before signing minutes of settlement. Their argument implies that, if such assessments are not conducted prior to settlement, a consent dismissal based on that settlement would be open to challenge for years after the fact. This is not the law, nor should it be. The appellants’ proposed regime would discourage settlement and needlessly make it more costly.

[8] Even if we had found that the trial judge erred in finding that Brandon had capacity to enter the 2015 settlement – and we do not – the appeal would fail, because the trial judge concluded that the settlement and dismissal order should not be set aside in any event. This court will not interfere in a trial judge’s mixed finding of fact and law absent a palpable and overriding error in their reasons: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 36-37; 1632093 Ontario Inc. (Turn-Key Projects) v. York Condominium Corporation No. 74, 2020 ONCA 843, at para. 1. No such error has been identified in the trial judge’s analysis.

[9] The appellants moved to adduce fresh evidence on the appeal. This evidence consists of undated notes apparently made by Phillip Book, found amongst his belongings after he passed away in April 2023. The notes constitute inadmissible hearsay. They would only have any arguable evidentiary value if they had been created contemporaneously to the settlement, in which case they should have been produced at the trial. Finally, we are not persuaded that this evidence would have had any impact on the trial judge’s conclusions, given his assessment of Phillip’s credibility and his acceptance of Ms. Wissenz’s evidence.

[10] The motion and the appeal are accordingly dismissed. The respondent is awarded partial indemnity costs on the appeal and the motion of $15,000 all inclusive. The intervenor is awarded $2,000 in costs all-inclusive on the motion.

“B.W. Miller J.A.” “A. Harvison Young J.A.” “S. Gomery J.A.”