Lewis v. Cook, 2016 ONSC 1995
CITATION: Lewis v. Cook, 2016 ONSC 1995
DIVISIONAL COURT FILE NO.: 851/15 DATE: 20160321
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
SACHS, STEWART AND C. HORKINS JJ.
BETWEEN:
AMANDA LEE JESSICA LEWIS Applicant (Respondent in Appeal)
– and –
DUANE GLEN COOK Respondent (Appellant)
COUNSEL: Kevin Zaldin, for the Applicant (Respondent in Appeal) Paul Gemmink, for the Respondent (Appellant)
HEARD at Toronto: March 21, 2016
ORAL REASONS FOR JUDGMENT
SACHS J. (ORALLY)
[1] This is an appeal from the decision of Wright J. dated February 27, 2015 enforcing a settlement between the parties. The discretion not to enforce a settlement is exercised on a case by case basis, and only rarely and in the presence of compelling circumstances (Yonge Village Recreation Centre Ltd. v. York Condominium Corp. No. 201 (2007), 229 O.A.C. 144, 160 ACWS (3d) 74 (Div. Ct.)).
[2] The appellant submits that the motion judge should not have enforced the settlement for three reasons:
(i) There was an alleged fraud against a third party;
(ii) Contrary to the appellant’s understanding at the time that he signed the settlement, the respondent had not paid $10,214 to her mother so he had his lawyers do so after the settlement was signed (“the $10,214 Issue”); and
(iii) The respondent breached the settlement by leaving the home before June of 2015.
The Alleged Fraud Issue
[3] On this issue the motion judge found that the appellant was aware of all of the facts giving rise to this issue when he signed the Minutes of Settlement. Thus, she did not view this as a basis for exercising her discretion to refuse to enforce the settlement.
[4] In essence, the appellant is arguing that a party who participates in an arrangement with a third party that he or she subsequently chooses to categorize as a fraud is entitled to take the benefit of that alleged fraud in a subsequent proceeding. The appellant could advance no authority for this proposition nor in our view, is it sound. For this reason, we find that the motion judge committed no error in principle when she refused to exercise her discretion not to enforce the settlement on this basis.
The $10,214 Issue
[5] The motion judge was aware of this issue and gave the appellant full credit for the payments that he had made to the respondent subsequent to the settlement, so that the amount of the settlement that was enforced was reduced by these payments, including the $10,214 payment. Given that the respondent conceded that this credit should be given, and it was given in the judgment, we see no basis for the argument that the motion judge erred when she declined to refuse to enforce the settlement on this basis.
The Early Departure Issue
[6] The motion judge found that the settlement did not oblige the respondent to remain in the home until June of 2015. She was entitled to do so if she wished to and, thus, her early departure did not constitute a breach of the Settlement. This finding is based on the clear wording of the Minutes of Settlement which state at para. 5(iii):
The [Respondent] and her children may remain in the Keswick property until June 15, 2015. (emphasis added)
[7] In closing, we wish to note that the appellant conceded that, as outlined above, the motion judge did give reasons for her decision. In our view, these reasons were adequate. They allowed for meaningful appellate review and they allowed the parties to understand why the motion judge did what she did.
[8] For these reasons the appeal is dismissed.
Costs
[9] I have endorsed the Appeal Book, “This appeal is dismissed for reasons given orally by Sachs J. The respondent is entitled to her costs of this appeal, which we fix in the amount of $5,000, all inclusive. In awarding costs we reject the appellant’s submission that it was the fault of the respondent’s counsel that he did not know there were reasons given by the motion judge on the motion. Appellant’s counsel knew that the appellant was self-represented on the motion. There is always a transcript available on motions in which one party is self-represented and counsel should have ordered that transcript if he wished to pursue an appeal on the basis of “no reasons.”
SACHS J.
STEWART J.
C. HORKINS J.
Date of Reasons for Judgment: March 21, 2016 Date of Release: March 24, 2016
CITATION: Lewis v. Cook, 2016 ONSC 1995
DIVISIONAL COURT FILE NO.: 851/15 DATE: 20160321
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
SACHS, STEWART AND C. HORKINS JJ.
BETWEEN:
AMANDA LEE JESSICA LEWIS Applicant (Respondent in Appeal)
– and –
DUANE GLEN COOK Respondent (Appellant)
ORAL REASONS FOR JUDGMENT
SACHS J.
Date of Reasons for Judgment: March 21, 2016 Date of Release: March 24, 2016