CITATION: TD General Insurance Company v. The Estate of Duff-Foley, 2023 ONSC 2400
DIVISIONAL COURT FILE NO.: 22-405 DATE: 20230418
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
Sachs, D.L. Corbett and J.A. Ramsay JJ.
BETWEEN:
TD GENERAL INSURANCE COMPANY
Appellant
– and –
THE ESTATE OF KAYLA DUFF-FOLEY
Respondent
ONTARIO TRIAL LAWYERS ASSOCIATON
Intervenor
COUNSEL:
Eric K. Grossman and Meredith A. Harper, for the Appellant
R. Tally Vanounou and Todd J. McCarthy, for the Respondent
K. Jay Ralston and Robert Ben, for the Intervenor
HEARD at Toronto: April 18, 2023
J.A. RAMSAY J. (Orally)
[1] The Licence Appeal Tribunal found that the appellants TD General Insurance and Kayla Duff-Foley settled tort and accident benefits claims on September 1, 2020, by an exchange of emails that followed a day of comprehensive mediation. The Tribunal upheld its own decision on review. The insurer appeals under ss.11(1) of the Licence Appeal Tribunal Act, 1999, S.O. 1999, c.12. The appeal is limited by ss.11(6) of the Act to a question of law. The standard of review is correctness: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65.
[2] Ms. Duff-Foley entered into mediation with the appellant related to her tort and accident benefit claims arising from two car accidents. On September 1, 2020, the mediator reported the following terms of settlement:
It was a pleasure working with you all today. I am pleased to confirm settlement of the outstanding AB claims, on the following terms:
Claim No. 1 (November 18ᵗʰ, 2015) is resolved for $3,700.00;
Claim No. 2 (May 1ˢᵗ, 2016) is resolved for $957,000;
Both settlements include all benefits, and include all expenses even if approved, incurred, but not billed;
The only exception to paragraph 3 is the next non-earner benefit for $640.00 which will be released on September 3ʳᵈ;
The plaintiff [Ms Duff-Foley] is obligated to structure at least 60% of the settlement amounts. The final structure figure is to be provided by the plaintiff to TD as soon as possible. TD will assign the structure, but there will be no assignment cost to the plaintiff. TD will purchase a reversion of the structure to age 60;
The plaintiff is obligated to release an SDN [settlement disclosure notice] in both claims, with documents to be provided by TD upon being advised of the structure amount.
The representative of the appellant replied:
Hi Mike
I agreed to the below.
I will await confirmation of percentage structure before sending out SDN for May 1, 2016 claim. Once the signed SDN is obtained, I will pass to McKellar to prepare full and final for signature.
Thank you for your effort to resolving the files.
[3] On September 11, 2020, the plaintiff was killed by her mother, who is facing criminal prosecution. On September 14, 2020, counsel for Ms. Duff-Foley advised counsel for TD of the death and confirmed that 60% of the settlement should be structured.
[4] The respondent, the estate of Ms. Duff-Foley, takes the position that it is entitled to the 40% cash payout provided by the settlement. The appellant argues that there was no settlement, and that the Tribunal erred in finding to the contrary for the following reasons:
Before Ms. Duff-Foley died the parties had not agreed on the percentage of the settlement that was to be structured. After she died, her lawyer had no authority to execute the settlement. The Tribunal, in effect, re-wrote the settlement agreement.
Ms. Duff-Foley personally signing a settlement disclosure notice and a release was an essential term of the agreement, as was the expiry of the statutory two-day cooling off period.
The result ignores the common law rule that killers may not inherit from their victims.
[5] The Tribunal set out the correct legal test for determining whether an agreement had been reached. It said, “A binding contract exists where the parties had the mutual intention to create a legally binding contract and the parties agreed on the essential terms of the contract.” See: Olivieri v. Sherman, 2007 ONCA 491, para. 41.
[6] The Tribunal determined the question by an objective reading of the language used by the parties, which was the correct approach: Olivieri, para. 44.
[7] The Tribunal noted that the terms did not say that the settlement was void if Ms. Duff-Foley failed to indicate whether she wanted more than 60% of the settlement to be structured. It simply gave her the option to increase the amount that would be structured. It concluded:
In my view, the parties negotiated a minimum (or perhaps better articulated as a default) of a 60% structure to the settlement. It was open to the applicant [Ms. Duff-Foley] to increase this amount but there is no rational or principled basis to find that her personal failure to do so negates the validity of the settlement agreement.
[8] The conclusion that an agreement had been reached in spite of the provision for an increase in structuring at Ms. Duff-Foley’s option raises at best a mixed question of fact and law, which is not reviewable in this court.
[9] The Tribunal also held that it was not essential to the agreement that Ms. Duff-Foley personally sign the settlement disclosure notice and the release. That ruling was in accord with the dictum of Reid J. in Riggs Estate v. Intact, 2019 ONSC 6846, para. 34. If this conclusion raises a question of law, we see no error. Ms. Duff-Foley’s lawyer had the authority to negotiate the settlement. After she died, Ms. Duff-Foley’s estate administrator could execute the agreement by signing the necessary documents. In fact, this is essentially what happened.
[10] The appellant relies on Gladstone v. Aviva, [2004] O.J. No. 4929 (S.C.J.) in which Glass J. said that without the signed settlement disclosure notice, the two-day cooling off period does not run and there is no settlement. Glass J. was dealing with a case in which the written documents suggested a negotiation, as opposed to a settlement. If the dictum on which the appellant relies means that there is no settlement until the settlement disclosure notice is signed, we do not propose to follow it.
[11] The settlement disclosure notice comes from consumer protection legislation contained in s.9.1 of the Automobile Insurance regulation, R.R.O. 1990, Reg. 664, made under the Insurance Act, R.S.O. 1990 c. I.8. It requires the insurer to provide a notice to the insured containing, among other things, the terms of the settlement. Once the notice is delivered, the insured has two days to rescind the settlement. The right to rescind the agreement does not imply that a settlement was not reached in the first place. On the contrary, on the words of the Regulation, there has to be a settlement in order for it to be rescinded. If it is not rescinded it is enforceable.
[12] Finally, the Tribunal made no error in observing that the application of the common law rule against killers inheriting from their victims was not “any of TD’s business.” The settlement will be paid to the estate. Who inherits from the estate will be determined elsewhere.
[13] The appeal is dismissed.
SACHS J. (Costs)
[14] As the successful party the respondent is entitled to its costs of this appeal which we fix in the amount of $10,000.00 all inclusive.
J.A. Ramsay J.
I agree
Sachs J.
I agree
D. L. Corbett J.
Date of Oral Reasons for Judgment: April 18, 2023
Date of Written Release: April 20, 2023
CITATION: TD General Insurance Company v. The Estate of Duff-Foley, 2023 ONSC 2400
DIVISIONAL COURT FILE NO.: 22-405 DATE: 20230418
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
Sachs, D.L. Corbett and J.A Ramsay JJ.
BETWEEN:
TD GENERAL INSURANCE COMPANY
Appellant
– and –
THE ESTATE OF KAYLA DUFF-FOLEY
Respondent
ONTARIO TRIAL LAWYERS ASSOCIATON
Intervenor
ORAL REASONS FOR JUDGMENT
J.A. RAMSAY J.
Date of Oral Reasons for Judgment: April 18, 2023
Date of Written Release: April 20, 2023