Citation and Court Information
CITATION: Smith v. Fire Team K-9’s Inc, 2025 ONSC 923
DIVISIONAL COURT FILE NO.: 2916-24
DATE: 20250213
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
RSJ Edwards, O’Brien, and L. Bale, JJ
BETWEEN:
Anne Smith and James Smith Appellants
– and –
Fire Team K-9’s Inc. Respondent
Counsel: K. Magassouba, Counsel for the Appellants H. Gastle, Counsel for the Respondent
HEARD by video conference in Ottawa: on February 7, 2025
REASONS FOR DECISION
L. BALE J.
[1] Following the Appellants’ argument, the court determined it was unnecessary to call upon the Respondent, and the appeal was dismissed with reasons to follow. These are those reasons.
Overview
[2] At the heart of this appeal is a trained service dog named “Briggs”, and the Respondent’s motion to enforce a settlement agreement reached in September 2023 relating to his ownership. The motion judge, Abrams J., granted the motion and ordered that the settlement should be enforced. The Appellants submit the motion judge erred. They say a settlement was never reached because it was an essential term of the settlement that the Respondent provide original ownership documentation regarding Briggs, which they have failed to do. They also say the settlement should not be enforced because the Appellants entered into it under duress.
Background
[3] The Appellants started litigation regarding the ownership of Briggs in 2022 under the Simplified Procedure provided in Rule 76 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.
[4] On September 18, 2023, a pre-trial conference was held before Hooper J. In her endorsement, reproduced below, Hooper J. wrote that the parties had resolved the matter:
ENDORSEMENT:
A pretrial was held today with the parties resolving this matter on the following basis:
a) Ownership of the dog, Briggs, will be transferred to the defendants with all documentation relating to his ownership provided by the Plaintiff [emphasis added].
b) The defendants will pay to the plaintiff the sum of $24,250 in damages, costs, disbursements and HST. A first payment of $2,000 will be paid immediately. The remaining $22,250 will be paid within 90 days.
c) The defendants will return the plaintiff’s property to the plaintiff forthwith, including any financial records or other corporate records. The defendants will ensure that no copies will be made of those records.
d) All images of a dog specifically identified as Briggs will be removed from the plaintiff’s website. All images of dogs owned by the plaintiff that were fostered or trained by the defendants will be removed from the defendant’s website.
e) The parties will sign a mutual full and final release relating to all issues arising from Briggs and/or the relationship between them. This release will include, but is not limited to, any potential claims the defendants may have in relation to renumeration alleged to be owed by the plaintiff.
f) The mutual full and final release will include a mutual non-disparagement clause.
g) The plaintiff will file a Notice of Discontinuance upon receipt of the executed mutual full and final release.
h) If the parties require any further clarification with respect to this endorsement or if court assistance is required relating to wording of the settlement agreements, a brief virtual continuation of this pretrial can be scheduled before me through trial coordination.
[5] The italicized portion of paragraph (a) of the endorsement reflects the primary subject matter of this appeal.
[6] It is not contentious that following the September 2023 pre-trial, the Appellants delivered the $2,000.00 deposit, the Respondent relinquished ownership of Briggs (who has remained in the care of the Appellants to date), and the Respondent provided a series of documents relating to Briggs to the Appellants. There was some delay in the accumulation of the balance of the settlement funds by the Appellants. On or around February 12, 2024, the Respondents were notified that the Appellants’ counsel was in possession of the funds. At this time the Appellants raised concern regarding the adequacy of the ownership documentation.
[7] A second pre-trial conference, held before Hooper J. on June 20, 2024, was unsuccessful in resolving the issue of adequacy of documentation.
[8] The Respondent moved to enforce the terms of settlement under Rule 49.09 of the Rules of Civil Procedure. The Appellants brought a cross motion to set the settlement agreement aside.
[9] On August 2, 2024, the motions were first before the court. The transcript reflects that on that date, the motions judge raised concern regarding two areas of the Appellant, Ms. Smith’s, Affidavit:
a) “I specified several times during negotiations, that I needed original documents”; and
b) “I suffer from PTSD and other trauma related mental illness. I was under extreme duress and panic where I was faced with losing my dog, and I agreed partly out of fear for losing Briggs. I was in fact under duress”.
[10] The motions judge opined that there was a gap in the evidence which could only be filled by former counsel. Counsel for the Appellants on the motion then asked for an adjournment to provide the evidence from former counsel. The motions judge proposed that former counsel provide oral evidence and be subject to cross-examination at the return of the motion, and then made a procedural order to this effect. Neither side objected.
[11] The motion returned on August 14, 2024. On that date, counsel for the Appellants confirmed the following:
a) The Appellants were not prepared to waive solicitor-client privilege; and
b) The Appellants were no longer pursuing duress as a basis upon which to set aside the settlement agreement. Specifically, counsel for the Appellants advised “yes – there was stress, but they understood the terms that they were agreeing to…the stress is not such that it would vitiate the agreement”.
[12] Both sides agreed to argue the interpretation issue on the strength of the materials filed, without the necessity of calling the Appellants’ former counsel as a witness. Submissions were focused on the interpretation of paragraph (a) of the endorsement of Hooper J., regarding “all documentation” relating to Briggs’ ownership.
[13] The motions judge made findings that on February 12, 2024, counsel for the Appellants raised “for the first time” that an original Canadian Kennel Club or American Kennel Club registration certificate for Briggs was required, and that they did not make a request at that time for any other documents. The motions judge found that once it was ascertained that a new original registration certificate from the Canadian Kennel Club could be obtained, the Appellant’s position shifted. Ultimately, the motions judge rejected the Appellants’ argument that “documentation” was intended to be “original documentation”, that this was an essential term of the agreement, and that in the absence of production of the “original”, there was no meeting of the minds. The Respondent’s motion to enforce the settlement agreement was granted, and the Appellants’ cross-motion to set aside the settlement agreement was dismissed.
Issues
[14] The Appellant argues that the motions judged erred in:
a) Failing to properly apply the law of contract, in particular with respect to his interpretation of “all documentation” as an essential term of the agreement between the parties;
b) Compelling evidence from the Appellants’ former counsel, thereby (i) requiring the Appellants to either waive solicitor client privilege or abandon their argument regarding duress and (ii) denying the Appellants their choice of counsel; and
c) Failing to exercise discretion to set aside the settlement agreement in the interests of justice.
Law and Analysis
Issue #1: Interpretation of “all documentation”
[15] Consent orders and endorsements are a species of contract, and the analytical approach to their interpretation does not differ from the ordinary principles of contract interpretation: Johnston v. McLean, 2024 ONCA 791 at paras. 14-15. Contract interpretation is generally an issue of mixed fact and law subject to a deferential standard of review unless there is an extricable error of law: Spina v. Shoppers Drug Mart Inc., 2024 ONCA 642 at para. 53.
[16] The Appellant does not convincingly draw this court’s attention to the application of an incorrect principle or a failure to consider a required element of a legal test. The motions judge was not obligated to discuss every piece of evidence raised by the parties when explaining his reasons. There is no identifiable extricable error of law. Accordingly, in the absence of a palpable and overriding error, the motion judge’s findings and conclusion are entitled to deference.
[17] The motions judge rejected the Appellant’s argument that the provision of “original” documents was an essential term of the Agreement. There was ample evidence to support this interpretation of the Agreement. Within his reasons the motions judge noted that there was no record of previous requests for original documentation, the Appellants did not move to ‘correct’ the wording of the agreement upon release of the endorsement, and they waited five further months before raising the issue post-settlement. The motions judge further considered that there was no evident prejudice in the receipt of copies of the documentation, and there was no benefit to the Respondents in retaining the originals if they were in their possession and control.
[18] I do not accept that the motions judge erred in interpreting the wording of the agreement and/or in assessing the intentions of the parties. The Appellants made a tactical decision not to call their former counsel to provide evidence as to the circumstances surrounding the formation of the agreement, and in particular the expectations relating to the scope and originality of ownership documents. It was open to the motions judge, on the evidence before him, to conclude that the Appellants did not raise the issue of original documents until February 12, 2024 and to reject the assertion of the Appellants that there was no meeting of the minds.
[19] There is no overriding and palpable error. The Appellants simply ask this court to reconsider the evidence of the parties and come to the opposite result. That is not the function of this court.
Issue #2: Procedural fairness and evidence from former counsel
[20] The Appellants submit the motions judge breached procedural fairness by requiring their former counsel to testify. They say this deprived them of their choice of counsel. They also submit it forced them to abandon their argument that the Agreement was entered into under duress because they did not want to waive solicitor client privilege. I reject both of these arguments.
[21] The standard of review for allegations of breach of procedural fairness is correctness: Mission Institution v. Khela, 2014 SCC 24, [2014] 1 S.C.R. 502, at para. 74.
[22] First, with respect to choice of counsel, it is clear from the record that the Appellants had already retained new counsel to argue the motions when the motions first came before the court on August 2, 2024. There is no factual basis for an assertion that the Appellants’ right to counsel of choice was impacted by the motion judge’s identification of gaps in their evidence on that day.
[23] Second, a careful review of the transcript confirms that the Appellants opted not to pursue the issue of duress as a basis for setting aside the agreement and decided to advance their interpretation of the wording of the agreement in the absence of evidence from their former counsel. Although at the return of the motion on August 14, Appellants’ counsel stated the Appellants were not waiving solicitor client privilege, he did not say this was why they were abandoning their duress argument. He also did not raise any complaint of unfairness. Instead, when he advised the court that the claim of duress was no longer being pursued, he formally acknowledged that the Appellants “understood the terms that they were agreeing to.” Further, while they were under stress, “the stress [was] not such that it would vitiate the agreement”.
[24] The Appellants made a strategic decision as to how to present their evidence. Having admitted any stress they experienced did not vitiate the Agreement, and having failed to raise any allegation of procedural unfairness before the motion judge, this ground of appeal fails.
Issue #3: Discretion to set aside settlement in the interests of justice
[25] The Appellants argue that the motions judge ought to have set aside the Agreement as an unjust settlement, in the interests of justice, on the basis of combined unconscionability, drafting errors, prejudice to the parties, unequal bargaining power, and the negative impact on the public’s confidence in the administration of justice.
[26] None of these issues were advanced before the motion judge. Indeed, the Appellants expressly withdrew their claim of duress before him. The test for raising new issues on appeal is a stringent one; discretion to hear and decide new issues should not be exercised lightly: Guindon v. Canada, 2015 SCC 41 at para. 22. The claims the Appellants now raise are highly fact-dependent. This is not an appropriate case for the court to consider those issues for the first time on appeal.
Disposition
[27] The appeal is dismissed. In accordance with the agreement of the parties, costs are awarded to the Respondent in the amount of $15,000.00, all-inclusive.
_______________________________ L. Bale, J.
I agree _______________________________
RSJ Edwards, J.
I agree _______________________________
O’Brien, J
Released: February 13, 2025
CITATION: Smith v. Fire Team K-9’s Inc, 2025 ONSC 923
DIVISIONAL COURT FILE NO.: 2916-24
DATE: 20250213
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Anne Smith and James Smith Appellants
- and -
Fire Team K-9’s Inc. Respondent
REASONS FOR DECISION
L. BALE, J.
Released: February 13, 2025