SUPERIOR COURT OF JUSTICE – ONTARIO
COURT FILE NO.: CV-09-2934 SR
DATE: 20120315
RE: Duane Napier v. Maurizio Vani
BEFORE: Fragomeni J.
COUNSEL: Jason Bogle, for the Plaintiff
Tim Gleason and Adam Pantel, for the defendant
E N D O R S E M E N T
[ 1 ] The defendant, Maurizio Vani (Vani) moves for the following relief:
An order dismissing this action on a without cost basis in accordance with the settlement reached between the plaintiff and the defendant on September 26, 2011 whereby the plaintiff made an offer to settle the action on the basis of a dismissal of the action on a without cost basis and the defendant accepted that offer to settle.
[ 2 ] The defendant’s position is that the plaintiff provided unequivocal instructions to his lawyer to offer to settle the action by way of a dismissal of the action on a without cost basis. That offer to settle was accepted by the defendant and the plaintiff then failed to comply with the terms of the settlement by failing to execute a consent to the order dismissing the action on a without cost basis.
[ 3 ] The plaintiff’s position is that the parties did not have a settlement. The plaintiff submits further that even if the court finds that there was a settlement, the court should exercise its discretion and not enforce the settlement.
Overview of the Facts
[ 4 ] This is a solicitor’s negligence action commenced by way of statement of claim. The following correspondence is relevant and material to the discussion that follows this factual review:
April 20, 2011 - Letter from counsel for the defendant to counsel for the plaintiff. The letter states, in part:
While I have no instructions from my client right now, I suspect that my clients will be agreeable to a dismissal of this action on a without costs basis at this stage. Once you have had a chance to review the matter with your client and obtain instructions, why don’t you call me and let me know where your client stands and what he wishes to do.
Ms. Vanassa Richards-Thompson acted for the plaintiff at this time and Mr. Adam Pantel was counsel for the defendant.
September 23, 2011 – Letter from Pantel to Richards-Thompson
September 23, 2011
By Facsimile
CMAA PROFESSIONAL CORPORATION
Barristers, Solicitors, Notaries
300 – 4316 Village Centre Court
Mississauga, Ontario L4Z 1S2
Attention: Vanassa Richards-Thompson
Dear Ms. Richards-Thompson:
Re: VANI, Maurizio ats NAPIER, Duane
Further to the telephone call from your office this week indicating that you would have instructions from your client by Wednesday of this week, I have heard nothing from you. Would you please advise as to what your client’s instructions are with respect to this action.
Yours very truly,
Adam Pantel
On September 26, 2011 , Pantel had a telephone call with Richards-Thompson. Tab D of the Motion Record contains Pantel’s handwritten notes of that conversation. The notes set out the following:
Lawpro Vani
t/c w/other counsel
finally has instructions after hours on the phone w/client
offer to agree to dismissal if lawpro goes without costs
told her I’d recommend that + will get back to her
spoke to mitch Goldberg (nadia on leave)
spent = 22k legals
lawpro agrees to dismissal w/out costs
standard lawpro release
The confirmation letter relating to the September 26, 2011 communication is dated September 29, 2011 which states:
September 29, 2011
By Facsmile
CMAA PROFESSIONAL CORPORATION
Barristers, Solicitors, Notaries
300 – 4316 Village Centre Court
Mississauga, Ontario L4Z 1S2
Attention: Vanassa Richards-Thompson
Dear Ms. Richards-Thompson:
Re: VANI, Maurizio ats NAPIER, Duane
Further to our multiple telephone calls on September 26, 2011, I confirm that your client offered to dismiss its action as against my client on a without cost basis and that LawPRO has provided me with instructions to agree to a settlement of this action on those terms.
I explained to you that in exchange for the without cost dismissal, your client would have to execute a standard form LawPRO release. I attach a copy of same to be executed by your client and returned to me. Would you please ensure that you execute the Certificate of Solicitor on the final page of that release.
Also attached is a consent and draft order to an order dismissing the action on a without cost and with prejudice basis. As I indicated to you I will take steps to have the order issued. Would you please either execute the consent and return it to me or more simply, authorize me to execute the consent on your behalf so that I can have original signatures on the consent and ensure no difficulty in having the order issued. I look forward to receiving back both the release and your authority to execute the consent on your behalf so that we may take steps to finalize this matter once and for all.
Yours very truly,
Adam Pantel
Enclosure
On October 10, 2011 the plaintiff served Pantel with a Notice of Change of Lawyer. The plaintiff refused to sign the consent and approve the draft order.
Analysis and Conclusion:
Was a Settlement Reached?
[ 5 ] A settlement agreed upon by a lawyer binds his or her client, unless the lawyer has limited authority and the opposing party knows of this limitation (See Scherer v. Paletta , 1966 286 (ON CA) , [1966] 2 O.R, 524 (Ont. C.A.). In Amirvar v. Murlee Holdings Ltd. , [2011] O.J. No. 4330 Justice M.F. Brown stated at para. 10:
A lawyer's authority to compromise in negotiations may be implied from his or her retainer unless a limitation of that authority is communicated to the opposite party. No such limitation was ever made known to the defendant. See Scherer v. Paletta , 1966 286 (ON CA) , [1966] O.J. No. 1017 (Ont. C.A.) .
[ 6 ] In the case at bar, the evidentiary record before me indicates that no limitation of Richards-Thompson’s authority to negotiate a settlement existed and even if it did exist it was never communicated to Pantel. The Plaintiff did not file an Affidavit for this motion.
[ 7 ] As Justice Brown notes further at para. 12:
There is a two part test to determine whether a binding settlement agreement exists. First, there must have been a mutual intention to create a legally binding contract; and second, the parties must have reached agreement on all of the essential terms of the settlement. See Olivieri v. Sherman (2007), 2007 ONCA 491 () , 86 O.R. (3d) 778 (Ont. C.A.) at para. 41 .
[ 8 ] At para. 15 and 19 Justice Brown states:
The Courts have acknowledged that the terms of a contract are often expressed orally before being drafted into a formal written document but the formal written document, itself, does not alter the binding validity of the original oral contract. There is no merit in the argument that a settlement cannot be reached until the execution of a written release or if a plaintiff has objections to a release. See Kaur v. The Manufacturers Life Insurance Company , [1999] O.J. No. 3564 (Ont. C.A.) at para. 3 .
As well, the documentation of taking out the dismissal order and executing the full and final release were not terms of the contract, but simply the formal documentation of settlement. The terms of the release are not the terms of settlement, and any issue the plaintiff may have with the wording of the release is not a valid reason to suggest that the parties had not reached agreement on all the essential terms. See Bawitko Ltd. v. Kernels Popcorn Ltd., 1991 2734 (ON CA) , [1991] O.J. No. 495 (Ont. C.A.) .
[ 9 ] The terms of the settlement between Napier and Vani were quite simple and straightforward as set out in the September 29, 2011 letter from Pantel to Richards-Thompson, namely that the claim would be dismissed against the defendant on a without costs basis. The September 29, 2011 letter sets this out. The notes made by Pantel relating to his telephone attendance with counsel are clear. The Plaintiff, Napier, did not provide an Affidavit sworn by him, that these were not the instructions provided to his lawyer. On the record it is clear his lawyer had those instructions, made the offer and the offer was accepted.
[ 10 ] I am satisfied that a settlement was reached between the parties.
Should the Settlement be Enforced?
[ 11 ] In support of his position, at this motion, the Plaintiff filed one Affidavit in the name of Kristina MacDonald sworn March 12, 2012. Ms. MacDonald is a Licensed Paralegal employed by the Plaintiff’s present counsel, Mr. Jason Bogle.
[ 12 ] The Plaintiff argues that the settlement should not be enforced because the claim has merit. The plaintiff has not filed any information to substantiate that position. As I indicated Napier did not swear an Affidavit providing any information to the Court.
[ 13 ] The plaintiff has not placed any information before the Court to demonstrate why the court should not enforce the settlement.
[ 14 ] Rule 49.09(a) and (b) of the Rules of Civil Procedure states:
49.09 Where a party to an accepted offer to settle fails to comply with the terms of the offer, the other party may,
(a) make a motion to a judge for judgment in the terms of the accepted offer, and the judge may grant judgment accordingly; or
(b) continue the proceeding as if there had been no accepted offer to settle. R.R.O. 1990, Reg. 194, r. 49.09 .
[ 15 ] In this case the terms of settlement were simple and clear. Counsel for the Plaintiff had no limitations on her retainer and her authority to bind the Plaintiff. There is nothing in the evidentiary record before me that demonstrates in any way that the Court should exercise its discretion to not enforce the settlement.
[ 16 ] Order to issue as follows:
That the Plaintiff’s action as against the defendant is dismissed on a without cost basis in accordance with the settlement reached between the plaintiff and the defendant;
The parties shall file written submissions on costs within 10 days.
Fragomeni J.
DATE: March 15, 2012
COURT FILE NO.: CV-09-2934 SR
DATE: 20120315
SUPERIOR COURT OF JUSTICE – ONTARIO RE: Duane Napier v. Maurizio Vani BEFORE: Fragomeni J. COUNSEL: Jason Bogle, for the Plaintiff Tim Gleason and Adam Pantel, for the defendant ENDORSEMENT Fragomeni J.
DATE: March 15, 2012