BARRIE COURT FILE NO.: 11-0391

DATE: 20120518
CORRIGENDA: 20120530

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Paul Elgar and Andrea Elgar, Plaintiffs

AND:

Sarah Jean Koetsier, Peter John Koetsier, Robert Vandervelde, Darlene Vandervelde and 1427992 Ontario Ltd. o/a Woods Landing, Moving Parties/Defendants

BEFORE: THE HON. MADAM JUSTICE S.E. HEALEY

COUNSEL: W.R. Kerr, Counsel for the Plaintiff

G. Karayannides, Counsel for the Moving Parties/Defendants Vandervelde and 1427992 Ontario Ltd. o/a Woods Landing

HEARD: April 24, 2012

REVISED ENDORSEMENT ON MOTION

The text of the original decision has been corrected with text of corrigendum (released May 30, 2012) appended.

NATURE OF THE MOTION

[ 1 ] The Defendants, 1427992 Ontario Ltd. ("Woods Landing") and Robert and Darlene Vandervelde (the "Vanderveldes") bring the within motion under Rule 49.09 of the Rules of Civil Procedure for judgment in the terms of an alleged settlement reached between Woods Landing and the Vanderveldes and the plaintiffs (the "Elgars”).

FACTS

[ 2 ] The Elgars access their property via a right-of-way through land owned by Woods Landing and the Vanderveldes. Disputes between the parties associated with the right-of-way gave rise to this proceeding. The dispute has been ongoing for seven years, with counsel involved for the last four years. The Elgars served a Notice of Intention to Act in Person in July 2011 and thereafter engaged in settlement discussions with these defendants through their counsel.

[ 3 ] The Statement of Claim seeks declaratory relief with respect to the existence and validity of a right-of-way, specific performance of contractual terms, injunctive relief in relation to access via the right-of-way, and general, special, punitive and aggravated damages in the combined amount of $650,000.

[ 4 ] On October 6, 2011 Woods Landing/the Vanderveldes made an offer of settlement (“the offer”) to the Elgars by way of correspondence from their lawyer, Mr. Diskin. It is the position of these defendants that the offer dealt with each of the disputed issues and set out two options for resolving the right-of-way dispute, asking that the Elgars select one of the options as part of the settlement. The primary difference between the options was that option 1 involved opening up the existing right-of-way within its boundaries, while option 2 involved opening a new location for the right-of-way. The offer covered the following areas: costs incurred by these defendants, the two options with respect to the right-of-way, apology and releases. The offer contained the following text below Mr. Diskin’s signature:

I agree to Option _______ above, and accept the other terms of settlement proposed in this correspondence, including the attached form of apology.

Paul Elgar

Andrea Elgar

[ 5 ] The offer indicated that it remained open for seven days, and that it was conditional upon reaching an agreement with the Koetsiers that was satisfactory to the Vanderveldes, the Koetsiers being the original vendors of the lands now owned by both the Vanderveldes and the Elgars.

[ 6 ] On October 12, 2011 the Elgars delivered e-mail correspondence to Mr. Diskin at 6:54 a.m. acknowledging receipt of the offer and requesting clarification on multiple points arising from the offer that would impact on effecting the settlement, such as the route for the relocated portion of the driveway, as well as expressing concern over the requested apology. The e-mail noted that they had not had proper opportunity to discuss the offer due to their granddaughter’s hospitalization, and asked for clarification and then sufficient time to properly consider the options presented.

[ 7 ] The following day at 10:56 p.m. the Elgars sent an e-mail to Mr. Diskin stating that they had no knowledge of the plans referred to in option 2 and that they would therefore like to proceed with the route indicated by option 1. The e-mail stated: "As such, we have selected option 1 for settlement with your client". The e-mail also indicated that they would fax back a copy of Mr. Diskin's letter by fax in the morning.

[ 8 ] Pages 2 and 3 of the letter were in fact faxed to Mr. Diskin's office on October 14, 2011, which included the signature page bearing the signatures of both of the Elgars, bearing the date of October 13, 2011 and inserting a numeral 1 in the option clause replicated above. There was no additional writing inserted on either of the pages, nor a covering letter, to indicate that the Elgars were reserving any of their rights or that their acceptance was conditional.

[ 9 ] It is at this point that the perspectives of the litigants diverge. The Elgars assert that by delivering the fax they simply wished to communicate their preference to structure the settlement in the format of option 1. They did not intend that it would be interpreted as an acceptance of the offer, as they believed that their e-mail of October 12 was still in play and that they had given no indication to Mr. Diskin that they were abandoning those issues raised in that e-mail.

[ 10 ] The Vanderveldes, on the other hand, believed that they had a deal based on an accepted offer.

[ 11 ] On November 2, 2011 Mr. Diskin delivered correspondence to the Elgars addressing the concerns raised by them in their October 12 e-mail.

[ 12 ] Having had no response from the Elgars to that communication, Mr. Diskin again wrote on November 14 requesting that the Elgars confirm is that they had financing in place, which presumably was required both for payment of the costs and for the cost of opening the right-of-way, which the offer indicated was to be payable up front to Heenan Blaikie’s trust account, to be released upon completion of the work. This correspondence also requested that a signed copy of the apology letter, which had been attached as a schedule to the offer, be returned to Mr. Diskin.

[ 13 ] Again Mr. Diskin received silence from the Elgars, and several months past. On January 16, 2012 Mr. Diskin again wrote to the Elgars indicating that it would be necessary for him to bring a motion to enforce the settlement agreement given that they had not advanced the settlement funds, signed the apology letter or taken any steps in furtherance of the negotiated agreement, or even acknowledged his correspondence.

[ 14 ] Following, the Elgars retained new counsel, Mr. Kerr, who delivered correspondence to Mr. Diskin on March 8, 2012. That letter indicated that the Elgars had raised their concerns about the contents of the settlement and had requested clarification via their October 12 e-mail. It continued: "Therefore when they sent the signed acknowledgment to you on October 14, 2011 it was without a clear understanding as to the significance of what they were agreeing to". The letter went on to indicate that Mr. Diskin's subsequent correspondence of November 2, 2011 did not satisfy the Elgars concerns and that they then began seeking legal assistance, giving rise to Mr. Kerr’s retainer. The letter purported to re-open negotiations, although the Vanderveldes' counsel characterizes its content as an attempt to obtain certainty around essential terms.

[ 15 ] Mr. Diskin responded by correspondence stating that the Vanderveldes’ position was that a firm and binding settlement has been reached. This letter also notified the Elgars that the Vanderveldes were waving the condition of the agreement related to the Koetsiers, which had been inserted for their benefit. The Vanderveldes have subsequently waived the requirement of the signed apology, also inserted for their benefit.

[ 16 ] The Elgars dispute that the essential terms of a settlement were reached, relying on their e-mail of October 12 and Mr. Diskin's subsequent reply to their concerns on November 2. They argue that an agreement was not reached on essential terms, namely the position of the road and the user fees.

DECISION

[ 17 ] There is a binding agreement.

ANALYSIS

[ 18 ] The position of the Elgars is difficult to reconcile. They are essentially arguing that their October 12 e-mail should be read together with their acceptance of the offer to constitute either a counter-offer or a clear rejection of the offer itself.

[ 19 ] This position would ask the court to accept that the Mr. Elgar, writing on behalf of his wife and with an apparent ability to write at a competent, even skilled, level, ignored the clear wording on the face of the offer that said “…and accept the other terms of the settlement proposed in this correspondence, including the attached form of apology”. If another intention was meant, the Elgars could have stroked out those words. More significantly, if the Elgars needed more time to consider their position, they could have requested an extension of the 7 day time limit. This litigation has been ongoing for years; if they were seriously considering an offer Mr. Diskin would undoubtedly have urged his client to grant an extension of the time for acceptance. But they did not seek an extension; they considered the matter for a further 16 hours, almost to the minute, and prior to the expiry of the 7 th day they indicated, by their e-mail of October 13 th , that they were prepared to accept the offer. There is no indication in that e-mail that their acceptance remained conditional upon receiving an answer to the inquiries set out in the e-mail sent the previous day.

[ 20 ] Further, even if the October 13 e-mail was somehow intended to build upon the October 12 e-mail, I interpret that that earlier correspondence simply constituted an inquiry, as opposed to a counter-offer. In that correspondence there is a pre-amble to the 8 listed points which states that the Elgars had “a few questions requiring clarification”. And although those 8 points raise questions about effecting the terms of the offer, they do not provide alternative terms to the essential elements of the offer. And although the Elgars state that no agreement was reached on user fees, there was no specific alternative set out in their October 12 e-mail to counter the term of the offer which stated: "This relocated right of way would be subject to a yearly fee equivalent to the parking fee paid by those who rent parking spots at the Woods Landing Marina (for 2011, this was $900 + HST)”.

[ 21 ] Further, although the Elgars also state that there was no agreement reached on the location of the road, paragraphs points 4, 5 and 6 of the October 12 e-mail only seek clarification on the relocated portions of the driveway. Otherwise, the offer is clear that option 1 involves opening up the existing right-of-way within its boundaries. Option 1 also stated: "Should you wish, this agreement could be structured so as to permit you to straighten out the end of the driveway where it meets your property to improve the approach to the hill, however, you would bear all associated costs". The Elgars October 12 e-mail indicates their understanding that they would be bearing the cost of this work, subject to further clarification from the Elgars regarding the relocated portion of the driveway.

[ 22 ] As set out by the Court of Appeal in Singh v. Chung , [1995] B.C.J. No. 1307 (B.C.C.A.) at para. 25 , there is a distinction between a counter-offer and an inquiry, and they are to be treated differently at law:

[25] But not every inquiry or request for information is to be construed as a counter-offer; it may be a mere inquiry. In Chitty, supra, the learned authors continue, in para. 2-064:

Inquiries and requests for information. A communication from the offeree may be construed as a counter-offer (and hence a rejection) even though it takes the form of a question as to the offeror's willingness to vary the terms of the offer. But such a communication is not necessarily a counter-offer: it may be a mere inquiry or request for information made without any intention of rejecting the terms of the offer. Whether communication is a counter-offer or a request for information depends on the intention, objectively ascertained, with which it was made. In Stevenson, Jacques & Co. v. McLean [ (1880), 5 Q.B.D. 346 ] an offer was made to sell iron to the plaintiffs who asked by telegram whether they might take delivery over a period of four months. It was held that this telegram was not a counter-offer but only a request for information as it was "meant… only as an inquiry" and as the offeror "ought to have regarded it" in that sense. Similarly, if an offer is made for the sale of the house at a specified price, an inquiry whether the intending vendor is prepared to reduce the price will not amount to a rejection of the offer if the inquiry is "merely exploratory".

[ 23 ] Considering the October 12 e-mail overall, there is nothing in it that could be construed, objectively, as a counter-offer and it is obvious on its wording alone that the Elgars were seeking information only. When Mr. Diskin provided that information following their unequivocal acceptance of his clients’ offer, he did so as a courtesy only and obviously in an attempt to ensure that no issues lurked to sabotage the settlement.

[ 24 ] Accordingly pursuant to Rule 49.09, judgment should issue in the terms of the offer. There is nothing in this fact situation that would persuade me to exercise the power contained in Rule 49.09(b), particularly given how long this dispute has existed.

ORDER

[ 25 ] The defendants Woods Landing and the Vanderveldes shall have judgment in accordance with the settlement.

COSTS

[ 26 ] If the parties are unable to agree upon the costs of this motion, they may make brief written submissions through the office of the judicial assistants in Barrie on a timetable agreed between counsel, but all submissions to be delivered by no later than Friday, June 22, 2012.

HEALEY J.

Released: May 30 , 2012

C O R R I G E N D A

1. Page 5, para. 25 now reads: The defendants Woods Landing and the Vanderveldes shall have judgment in accordance with the settlement.