ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 55123
DATE: 2012-01-16

RE: Maryann Khouri, Plaintiff/Responding Party.

and:

The London Transit Commission et al, Defendants/Moving Parties.

BEFORE: McDermid, J.

COUNSEL:
T. Pollit, for the Moving Parties.
Maryann Khouri, in person.

HEARD: January 10, 2012

ENDORSEMENT

[ 1 ] The moving parties seek an order to enforce a settlement they allege was entered into to dismiss the plaintiff’s claims without costs. The plaintiff resists and takes the position that she never settled her claim on any basis.

[ 2 ] At Tab D of the defendants’ motion record is a copy of an email dated October 11, 2011 from former counsel for the plaintiff to counsel for the defendants stating, “I have instructions to accept your most recent offer to settle.”

[ 3 ] The offer of the defendants was to consent to a dismissal of the plaintiff’s action without costs.

[ 4 ] At Tab E of the record is a copy of an email dated October 12, 2011 from former counsel for the plaintiff to defence counsel stating, “Following a telephone discussion with my client, I can advise that she is refusing to sign a release.”

[ 5 ] On October 14, 2011, defence counsel sent a letter to the former counsel for the plaintiff confirming the email at Tab E and their subsequent telephone conversation and the fact that former plaintiff's counsel had advised defence counsel that he was acting on the instructions of the plaintiff when he accepted the offer to consent to a dismissal of the action without costs. Defence counsel enclosed a release for execution by the plaintiff together with a Notice of Motion, Consent and draft order dismissing the action without costs. He advised plaintiff's counsel that if the release and consent were not signed by the plaintiff and returned with the draft order approved, he would proceed with a motion to enforce the settlement and seek costs on a substantial indemnity basis.

[ 6 ] The documents were not signed and the defendants brought this motion.

[ 7 ] It is settled law that a party will be bound by a settlement entered into by her solicitor unless some limitation on the solicitor’s authority to negotiate a settlement has been communicated to the opposite party. [^1] That was not the case here. Rather, plaintiff's counsel indicated that he had received instructions to accept the defendants’ offer.

[ 8 ] It is also clear that counsel is entitled to rely upon the ostensible authority of opposing counsel to conclude litigation by the final compromise of an action. [^2] In this case, plaintiff's counsel indicated that he had actual authority and instructions to settle the action.

[ 9 ] If there is a dispute between the plaintiff and her counsel, who has been removed from the record, that is a matter between them and not a matter for me to consider on this motion. [^3]

[ 10 ] Accordingly, an order shall go for the relief sought by the defendants and therefore, I order the plaintiff’s action dismissed without costs.

[ 11 ] I fix the costs of this motion in the sum of $627 including disbursements of $127.00.

“ Justice D. R. McDermid”

Mr. Justice D. R. McDermid

Date: January 16 , 2012

[^1]: Scherer v. Paletta , 1966 286 (ON CA) , [1966] O.J. No. 1017 (C.A.) at paras. 10 - 11 .

[^2]: Browne v. McNeilly , [1999] O.J. No. 1919 (C.A.) at paras. 16 – 17 .

[^3]: Co-operators v. Tagaoussi , [2000] O.J. No. 5059 (S.C.J.) at para. 16 , aff’d [2002] O.J. No. 403 (C.A.)