Court File and Parties

COURT FILE NO.: CV-09-00390495
DATE: 20120709
SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Kris Rana, Plaintiff

AND

Canadian Business College, Defendant

BEFORE: Madam Justice Darla A. Wilson

COUNSEL:
Plaintiff appearing in person
Jeffrey J. Nicholson, Counsel for the Defendant

HEARD: July 5, 2012

ENDORSEMENT

[1] The Defendant, Canadian Business College (the College) brings this motion pursuant to Rule 49 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 to enforce a settlement allegedly reached between the parties. At the same time, the Plaintiff brings a motion to restore the action to the trial list. In accordance with the endorsement of Justice Perell of February 27, 2012, I heard the Defendant’s motion first.

Background

[2] The Plaintiff enrolled in the one year law clerk course offered at the Defendant College in September, 2008, which was scheduled to be completed by September, 2009. After the first year of the course, the Plaintiff had many incomplete courses and several failing grades. She was placed on academic probation by the Ministry of Training, Colleges and Universities (the Ministry), from whom she has secured an Ontario Student Assistance Program (OSAP) loan.

[3] According to the affidavit of Mazher Jaffery sworn in support of the Defendant’s motion, the Plaintiff plagiarized another student’s work and refused to acknowledge that she had done so. She withdrew from the law clerk program in July of 2009. She subsequently filed a complaint with the Ministry, which was dismissed.

[4] In November 2009, the Plaintiff issued a Statement of Claim against the College for damages for emotional distress as well as punitive and exemplary damages. The Defendant filed a Statement of Defence and Counterclaim but no documents were exchanged nor were discoveries held.

[5] The Plaintiff was represented for a period of time by William Gray. There was correspondence between Mr. Gray and the Defendant in July 2010 which the Defendant asserts resulted in a settlement of the action. The Plaintiff takes the position there was never a settlement and she wishes to proceed with the litigation.

Positions of the Parties

Defendant

[6] Mr. Nicholson submits that by letter dated July 23, 2010, Mr. Gray made an offer to settle the case on the following terms: that the Plaintiff be given credit for the courses she passed; and that she be permitted to write the exams for the remaining courses, with the Defendant providing the course materials and books.

[7] Mr. Jaffery, on behalf of the Defendant, wrote to Mr. Gray on July 26, 2010 confirming the offer was acceptable and that the College would be in contact to make arrangements for the course materials required. There was further correspondence between Mr. Gray and the Defendant with respect to the course materials and writing the exams.

[8] By letter dated August 31, 2010, Mr. Jaffery wrote to Mr. Gray and made reference to the agreement to settle the action and sent books to him for the outstanding courses and, as well, set out the arrangements for writing the exams. Mr. Gray wrote back, enclosing the completed tests.

[9] In November, 2010, Mr. Jaffrey wrote to advise that the Plaintiff had successfully completed the outstanding courses and the College could issue a diploma to Ms. Rana. A release was enclosed in his letter and a request for a Notice of Discontinuance of the action. Mr. Gray acknowledged receipt of this letter, indicating he had sent it on to Ms. Rana. While the Defendant’s material contains a copy of a diploma issued to the Plaintiff dated November 4, 2010, the Plaintiff disputes that she ever received this diploma.

[10] According to the fax of Mr. Jaffery to Mr. Gray of January 31, 2011, the release was not returned and on January 25, 2011, the Plaintiff advised the Defendant that she was representing herself. Following this, the Defendant retained counsel.

Plaintiff

[11] Ms. Rana relies on her motion record to restore the action to the trial list in response to the Defendant’s motion to enforce the settlement. The Plaintiff makes reference to the fact that she did not receive her diploma as alleged by the Defendant. Further, she asserts there was a transcript dated September 14, 2009 which differed from the transcript dated September 18, 2009 and this is relied on as opposition to the motion for judgment in accordance with the settlement. She submits that the Defendant attended mediation after the alleged settlement and also, there were further settlement offers by the Defendant, which conduct is inconsistent with a settlement having been achieved.

Analysis

[12] It is settled law in Ontario that a solicitor has the authority to bind his or her client unless there is a limitation on the authority and the opposing side has knowledge of the limitation: Scherer v. Paletta [i]

[13] Mr. Jaffery was entitled to rely on Mr. Gray’s correspondence as setting out the Plaintiff’s offer to settle and to assume that he had the authority to make such offer. It is the usual practice that after there has been an agreement as to the terms of a settlement, the parties will execute the necessary closing documentation, usually a release and Minutes of Settlement.

[14] The case law is clear that the first question that must be considered by the Court is whether there was an agreement reached between the parties; if there was, then the question may arise as to what closing documents must be completed: Fieguth v. Acklands Ltd. [ii]

[15] In the case at hand, it is clear that Mr. Gray, as the solicitor representing the Plaintiff, had the authority to make the offer to settle contained in his letter of July 23, 2010. At that point, the Plaintiff had withdrawn from the College without completing her diploma. She had also issued the Statement of Claim against the College claiming damages. The terms of the offer of the Plaintiff were that she be allowed to complete her courses and obtain her law clerk diploma, with the College providing the course materials and books.

[16] In my opinion, Mr. Jaffery’s letter of July 26, 2010 is a clear acceptance of the offer to settle of the Plaintiff. He confirms that the “proposed resolution” is acceptable and indicates that the College will be in contact with Mr. Gray to provide the Plaintiff with the course materials and tests, in accordance with the terms of the offer. The subsequent correspondence makes reference to the settlement and deals with implementing the terms of the settlement. Given that the Plaintiff had withdrawn from the course without completion and had issued a claim against the College claiming a variety of damages, why else would the Defendant agree to allow her to return as a student and provide her with the materials to complete her courses unless the Defendant had accepted the Plaintiff’s offer to settle?

[17] The Plaintiff’s submission that the diploma was not enclosed with Mr. Jaffery’s letter is irrelevant to whether or not there was a binding agreement reached. Similarly, her suggestion that the transcript of September 14, 2009 differed from the one of September 18, 2009 plays no role in my determination of whether or not there was an accepted offer to settle.

[18] There is no suggestion by Ms. Rana that she did not provide instructions to Mr. Gray to make the offer to settle contained in his letter of July 23, 2010 or that there was any limitation on his retainer. Indeed, she confirmed that to me in court in response to my inquiry.

[19] The Plaintiff argues that because the College agreed to attend mediation after the alleged settlement of the case, it is clear that there was no settlement. I do not accept this submission. All of the correspondence from Mr. Jaffery following his acceptance of the Plaintiff’s offer makes it clear that he was of the view that the action was settled. After the Plaintiff notified the Defendant in December 2010 that she was acting on her own, Mr. Jaffery attempted to secure an executed release and when this was not successful, he attended the Court-mandated mediation and took the position that the action was resolved. When Ms. Rana would not agree that a settlement had been effected, the Defendant retained outside counsel who also tried to obtain a Notice of Discontinuance and signed release.

[20] Furthermore, if there were discussions about subsequent efforts by the Defendant to close the file, I do not find them to be of any particular significance to the issue of whether or not the Plaintiff made an offer to settle which was accepted by the Defendant. There may be economic reasons that a party wishes to avoid further litigation and finally achieve closure on an action and they may have nothing to do with the merits of that party’s position on an issue in the lawsuit.

Conclusion

[21] The Defendant shall have judgment in accordance with the Plaintiff’s offer to settle dated July 23, 2010. The Plaintiff shall execute a release in a form satisfactory to the solicitor for the Defendant. The Plaintiff’s action shall be dismissed without costs.

[22] The Plaintiff shall pay to the Defendant its costs fixed at $2,500.00 forthwith.

D.A. Wilson J.
Date: 20120709

[i] Scherer v. Paletta, 1966 286 (ON CA), [1966] 2 O.R. 524(C.A.)

[ii] Fieguth v. Acklands Ltd.(1989) 1989 2744 (BC CA), 59 D.L.R. (4TH) 114 (B.C.C.A.)