SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 1548/12
MOTION HEARD: 20120820

RE: Marion Blake, in her capacity as Estate trustee of the Estate of Godwin Carachi,
Applicant

AND:

Godwin Brent Carachi and Kirk Carachi, in their personal capacities and in their capacity as Succeeding Estate Trustees of the Estate of Godwin Carachi and the Bank of Nova Scotia Trust Company, in its capacity as Succeeding Estate trustee of the Estate of Godwin Carachi,

Respondents

BEFORE: MILLER, J.

COUNSEL:
S. McGrath, for the Applicant

S. Silverman and G. Sternberg, for the Respondents Godwin Brent Carachi and Kirk Carachi

HEARD: August 20, 2012

REASONS FOR DECISION

[ 1 ] The Applicant brings a motion to enforce a settlement. The Respondents take the position that there was no agreement on essential terms of the proposed settlement. Mr. Silverman advised that the Respondent Bank of Nova Scotia Trust Company is prepared to go along with any consent by the other Respondents or any order of this Court in respect of a settlement.

[ 2 ] The Applicant Marion Blake was the Estate trustee of the Estate of Godwin Carachi named in his will. The Respondents Godwin Brent Carachi and Kirk Carachi are the sole beneficiaries. Because of ill health, Ms Blake sought to be relieved of her responsibilities as Estate Trustee. Godwin Brent Carachi and Kirk Carachi, together with the Bank of Nova Scotia Trust Company, were named Succeeding Estate trustees of the Estate of Godwin Carachi. The order which effected the change provided that before anything could be paid out to the beneficiaries Ms Blake was to be compensated for her work as estate trustee.

[ 3 ] Ms Blake was required to pass accounts for the period she acted as Estate trustee and she brought an application to do so. Negotiations began between the parties to settle the passing of accounts.

[ 4 ] The Applicant made an offer to settle May 9, 2012.

[ 5 ] The Respondents made an offer to settle May 14, 2012. It is this offer, “accepted” by the Applicant May 18, 2012, that the Applicant now seeks to enforce as a settlement.

[ 6 ] The May 14, 2012 offer was for $65,000 in compensation to Ms Blake. No time was specified for the payment of this money. The May 14, 2012 offer included a proposal for mutual releases, “mutually satisfactory to their respective counsel”.

[ 7 ] May 16, 2012 the Applicant made a counter-offer for a higher amount of compensation. That offer was rejected by the Respondents in correspondence May 17, 2012 which repeated the May 14, 2012 offer. On May 18, 2012 the Applicant accepted the May 14, 2012 offer, proposing a specific payment date.

[ 8 ] The proposed payment date was not acceptable to the Respondents and there was further correspondence respecting the date for payment of the compensation as well as the form and scope of the releases. In particular the parties could not agree on the form and scope of the release as it related to WeirFoulds LLP, counsel for the Applicant. After several proposals being exchanged the Respondents made a different offer.

[ 9 ] The Applicant posits that her May 18, 2012 acceptance of the Respondents’ May 14, 2012 offer constituted an agreement that she asks the Court to enforce. She proposes that the Court can impose a “reasonable” time for the payment of compensation and proposes that the Court impose releases in accordance with paragraph four of the Respondents’ May 14, 2012 offer and allowing for the mutual release with WeirFoulds LLP to be settled by LawPro.

[ 10 ] The Applicant relies on the decision of Chapnick, J. in Cellular Rental Systems Inc. v. Bell Mobility Cellular Inc. [1995] O.J. No. 721 at paragraph 17 indicating:

An agreement to settle a claim is a contract. To establish the existence of a contract, the parties' expression of agreement must demonstrate a mutual intention to create a legally binding relationship and contain agreement on all of its essential terms: see Canada Square Corp. v. VS Services Ltd. (1981), 1981 1893 (ON CA) , 34 O.R. (2d) 250 (C.A.) ; and Bawitko Investments Ltd. v. Kernels Popcorn Ltd. (1991), 1991 2734 (ON CA) , 79 D.L.R. (4th) 97 (Ont. C.A.) .

[ 11 ] The Respondents do not take issue with this statement of the law, but take the position that the timing of the payment of compensation and the scope of the releases were essential terms on which there was clearly no agreement.

[ 12 ] The Applicant relies on the decision of Lederer, J. in Chater v. York Central Hospital [2009] O.J. No. 2668 , in which he found, on the facts of that case, at paragraphs 27-30, that the form of the releases and the timing of the payment were incidental to and not essential to the agreement made.

[ 13 ] The parties agree that each case turns on its own facts. In my view, it is clear from the exchange of correspondence following the May 18, 2012 “acceptance” of the May 14, 2012 offer that there was a serious disagreement as to the form and scope of the releases. While I might accept that the timing of the payment here was not an essential element of the agreement, particularly when no time frame for payment was included in the Respondents’ May 14, 2012 offer, the form and scope of the releases remained an element on which the parties could not agree, and in fact, where negotiations broke down.

[ 14 ] I note as well that in his correspondence of June 18, 2012, counsel for the Applicant referred to the “potential settlement of the application to pass accounts” as opposed to any binding agreement.

[ 15 ] In these circumstances, I find that the form and scope of the releases were an essential element of the proposed settlement on which the parties did not agree. I find there was no agreement to enforce.

[ 16 ] The Applicant’s motion is dismissed.

[ 17 ] The parties may exchange and file written submissions as to costs, if necessary, no later than September 28, 2012.

MILLER J

Date: August 29, 2012