COURT FILE AND PARTIES

COURT FILE NO.: CV-09-393200
DATE: 20121123
SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Anthony Marjadsingh, personally, Sharon Marjadsingh, Kathy Lochan, Joshua Marjadsingh, Kyle Marjadsingh, and Taylor Marjadsingh, minors by their litigation guardian, Anthony Marjadsingh (Plaintiffs/Responding Parties) and Harmeet Walia (Defendant/Moving Party) and St. Dimitar Bullgarian Orthodox Church (Third Party/ Responding Party)

BEFORE: Justice Beth Allen

COUNSEL:
Daniel Czutrin, for the Plaintiffs/Responding Parties
Ashley Artopoulo, for the Defendant/Moving Party
Kevin Bridel, for the Third Party/Responding Party

HEARD: November 19, 2012

ENDORSEMENT

BACKGROUND

[1] This is a Rule 20.04 motion brought by the defendant Harmeet Walia (“Walia”) against the plaintiffs on the grounds the plaintiffs’ claim raises no issue requiring a trial.

[2] Anthony Marjadsingh (“Marjadsingh”) is the husband of the plaintiff Sharon Marjadsingh, the brother of the plaintiff Kathy Lochan and the father of the minor plaintiffs. Marjadsingh brings this action seeking damages as a result of the injuries he alleges he sustained in a motor vehicle accident involving a vehicle driven by Walia. The third party, St. Dimitar Bullgarian Orthodox Church (“the Church”) is the occupier of the premises where the accident occurred. The other plaintiffs seek damages under the Family Law Act .

[3] At around 8:30 a.m. on the morning of December 12, 2007, both Marjadsingh and Walia were dropping their children off at the daycare at the Church. The driveway in front the Church which had a downward slope was covered with black ice. As Walia was approaching Marjadsingh’s vehicle from the rear, his vehicle slid out of his control and struck the rear passenger door of Marjadsingh’s vehicle. Marjadsingh jumped out of the way of Walia’s car and landed on the ground injuring his left leg. The vehicle driven by Marjadsingh belonged to a friend, Mohammed Nasir (“Nasir”).

[4] Walia says his vehicle did not touch Marjadsingh and Marjadsingh contends the vehicle struck his left leg. I need not determine that issue for the purposes of this motion.

[5] Immediately after the accident, Walia took Marjadsingh to a nearby walk-in clinic where his doctor examined him and ordered an x-ray of his left leg. Walia immediately took Marjadsingh to have the x-ray which revealed no fractures. Walia then drove Marjadsingh home and they exchanged phone numbers.

[6] Marjadsingh called Walia on about the evening of December 12, 2007 and he informed Walia about damage to Nasir’s vehicle and his lost pay from missing work because of his injuries. They agreed to settle the matter for a total amount of $1,900. According to Walia, $950 was to be applied toward the damage to the vehicle and $950 to compensate Marjadsingh for his lost wages and injury. Walia wanted their agreement be set down in writing due to his concern that Marjadsingh might later approach him for more money.

[7] Walia took it upon himself to search the internet where he found a standard form release (“the Release”) containing terms that accorded with their situation. Walia emailed a copy of the Release to Marjadsingh on about December 13, 2007. Walia met with Marjadsingh on about December 16, 2007 at a Tim Hortons and Marjadsingh executed the Release that day. Shortly after executing the Release Marjadsingh brought the underlying action seeking damages for injuries he alleges he sustained in the accident.

THE RELEASE

[8] The Release states as follows:

In consideration of the sum of Nineteen hundred ($1,900.00) CAD, to be paid by two checks of $950.00 each, the receipt and sufficiency of which consideration is acknowledged, I, Tony Marj of 21 Coin St. Brampton and Nasir Mohammed of 1489 Edmund Dr. Pickering, (collectively the “Releasor’) releases and forever discharges Harmeet Walia (the ‘Releasee’) of, 1801-210 Steeles Avenue West, Brampton, Ontario, his spouse, heirs, executors, administrators, legal representatives and assigns from all manner of actions, causes of actions, debts, accounts, bonds, contracts, claims and demands for or by reason of any damage, loss or injury to person and property which has been or may have been sustained as a consequence of a motor vehicle accident involving the vehicle driven by Releasor, License plate # BAPK 146, and a vehicle driven by Releasee, License plate #BAKH 308, which occurred on December 12, 2007 at 8:30 AM in the parking lot of Little Folks Montessori Inc. 1555 Steeles Avenue West, Brampton.

The Releasor acknowledges that this release is given with the express intention of effecting the extinguishment of certain obligations owed to the Releasor. The Releasor further understands and acknowledges that he may have suffered injuries or complications unknown at the present, that the settlement amount was determined taking into consideration this possibility, and that he is releasing these unknown claims.

For the above noted consideration the Releasor further agrees not to make or take proceedings against any other person or corporation which might claim contribution or indemnity under the provisions of any statute or otherwise. The releasor also acknowledges that this release is intended to cover Aviva, the liability insurance carrier of the Release, as it pertains to the Releasee’s insurance policy and this particular claim or dispute as described above.

It is agreed that the payment is not deemed to be an admission of liability on the part of the Releasee or any other party.

It is declared that the terms of this settlement are fully understood; that the amount or type of consideration stated is the sole consideration for this release and that the sum is accepted voluntarily for the purpose of making a full and final compromise, adjustment and settlement of all claims for injuries, losses and damages resulting or which may result from the above described motor vehicle accident.

[Emphasis added]

THE ISSUE

[9] Walia asks the court to grant summary judgment enforcing the settlement pursuant to the terms of the full and final release. He submits there is no genuine issue requiring a trial as to the enforceability of the Release which thereby precludes Marjadsingh from bringing the action.

THE LAW ON SUMMARY JUDGMENT

[10] A defendant may move for summary judgment with supporting evidence after delivering a statement of defence and request that all or part of the claim be dismissed. [R. 20.01(3)].The responding party to the motion may not rest solely on allegations or denials in their pleadings. That party must set out in an affidavit the evidence showing there is a genuine issue requiring a trial. [R. 20.02(2)].Where the court is satisfied there is no genuine issue requiring a trial with respect to a claim or a defence, the court shall grant summary judgment.

[11] Courts have considered the factors to be applied in determining whether summary judgment is appropriate. The moving party must satisfy the court there are no issues of fact required to be tried to succeed in the motion. [ Soper v. Southcott , [1998] O.J. No. 2700 at para. 14 (Ont. C.A.) ]. The party resisting summary judgment has the onus to satisfy the court there are material facts to be tried and must demonstrate there is a real chance of success at a trial. The resisting party must adduce evidence of material facts that require a trial to assess credibility, weigh evidence and draw factual inferences. Courts have held the party resisting the motion must “lead trump or risk losing”. [ 1061590 Ontario Ltd. v. Ontario Jockey Club (1995), 1995 1686 (ON CA) , 21 O.R. (3d) 547 at 557 (Ont. C.A.)]. The court is entitled to assume the evidence contained in the record is all the evidence the parties would rely on if the matter proceeded to trial. [ Ontario Jockey Club , supra , at p. 557].

[12] The Court of Appeal established a benchmark test to assist in evaluating which cases may be disposed of without a trial and which may require a trier of fact to assess the evidence. The Court had this to say:

We find the passages set out in Housen , at paras. 14 and 18, such as “total familiarity with the case as a whole”, “extensive exposure to the evidence” and “familiarity with the case as a whole”, provide guidance as to when it is appropriate for the motion judge to exercise the powers in Rule 20.04(2.1). In deciding if these powers should be used to weed out a claim as having no chance of success or be used to resolve all or part of an action, the motion judge must ask the following question: can the full appreciation of the evidence and the issues that is required to make dispositive findings be achieved by way of summary judgment, or can this full appreciation only be achieved by way of a trial?

We think this “full appreciation test” provides a useful benchmark for deciding whether or not a trial is required in the interest of justice.

[ Combined Air Mechanical Services Inc. v. Flesch 2011 ONCA 764 , at paras. 50 and 51 , (Ont. C. A.) ].

ANALYSIS

[13] The defendant Walia and the third party Church advance basically the same arguments in this motion.

Basic Principles of Contract Law

[14] Having reviewed the evidence and the parties’ arguments, I conclude the court can achieve a full appreciation of the issues and facts and dispose of the matter without a trial.

[15] This case revolves around the law of contract and Marjadsingh’s argument he should not be held to the terms of the Release. He makes a number of arguments based on various doctrines that if applicable could permit him to be relieved from the obligations of the Release.

[16] We start from the fundamental principles. The first and best evidence of an agreement is generally the written agreement or document that is intended to contain the terms of the agreement. The starting point for the interpretation of the intentions of the parties is to look at the plain and ordinary meaning of its words. If the words in the contract have a plain and ordinary meaning, the words will be assigned that meaning unless there is some good reason to depart from that approach. [ H & M Hennes & Mauritz Inc . v. T.E.C. Leaseholds Limited 2010 CarswellOnt 13515 (Ont. S.C.J.), at para. 10] .

[17] Marjadsingh does not rely on the doctrine of ambiguity to say that the terms of the Release are not clear. The clear intention of the Release is to settle all present and future claims with respect the motor vehicle accident on December 12, 2007. Marjadsingh says he simply did not understand the Release and that Walia ought to have alerted him to its terms.

[18] A release constitutes a valid contract and like any other contract it is expected that parties should be held to what they have promised. A valid release releases the releasee from any subsequent actions related to the released claims in exchange for money or other valid consideration. [ Taske Technology Inc. , v. PrairieFyreSoftware Inc. , 2004 66295 (ON SC) , [2004] O.J. No. 6019 (Ont. S.C.J.), at paras. 17 and 19] . Courts do not lightly depart from the basic principles. Even where an exception to the basic rules applies there are strict rules that govern their application.

[19] There are several grounds on which a contract may be set aside. These include misrepresentation, fraud, duress, mistake of fact, lack of capacity, non est factum and unconscionability. Marjadsingh makes his argument based on unilateral mistake, non est factum and unconscionability. He relies on the equitable remedy of rectification and asks the court to intervene and find the terms of the Release unenforceable.

[20] I find for the following reasons none of those doctrines are open to Marjadsingh on the facts of this case.

Mistake

[21] Marjadsingh argues he was mistaken as to the terms of the contract when he executed the Release. There was no consensus ad idem . He submits he thought he and Walia had only arrived at a settlement about damage to Nasir’s vehicle. Marjadsingh asserted in his affidavit he was certain they had not talked about settling an amount for his injuries. In cross-examination however he stated he was not certain whether his injury claim was discussed. Marjadsingh admits he did not read the Release before he signed it. In cross-examination he admitted he might have been careless in not reading it. Despite saying he did not read it, he also testified it was a legal document he did not understand. As a justification for not reading the document, in spite of the fact Marjadsingh and Walia did not know each other, Marjadsingh contends he put his trust in Walia that the Release only dealt with the damage to the vehicle.

[22] Dos Santos dealt with a circumstance where the party challenging a settlement contended he believed after the minutes of settlement were signed he could proceed against the other parties on his claim. The trial court held:

Mr. Waite was under a mistake in that he believed he could proceed against all of the other parties on his claim and not just on an accounting against Mr. Steer. The minutes of settlement are clear in that regard and Mr. Waite signed them personally and was represented by counsel. As was stated in the Director of Assessment v. Begg (1988), 1986 3930 (NS SC) , 33 D.L.R. (4 th ) 239 at 246, if there was a mistake, it was between Mr. Waite and his own solicitor and not between the parties in question. Furthermore, for minutes of settlement to be set aside for a unilateral mistake, it is fundamental that such mistake must be known to the other party. [ Dos Santos , supra , at para. 4; see also Harper v. Kami’s Eating and Meeting Place , 1996 CarswellOnt 3647(Ont. Ct. Gen. Div) , at para. 9] .

[23] For a party to rely on unilateral mistake to set aside a contract, the other party must be shown to have been aware of the mistake. I have no evidence Walia knew Marjadsingh had misapprehended the terms of the Release and that there was no consensus ad idem .

Non Est Factum

[24] N on est factum is a doctrine in contract law that allows a party to avoid adhering to a contract they signed on the basis of a mistake as to the kind of contract. An agreement or document is void at common law if a person is induced by fraudulent means to sign a written document such that the person has not genuinely agreed to. [ Marvco Color Research Ltd. v. Harris , [1982] 2 S.C.R. 744 (S.C.C.) ] Again, Marjadsingh has shown no proof he was induced, much less by fraudulent means, into signing the Release. He had days to think about whether to sign it and to seek advice. There is no evidence, except his self-serving assertion, that indicates he did not freely sign the Release of his own will or that he did not genuinely agree to its terms.

Standard Form Contract

[25] Marjadsingh also attempts to rely on the authorities that have allowed a party to avoid their contractual obligations when they have signed a complex standard form contract. The Ontario Court of Appeal in Tilden Rent-A-Car dealt with the onerous terms of a car rental agreement which agreements are routinely signed by the customer in rushed circumstances with little or no opportunity to read the terms. The court held that a party can only be bound to a signed standard form contract when it is reasonable to believe that they consented to the terms. [ Tilden Rent-A-Car v. Clendenning , 1978 1446 (ON CA) , 1978 CarswellOnt 125; 18 O.R. (2d) 601 (Ont. C.A.), at para. 26].

[26] The Release was generated by Walia through a computer search. Except for filling in some particulars such as the parties’ names, the date, the date of the accident and the name of his insurance company, Walia was not the author of any other part of the Release. The Release is one page with terms that could be easily comprehended by many or that could easily be explained by a lawyer to someone of Marjadsingh’s background, if necessary. This is not the type of standard form contract contemplated in Tilden Rent-A-Car , supra . The type of document the courts are most concerned about are contract s between parties where its terms and conditions are set by one of the parties such that the other party is in a position with little or no opportunity to negotiate the terms. It is an all or none situation where the party who sets the terms is frequently in a more powerful bargaining position, such as an insurance company, a landlord or a car rental company.

[27] Again, Marjadsingh had a few days to ponder whether to sign the Release and to obtain legal advice if required. There is no evidence he was under pressure to sign or, as I discuss below, that he was in an unequal bargaining position vis à vis Walia. As well, in his business life, Marjadsingh was quite accustomed to dealing with standard form contracts. I do not think one could reasonably conclude in these circumstances that Marjadsingh did not consent to the terms of the Release.

Rectification

[28] Rectification is an equitable remedy the purpose of which is to ascertain that one party is not unjustly enriched at the expense of another. A court will rectify an inaccurately drawn written agreement so that it conforms to the agreement the parties intended to make. The party wishing to rely on this equitable remedy must satisfy a standard higher than the regular civil standard of “more probable than not”. A bare assertion is not sufficient.

[29] The plaintiff must show “convincing proof” that there was a prior inconsistent oral agreement; that the written document does not conform with the prior oral agreement and that the defendant knew or ought to have known of the mistake in reducing the oral terms to writing and that permitting the defendant to take advantage of the error would amount to fraud or an equivalent to fraud; and that the precise form in which the written instrument was done can be made to express the prior intention. [ Performance Industries Ltd. v. Sylvan Lake Golf &Tennis Club , [2002] 1 S.C.R. 774 ].

[30] Marjadsingh has fallen far short of meeting the onerous test that would allow the court to intervene. The facts actually suggest that the terms of the Release reflect Walia’s version of the terms previously agreed upon orally. That is, Walia drew up two cheques, one for Nasir for damage to his vehicle, and one for Marjadsingh and a reasonable conclusion that can be drawn from this is that the cheque for Marjadsingh was to compensate him for his injuries and lost pay. Marjadsingh relies on a bare assertion and not much more so rectification is not a remedy available to him.

Unconscionability

[31] The courts have set a very high threshold for parties seeking to set aside an agreement on the ground of unconscionability. In Titus v. William F. Cook Enterprises Inc , the Ontario Court of Appeal addressed the strict requirements to succeed on such a claim:

A party relying on the doctrine of unconscionability to set aside a transaction faces a high hurdle. A transaction may, in the eyes of one party, turn out to be foolhardy, burdensome, undesirable or improvident; however, this is not enough to cast the mantle of unconscionability over the shoulders of the other party. [ Titus v. William F. Cook Enterprises Inc , 2002 ONCA 573, at para. 36].

[32] The Ontario Superior Court relied on Titus , supra , in citing the elements that must be met to succeed in a claim of unconscionability:

A party relying on the doctrine of unconscionability to set aside a contract faces a high hurdle. The following four elements are necessary to set aside a release on the basis that it is unconscionable: (1) a grossly unfair and improvident transaction; (2) victim’s lack of independent, or otherwise suitable advice; (3) an overwhelming imbalance in bargaining power caused by the victim’s ignorance of business, illiteracy, ignorance of the language of the bargain, blindness, deafness, illness, senility, or similar disability; and (4) the other party’s knowingly taking advantage of this vulnerability. [ Bjelakovic v. Accenture Global , 2008 32802 (ON SC) , 2008 CarswellOnt 3954 , 67 C.C.E.L. (3d) 300 (Ont. S.C.J.) , at para. 28 and Grixti v. Kingston (City) , [2010] O.J. No. 4022, (Ont. S.C.J.) , at para. 29] .

[33] Marjadsingh has not satisfied the court that any of the elements of unconscionability marked the circumstances under he executed the Release. He relies on his own self-serving denial that an injury claim was not discussed. The fact is Marjadsingh had visited his doctor and had an x-ray done immediately following the accident. There was no medical evidence that he was badly injured. There is no basis on which to say that at the time the Release was signed the settlement of his medical claim was grossly unfair or improvident.

[34] Furthermore, Marjadsingh had received the Release by email several days before he signed it. If he did not understand its terms, he could have sought the advice of a lawyer. He chose not to do so. That failure cannot be laid at the feet of Walia.

[35] There is no evidence of an overwhelming imbalance of bargaining power between Marjadsingh and Walia or that Marjadsingh was vulnerable. Marjadsingh is a business man who subcontracts with a security company to install security systems in houses. He deals with standard form contracts that customers are required to sign. The simple fact that Marjadsingh does not have the same education level as Walia, who has an MBA, does not alone indicate an overwhelming inequality in their positions. As well, I note the transcript of Marjadsingh’s cross-examination reveals a man who is quite articulate with no lack of ability to express his views.

[36] Apart from Marjadsingh’s assertion that he put his trust in Walia that the Release only addressed property damage, there is no suggestion in the evidence that Walia took advantage of him. If it is true that Marjadsingh did not read the agreement for that reason, that is a mighty foolhardy reason since he did not know Walia. In any event, there is other evidence that suggests that something other than property damage was discussed. Again, Walia wrote two cheques, one for Nasir for the repairs on his vehicle and the other for Marjadsingh. As I concluded earlier, it is more reasonable to accept Walia’s evidence that the cheque for Marjadsingh was for his injuries and lost pay. Further, Marjadsingh admitted he cashed only one cheque and never returned the funds to Walia despite the position he takes in this motion that the Release is unenforceable.

CONCLUSION

[37] Marjadsingh failed to meet his obligation as the responding party in a summary judgment motion. He did not succeed in adducing evidence of material facts that satisfy the Court that the Release is unenforceable and that he should not be precluded from proceeding to trial.

[38] For all the above reasons, I order summary judgment and dismiss the plaintiffs’ claims.

COSTS

[39] This motion was set for a full day. However, only two hours was required. The proceeding did not raise difficult or complex issues as the law on the enforceability of contracts is well settled.

[40] The defendant and third party were entirely successful and are entitled to their costs. The defendant seeks partial indemnity costs in the total amount of $8,822.48 inclusive of disbursements and HST. The third party seeks costs in the total amount of $5,719.50 inclusive of disbursements and HST.

[41] If the plaintiff had been successful on the motion he would have sought partial indemnity costs in the total amount of $9,398.25 inclusive of disbursements and HST.

[42] I remind the plaintiffs that courts strongly frown on a party who resiles from a valid agreement which the other party relies on in good faith. Courts have awarded the higher scale of costs in such circumstances. While I am not prepared to award full or substantial indemnity costs in this circumstance, I took Marjadsingh’s conduct into account in awarding the successful parties costs in the total amount of $10,000 each inclusive of disbursements and HST.

[43] The plaintiffs shall pay the defendant $10,000 and the third party $10,000 within thirty days of this Order.

ORDER

[44] Order accordingly.

Allen J.

Date: November 23, 2012