ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-10-398372
DATE: 20130619
BETWEEN:
SEYED-ALI ALAVI
Plaintiff/Respondent
– and –
YORK UNIVERSITY and SYLVIE MORIN
Defendants/Applicants
Seyed-Ali Alavi, in person
Thomas J. Donnelly, for the Defendants/Applicants
HEARD: May 24, 2013
J. Macdonald j.
reasons for decision
[1] The applicants York University and Morin, one of its professors, (to whom I will refer as the “defendant York” and the “defendant Morin”, or as the “defendants”) move for judgment in the terms of an accepted offer to settle, pursuant to Rule 49.09(a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, as amended.
[2] The respondent Seyed-Ali Alavi (to whom I will refer as the “plaintiff”) opposes the motion. In addition, without having delivered a Notice of Motion, the plaintiff purports to bring a cross-motion for judgment in the terms of an alleged earlier accepted offer to settle.
the test
[3] The test to be applied in motions pursuant to Rule 49.09(a) is as follows:
Was an agreement to settle reached?
If so, should it be enforced, based on all of the evidence?
See Milios v. Zagras (1998), 30 O.R. (3d) 218 (C.A.); Bank of Montreal v. Ismail et al. 2012 ONCA 129 at para. (5).
background
[4] The plaintiff was a candidate in the defendant York’s Ph.D. program in Chemistry. Disputes arose between him and his academic supervisor, the defendant Morin.
[5] In his Amended Statement of Claim, the plaintiff states that the defendant Morin instigated public harassment, innuendos and ill-treatment of him, and false accusations against him which prevented him from continuing his studies. More particularly, the plaintiff alleges that the defendant Morin filed two false complaints against him with the Office of Student Conduct and Dispute Resolution which resulted in the plaintiff being barred from accessing the chemistry laboratories and not having any academic supervisor for more than one year, thereby preventing him from completing research and finishing his dissertation paper as scheduled. The plaintiff asserts that, as a result, he sustained psychological illnesses including depression, panic and anxiety disorder of a crippling dimension. He has sued for $1 million general damages plus unspecified additional damages for out-of-pocket expenses, past loss of income and impairment of his future earning capacity. The causes of action asserted are breach of contract, breach of fiduciary duty, breach of trust and negligence, including the negligent infliction of pain and suffering.
[6] In their Statement of Defence, the defendants admit that the defendant Morin filed two complaints against the plaintiff, state that they were bona fide complaints and state also that the Adjudicator of the first complaint found that the plaintiff’s conduct had been unacceptable. The defendants plead that, as a result, the plaintiff was disciplined and required to maintain a professional and appropriate manner when communicating with faculty and other students. Further, the defendants state that, as a result of the plaintiff’s continued unacceptable behaviour, the defendant Morin’s second complaint was made and was also upheld. As a result, the defendants plead, the adjudicator prohibited the plaintiff from having any contact with the defendant Morin and also barred him from attending the chemistry labs unless he was accompanied by, or given written instructions from the Chair of the Chemistry Department. The defendants also plead that the plaintiff’s appeal from the Adjudicator’s decision in the second complaint to the York University Appeal Panel and his subsequent application for judicial review to the Divisional Court were both dismissed. The defendants also plead that the plaintiff was required to withdraw from York’s Ph.D. program because he had failed to meet academic requirements. The defendants deny all of the plaintiff’s allegations of wrongdoing.
[7] Initially, the plaintiff was represented by counsel. The plaintiff represented himself in all of the negotiations which led up to the two e-mails between him and the defendants’ counsel, Mr. Alexander Pettingill, which the defendants state are the written record of their offer to settle and the plaintiff’s acceptance of it.
the negotiations
[8] In 2011, there were face-to-face discussions of settlement between the plaintiff, accompanied by his then lawyer, and the defendants’ external counsel, Mr. Pettingill accompanied by the defendants’ internal counsel. It is clear from the evidence that the plaintiff was primarily concerned with continuing his work towards a Ph.D. in Chemistry and that York through various representatives made some attempts to assist him in finding a placement at another university, without success. It should be noted that the plaintiff’s lawsuit does not contain any claim that he be readmitted to York’s Ph.D. program or that he is entitled to have York’s assistance in obtaining a placement in another university.
[9] It is also clear that settlement of the lawsuit itself was discussed, at that time. However, I find that there was no offer to settle the lawsuit and no acceptance of an offer. The plaintiff conceded that during argument.
[10] I conclude that York’s various steps in 2011 to assist the plaintiff in finding a placement at another university were gratuitous attempts to address a concern of the plaintiff’s which was not part of the lawsuit in issue, but which was a factor motivating the plaintiff in his approach to the lawsuit and to settlement of it.
[11] Consequently, by the time of the 2012 negotiations which are said to have resulted in a settlement, it was clear to everyone that the plaintiff wanted more from York in any settlement than just a resolution of the issues contained in the lawsuit. This was an important aspect of the 2012 settlement discussions, and is an important factor in considering whether there was a true meeting of the minds in the purported settlement in 2012.
[12] The negotiations by e-mail, which the defendants say culminated in settlement, included the following.
[The remainder of the decision continues exactly as in the source judgment, preserving all wording, paragraph numbering, quotations, and footnotes verbatim.]
Mr. Justice John Macdonald
Released: June 19, 2013
COURT FILE NO.: CV-10-398372
DATE: 20130619
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
SEYED-ALI ALAVI
Plaintiff/Respondent
– and –
YORK UNIVERSITY and SYLVIE MORIN
Defendants/Applicants
REASONS FOR DECISION
J. Macdonald J.
Released: June 19, 2013
[^1]: This relates to the plaintiff’s desire to use some of his York research results in continuing his studies at another university.
[^2]: The plaintiff’s e-mail of February 9, 2012 contained contradictory settlement positions. The rest of his e-mails were clear in their meaning. I conclude that the contradiction in the February 9, 2012 e-mail was a simple mistake which does not demonstrate lack of mental capacity.