COURT FILE AND PARTIES
COURT FILE NO.: CV-03-25760
DATE: 2013/10/17
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: OZ Optics Limited, Plaintiff
AND
Timbercon, Inc., Defendant
BEFORE: Mr. Justice James McNamara
COUNSEL:
Stephen Victor, Q.C., Counsel for the Plaintiff
Sandra L. Barton, Counsel for the Defendant
HEARD IN OTTAWA: October 11, 2013
ENDORSEMENT
[1] This matter has a long history.
[2] The Action was tried by Parfett J. of this court and in a judgment dated February 10, 2010 she dismissed the plaintiff’s claims in full.
[3] The plaintiff appealed that judgment to the Court of Appeal and on November 15, 2011 the Court of Appeal released its decision upholding the trial judge in all but one area, specifically they allowed the appeal in respect of the claim for negligent misrepresentation and ordered a new trial of that issue limited to damages. They also allowed the plaintiff the majority of its costs of the trial on a substantial indemnity scale. In para. 16 of their Costs Endorsement dated October 30, 2012 (2012 ONCA 735) dealing with the scale of costs they stated, in part:
In any event, substantial indemnity costs are warranted when one of the parties is guilty of reprehensible conduct either prior to the litigation or during the litigation itself: see Hunt v. TD Securities Inc. (2003), 2003 3649 (ON CA), 66 O.R. (3d) 481 (C.A.) at para. 123. In our view, the conduct of Timbercon in rigging the bids prior to the commencement of the litigation is sufficient to justify such an award.
[4] After the completion of the appeal process, discussions then ensued between the parties with relation to attempting to resolve the outstanding issue. On February 14, 2013 the defendant’s counsel emailed counsel for the plaintiff and after making several points, towards the end of the email, the following appears:
I agree with you that the costs of another hearing are going to be significant. On that basis, and to ensure that Timbercon is protected from any adverse costs award, Timbercon is prepared to pay $80,000 (inclusive of interest and costs) for a dismissal of the remaining matters at issue in this action and a full and final release of any and all claims Oz may have. (Emphasis added)
[5] On June 26, 2013 plaintiff’s counsel responded as follows:
Further to your email of February 14, 2013, below, please be advised that OZ accepts Timbercon’s offer to settle this matter on the basis that Timbercon will pay $80,000 (inclusive of interest and costs) to OZ in exchange for a dismissal, without costs.
Please provide me with the settlement funds at your earliest convenience. You have my authority to execute a consent and approve a draft order for the purpose of obtaining a dismissal of the action on a without costs basis.
[6] There then ensued an exchange of draft releases between the parties with them being unable to agree on a final wording. The two most current drafts are one prepared by the plaintiff on July 19, 2013, with the defendant responding with its further draft on July 29.
[7] A comparison of the competing releases demonstrates that the main area of dispute is that in several places in the release document the defendant wants additional wording inserted to the effect that the release includes “any and all disputes and claims between the parties that are presently known or reasonably discoverable and which arose out of, or in any way relate to, the dealings between the parties that gave rise to the action and the appeal.”
[8] The case law is clear that where a settlement is reached, it is normally implied that an executed final release will be provided. This principle was well stated by Chapnik J. of this court in Cellular Rental Systems Inc. v. Bell Mobility Cellular Inc., [1995] O.J. No. 721, where at para. 24 the decision states:
It is well established that settlement implies a promise to furnish a release unless there is agreement to the contrary. On the other hand, no party is bound to execute a complex or unusual form of release: although implicit in the settlement, the terms of the release must reflect the agreement reached by the parties. This principle accords with common sense and normal business practice.
[9] I am not persuaded that there was ever any express agreement not to furnish a release. That is evidenced by the fact that there were ongoing negotiations about the wording of that release over a period of several months. The issue is then which of the release documents, if either, reflects the agreement reached by the parties.
[10] These cases, of course, must be viewed through the lens of their factual background. This case is somewhat unusual in that the settlement is not prior to judicial determination. Here there was a lengthy trial and then an appeal. The only outstanding issue after the appeal was a claim for negligent representation. In the offer to settle of February 14, 2013 the sum of $80,000 was offered for a dismissal of the remaining matters at issue in this action and a full and final release of any and all claims the plaintiff might have, obviously referable to the remaining issue in the action. The release prepared by the plaintiff is clear that the settlement being entered into is a full and final release of all claims made in the action or the appeal. Clearly, in my view, that is reflective of the agreement reached by the parties. Certainly there was never any discussion that pursuant to the settlement under discussion it was inclusive of any discoverability rights the plaintiff might have. That is the major thrust of the additional wording requested by the defendant.
[11] I am satisfied that the final release prepared by the plaintiff is fair, reasonable, and reflective of the agreement reached.
[12] As the plaintiff has been successful on this motion, they shall have their costs which I fix in the amount of $5,000 all-inclusive.
Mr. Justice James McNamara
Date: October 17, 2013
COURT FILE NO.: CV-03-25760
DATE: 2013/10/17
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: OZ Optics Limited, Plaintiff
AND
Timbercon, Inc., Defendant
BEFORE: Mr. Justice James McNamara
COUNSEL:
Stephen Victor, for the Plaintiff
Sandra L. Barton, for the Defendant
ENDORSEMENT
Mr. Justice James McNamara
Released: October 17, 2013