SUPERIOR COURT OF JUSTICE - ONTARIO
Court File No.: FS-11-72687-00
Date: 20131118
RE: TUSHAR JAJAL and PUJA AGRAWAL
BEFORE: Justice J.R. Belleghem
COUNSEL:
Preet Kaler, for the Applicant
Gisel Bettencourt, for the Respondent
ENDORSEMENT
[1] The Applicant Tushar Jajal moves for “an order to turn the parts of the Offer to Settle of the Respondent Puja Agrawal into a court order, which was formally accepted by the applicant”.
[2] The Offer to Settle, dated March 20, 2013, contains 57 paragraphs. It also contains roughly 23 headings or sub-headings.
[3] Counsel for the applicant wrote to counsel for the respondent withdrawing his own offers to settle, indicating that his client Tushar Jajal … “accepts your client’s offer to settle in regards to the property issues”. He then attached a formal description of the portion of the respondent’s offer to settle that related to four paragraphs involving property issues. He now takes the position that, because there was nothing in the original offer of settlement that indicated that the terms were not severable, he was entitled to pick and choose among the various paragraphs, subheadings, or headings, to determine which of the portions of the respondent’s offer to settle he would accept, which he would reject, and then ask for judgment for acceptance of the items accepted. The respondent, understandably, took the position that the settlement offer was “global”, as there was nothing in it indicating that it was otherwise severable, and because the applicant had not accepted the entire offer, but only parts of it, that the purported “acceptance” was in fact a counter-offer. I agree with the respondent.
[4] Counsel for the applicant relies on Rule 18(13)(a) of the Family Law Rules which reads:
Failure to Carry Out Terms of Accepted Offer
(13) If a party to an accepted offer does not carry out the terms of the offer, the other party may …
(a) make a motion to turn the parts of the offer within the court’s jurisdiction into an order; or …
[5] I do not read this part of Rule 18 as purporting to make a legislative change to the common law rule that partial acceptance of an offer constitutes a counter-offer.
[6] The offer itself makes no reference to severability. There is nothing in the accompanying correspondence to suggest that the terms of the original offer to settle were severable. I read Rule 18(13)(a) as simply meaning that where an offer to settle has been accepted in full, the court can turn into a judgment any parts of it that are within the court’s jurisdiction to do so.
[7] For example, the Ontario Court could turn custody and access matters into a judgment, while the Superior Court could deal with the property issues. Another example given by counsel was the purported enforceability of a “chastity” clause, which the court would decline to turn into an order even if it were part of the accepted offer to settle, i.e. it could turn the balance of the matters within its jurisdiction into an order. There is nothing in the rule to suggest that Rule 18 has the effect urged by the applicant.
[8] Similar argument to that of the applicant in the present case was made in Desanto et al v. Cretzman et al., 1986 2663 (ON SC), 53 O.R. (2d) 732. There the moving party’s position as set out by Justice Borins was as follows:
- The submission of the applicants is that R. 49 is silent with respect to whether a party is obliged to accept all of the terms of an offer to settle and that, therefore, a party may accept some of the terms, obtain judgment for the basis of the accepted terms and go to trial on those which have not been accepted. Where a party to an offer which is partially accepted fails to comply with the terms of the acceptance, it is submitted that the other party may move for judgment in terms of the accepted offer. Counsel for the plaintiffs, of course, does not agree and repeats the position which he took in his letter of December 13, 1985, that what the defendants have characterized as an “Acceptance of Offer” is a counter-offer which the plaintiffs have not accepted.
[9] Justice Borins rejected that position and stated at para. 7:
It is my opinion that the submission of counsel for the plaintiffs is correct and that there has been no acceptance of the plaintiffs’ offer to settle. As the person who prepared the defendants’ “Acceptance of Offer” recognized, it is a partial acceptance of the plaintiffs’ offer to settle. As such it constitutes a counter-offer which is permissible and expressly sanctioned by subr. 49.07(2): cf., Cook v. Cook (1980), 1980 3785 (ON SC), 16 R.F.L. (2d) 391 (Ont. H.C,). In my view, if there is an acceptance of an offer to settle it must be an unqualified and unconditional acceptance of the terms offered, subject to the right of a plaintiff in accepting a defendant’s offer to require that the money be paid into court or to a trustee: subr. 49.07(4). Subject to subr. 49.07(4), a purported acceptance which contains any qualification or condition constitutes a counter-offer which, of course, the opposite party may accept or reject or, presumably, respond to with another counter-offer.
[10] He goes on at para. 10 as follows:
However, upon my analysis of R. 49 the defendants’ application for judgment pursuant to subr. 49.09(a) cannot succeed. While this subrule adopts the jurisprudence that an agreement to settle is enforceable by motion for judgment, there can be no judgment unless there is in fact an agreement to settle. None exists in this case. For the purposes of subr. 49.01(a) an accepted offer to settle requires an unqualified and unconditional acceptance of the terms of an offer to settle or a counter-offer.
[11] I apply the reasoning of Justice Borins in the Desanto case and, accordingly, dismiss the applicant’s motion for judgment.
[12] If the parties are unable to agree on costs, then the respondent may submit a three-page cost argument in writing within 15 days. The applicant shall have 10 days to respond in writing, not to exceed three pages. The respondent shall have five days for reply in similar fashion. Once I have reviewed the cost submissions, I will issue a cost endorsement.
Justice J. R. Belleghem
DATE: November 18, 2013
COURT FILE NO.: FS-11-72687-00
DATE: 20131114
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: TUSHAR JAJAL and PUJA AGRAWAL
BEFORE: Justice J. R. Belleghem
COUNSEL:
Preet Kaler, for the Applicant
Gisel Bettencourt, for the Respondent
ENDORSEMENT
Justice J.R. Belleghem
DATE: November 14, 2013