SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: 12-53578
DATE: 2014/03/31
RE: LINE GRENIER (Plaintiff/Responding Party)
AND
THE ALGONQUIN COLLEGE OF APPLIED ARTS AND TECHNOLOGY c.o.b. as ALGONQUIN COLLEGE (Defendant/Moving Party)
BEFORE: Mr. Justice Marc R. Labrosse
COUNSEL: Ian R. Stauffer and Lesly T. Joseph, counsel for the Plaintiff/Responding Party
Sandra Lebrun, counsel for the Defendant/Moving Party
HEARD AT OTTAWA: March 7, 2014
ENDORSEMENT
[1] This is a motion for summary judgment brought by the Defendant, Algonquin College, pursuant to Rule 20.01(3) of the Rules of Civil Procedure (“Rules”). It is the position of the Defendant that there is no genuine issue requiring a trial because the matter has been settled between the parties. To succeed on this Motion, the Defendant must establish, on the materials filed, that there was a settlement and, if so, that such settlement was not unconscionable. In my view, the Defendant has failed to meet that onus.
[2] The evidentiary record presented by the Defendant relies on the affidavit evidence of the solicitor of the Defendant which, in part, relies on evidence obtained on information and belief and is based solely on the documentary evidence. At the hearing of the motion, the Defendant filed a Supplementary Motion Record which included the Affidavit of the adjuster, Christopher Fawcett (“Mr. Fawcett”). The late filing of the Supplementary Motion Record was received with the consent of the Plaintiff.
[3] While most of the dealings between the parties took place via e‑mail exchanges and is therefore documented, the evidence required to determine the enforceability of the settlement and whether or not the settlement is unconscionable, requires an analysis which goes beyond the documentary evidence which is being relied upon by the Defendant.
[4] As the Defendant brings this motion for Summary Judgment, the Defendant bears the onus of establishing that there are no genuine issues for trial as to the enforceability of the settlement and as to the absence of unconscionability of the settlement.
*Enforceability*
[5] On the issue of the enforceability of the settlement, there was no cross‑examination of the Plaintiff on her affidavit and, as such, her affidavit is not challenged. In addition, there is very little evidence presented by Mr. Fawcett, which goes beyond the content of the e‑mail exchanges between Mr. Fawcett and the Plaintiff. I am of the view that additional evidence is required to determine if the parties came to a meeting of the minds on the essential elements of the settlement. I am concerned with the following issues:
(1) What was the understanding of the adjuster as to the certainty and finality of the settlement;
(2) Was the return of an executed full and final release an essential element of the alleged settlement, which precluded the negotiations from becoming a final settlement;
(3) Why were the funds not directed to the Plaintiff despite not having a signed release? As of this day, the funds still have not been sent to the Plaintiff;
(4) The issue of the investigation report remained outstanding. The Plaintiff never responded to Mr. Fawcett’s refusal to provide a copy of the investigation report. Did the Plaintiff accept this refusal?
[6] I am of the view that these are issues which have not been properly addressed on the record before me and, as such, they raise genuine issues to be explored at trial in order to allow me to draw a conclusion on the finality and enforceability of the alleged settlement.
*Unconscionability of the Settlement*
[7] On the issue of determining if the settlement is unconscionable, both Counsel properly directed me to Titus v. William F. Cooke Enterprises Inc., 2007 ONCA 573, [2007] O.J. No. 3148 (Ont. C.A.) at paras. 36 and 38, which sets out the following criteria which must be met in order to establish unconscionability:
a grossly unfair and improvident transaction; and
victim's lack of independent legal advice or other suitable advice; and
overwhelming imbalance in bargaining power caused by victim's ignorance of business, illiteracy, ignorance of the language of the bargain, blindness, deafness, illness, senility, or similar disability; and
other party's knowingly taking advantage of this vulnerability.
[8] Based on the record before me, the Defendant has not demonstrated that the settlement is not unconscionable and that there are no genuine issues for trial. The following issues, which fall under the above criteria, have not been adequately addressed:
Grossly unfair and improvident transaction. During the negotiations in the fall of 2010, Mr. Fawcett was aware of the Plaintiff’s desire to consult a specialist in January 2011. Further, he did not provide all the information in his possession such as the witness statements and the video surveillance of the incident. I question if the Plaintiff had all the available information to make an informed decision on the terms of the settlement.
Lack of suitable advice. The record before me does not address what advice the Plaintiff had received prior to entering into the settlement. What specific information did she have from her doctors? Had she received any legal advice since the incident? Further, I am not aware if the Plaintiff considered obtaining legal advice and why she may not have done so prior to entering into the alleged settlement.
Overwhelming imbalance in bargaining power. This criterion requires an analysis of the individuals who participated in the negotiations. The case law varies as to when an adjuster and an unrepresented person are in a situation of imbalance in bargaining power. On the record before me, only the unchallenged evidence of the Plaintiff exists. There is no evidence on her abilities to negotiate a settlement with the adjuster without assistance. There is not complete information on the experience of the adjuster.
Taking advantage of the Plaintiff’s vulnerability. Here again, Mr. Fawcett’s evidence is essential to determine if he was aware of her vulnerability. Why did he not allow the Plaintiff three more weeks to consult with her specialist? Mr. Fawcett does not address this in his affidavit.
[9] Additional evidence is required to determine if the settlement is unconscionable.
[10] Further, even with the benefit of the additional powers afforded to me by Rule 20.04(2.1) of the Rules¸ the issues of enforceability and unconscionability cannot be decided based on the record before me. I am in agreement with both counsel that this is not an appropriate situation to hold a mini‑trial and hear oral evidence, pursuant to s. 20.04(2.2) of the Rules. The hearing of oral evidence will not, in my view, avoid the need for a trial. (Hryniak v. Mauldin, 2014 SCC 7).
*Conclusion*
[11] On reading the materials filed and upon receiving the submissions of Counsel for the parties, I am not satisfied that the criteria set out in rule 20.04(2)(a) has been met and that there are no genuine issues requiring a trial with respect to this claim. As such, the Defendant’s motion for summary judgment is dismissed.
*Costs*
[12] Counsel submitted the usual costs envelopes at the conclusion of the motion. No request was made to make any specific representations with respect to costs. Rule 57.03(1) provides that costs should be fixed on hearing of a contested motion unless a different order would be more just. I am not aware of any circumstance which would justify a departure from the court’s usual practice and the costs outlines do not suggest any such issues. In light of the summary nature of this short motion, which proceeded without cross‑examinations on affidavits, the Defendant is ordered to pay costs in the amount of $5500 plus HST. In addition, the Defendant shall pay disbursements (and applicable HST) in the amount of $343.75.
Mr. Justice Marc R. Labrosse
Date: March 31, 2014
COURT FILE NO.: 12-53578
DATE: 2014/03/31
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: LINE GRENIER (Plaintiff/Responding Party)
AND
THE ALGONQUIN COLLEGE OF APPLIED ARTS AND TECHNOLOGY c.o.b. as ALGONQUIN COLLEGE (Defendant/Moving Party)
BEFORE: Mr. Justice Marc R. Labrosse
COUNSEL: Ian R. Stauffer and Lesly T. Joseph, counsel for the Plaintiff/Responding Party
Sandra Lebrun, counsel for the Defendant/Moving Party
ENDORSEMENT
Labrosse J.
Released: March 31, 2014