COURT FILE AND PARTIES

COURT FILE NO.: CV-12-00447497-0000

DATE: 20140821

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Darrel Ronald Beck, Plaintiff

AND:

Ashley Chmara, Defendant

BEFORE: R. F. Goldstein J.

APPEARANCE: James V. Tausendfreund, for the Plaintiff, Moving Party

Ashley Chmara, on her own behalf

ENDORSEMENT

[1] In 2008 Mr. Beck bought a 19-foot Mercury Tahoe boat for $23,256. He took out a loan for the full amount. He was required to make monthly payments of $216.20 on the boat. At the time, Mr. Beck and Ms. Chmara were in a relationship. The relationship ended. Ms. Chmara ended up with the boat in March 2010. There was apparently an agreement for Ms. Chmara to take over the payments when she took the boat. She did not do so and Mr. Beck has, for the last four years, continued to make payments on the boat. There is no evidence as to the boat’s current whereabouts but it seems that there was a sale to a third party, notwithstanding that Mr. Beck never relinquished formal ownership of the boat.

[2] In February 2012 Mr. Beck commenced an action against Ms. Chmara in relation to the boat. He sought $30,000 representing his damages, in addition to punitive damages.

[3] Mr. Tausendfreund and Ms. Chmara’s counsel at the time began discussing a settlement in January and February 2014. Mr. Tausendfreund says that they eventually came to an agreement in February. He brought a motion, returnable today, to enforce it.

[4] On today’s date, Ms. Chmara, who is representing herself, requested an adjournment on medical grounds. Although she is on crutches and appears to be taking some kind medication, I did not grant the adjournment. Ms. Chmara failed to appear at a long-scheduled discovery. She eventually submitted a doctor’s note that simply said “medical reasons” without further explanation. She did not respond to a request for more information about the reason for missing that discovery. Today’s date was set with Ms. Chmara’s consent three months ago. She said that she has been off work for medical reasons for 13 weeks but today was the first that Ms. Tausendfreund, Mr. Beck’s counsel, heard of it. He had also been under the impression that Ms. Chmara was going to consent to the motion. Ms. Chmara now says she wants to pursue her defence.

[5] I did not agree to the adjournment. Despite having more than three months to file material or at least communicate her position to Mr. Tausendfreund she did not do so. Given what happened at the discovery, and given what happened today, the coincidence of medical emergency is a little suspicious. As Flaum C.J. said in United States of America v. York, 933 F.2d 1343 (1991) [at p. 1350 F.2d]:

The man who wins the lottery once is envied. The man who wins it twice is investigated.

[6] Besides, as will shortly be seen, Ms. Chmara’s position has, I regret to say, little merit.

[7] Turning to the substance of the motion, a settlement will be enforced pursuant to Rule 49.09 where the parties intended to create a legally binding agreement and where there is no reason not to enforce it: Sentry Metrics Inc. v. Robert Ernwein et. al., 2013 ONSC 959 at para. 12. The court should adopt an approach similar to that taken to summary judgment motions. The court must first consider whether there are genuine issues of fact or credibility in dispute as to whether the parties intended to create a legally binding agreement. The court then considers, on all the evidence, whether the agreement should be enforced.

[8] In my view, the emails between Mr. Tausendfreund, Mr. Venables (Ms. Chmara’s former counsel) and Ms. Chmara herself make it abundantly clear that there was an agreement. In a series of emails between January 30 2014 and February 13 2014 Mr. Tausendfreund and Mr. Venables (who at some point ceased to act as counsel assisted Ms. Chmara) discussed the terms of a settlement. Mr. Tausendfreund offered to dismiss the action for $20,000, inclusive of costs. After some back-and-forth, Ms. Chmara emailed Mr. Tausendfreund on February 13, 2014:

Please note that I accept the inclusive officer in your email of January 30, 2014. I note that this will be in addition to the $1,700 costs award from January 29, 2014. Please send me and Mr. Venables a release with a non-disclosure paragraph prior to February 15, 2014.

[9] Mr. Tausendfreund did not agree to the release with the non-disclosure paragraph and on February 16, 2014 he emailed Ms. Chmara and Mr. Venables saying that there was no agreement unless Ms. Chmara agreed to certain terms, including the payment of the $20,000 by April 13, 2014. He included the following in his email:

So if Ms. Chmara responds to this email, indicating that she agrees to terms set out herein, and in the release, then we will have a tentative agreement.

[10] On February 17, 2014, Ms. Chmara emailed Mr. Tausendfreund as follows:

I accept the deal without the non-disclosure and I agree to fulfilling the payment by Apr 13.

I am reviewing the terms of the release and if there are any changes I will let you know.

[11] No actual settlement agreement was signed, and the release was not signed. On the other hand, the terms of Mr. Tausendfreund’s email did not require a signed settlement agreement, and Ms. Chmara never indicated that she did have issues with the release.

[12] On April 13, 2014 Ms. Chmara did not pay. Mr. Tausendfreund wrote asking when he could expect payment. Ms. Chmara responded:

Good morning James,

Yes, I most certainly want to put this behind me as well. I was hoping you would give me an extension to May 9th, 2014. I just need to get monies in the appropriate places as $20,000 wasn’t just laying around.

[13] Mr. Tausendfreund agreed to the extension. The funds still were not paid. This motion was then brought.

[14] Ms. Chmara says that there was no agreement because she did not sign the release, and she did not sign any agreement. She says that because of that there was no meeting of the minds and no agreement there is nothing for the court to enforce.

[15] I disagree. The emails make it abundantly clear that she agreed to all the essential terms of the agreement. Her subsequent email asking for more time to pay is evidence that she agreed that she was bound to pay $20,000.00. There need not be a signed agreement or release in order to have a binding settlement: Hoodaie v. RBC Dominion Securities, 2012 ONCA 796.

[16] I am therefore satisfied that there was a binding agreement between the parties. Should the court enforce the settlement, based on all of the evidence? In my view, the answer also clearly yes. The equities of the situation are plain: no matter what other financial and matrimonial issues there were between Mr. Beck and Ms. Chmara, and no doubt there were many, it is clear that she obtained possession of the boat in 2010 and he has continued to make loan payments on it. In my view, by accepting the settlement, Ms. Chmara accepted this fundamental point. It would be unjust not to enforce the settlement. Furthermore, I see no policy reason to permit continued litigation on a case that should have a fairly obvious outcome.

[17] The motion is granted. There will be an order enforcing the terms of the settlement.

COSTS

[18] Mr. Tausendfreund sought $2000 in costs. Having reviewed his bill of costs, and heard his submissions, I think this is an extremely reasonable amount to request. Ms. Chmara did not disagree and asked for time to pay as she is currently off work and not sure when she will be back. She will have six months.

R.F. Goldstein J.

Date: August 21, 2014