Editor’s note: Corrigendum released on September 25, 2014 and appended to the original decision. The corrections were not integrated in the original reasons.

COURT FILE NO.: CV-13-480281

DATE: 20140915

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

ANSAAR FOUNDATION INC.

Plaintiff

– and –

MADRESA ASHRAFUL ULOOM (also known as M.A. ULOOM), YUSUF GULAM PANCHBHAYA (also known as YSUF PANCHBAYA), IBRAHIM BANGI, ZIA-UD-DIN KHATTAK and IDRISH MARVIA

Defendants

Nafisah Chowdhury, for the Plaintiff

Sabrina Hussain, for the Defendants

HEARD: June 20, 2014

b. p. o’marra j.

ruling

[1] This is an application to enforce terms of a settlement pursuant to Rule 49.09.

facts

[2] The plaintiff Ansaar raised charitable funds in excess of $70,000 in 2005 and 2006 that were provided to Uloom to hold in trust for Ansaar.

[3] Panchbhaya is the President of Uloom.

[4] Starting in 2008, Ansaar made multiple requests for return of the funds from Uloom. Other than a payment of $2,150 the funds were not returned.

[5] In May of 2013 Ansaar commenced an action for return of the funds. The amount of the claim was $68,240 plus special damages related to five dishonoured cheques from Uloom and Panchbhaya.

[6] On September 13, 2013 settlement discussions took place at the office of counsel for Panchbhaya. Those in attendance were as follows: Sabrina Hussain – counsel for Panchbhaya; Nafisah Chowdhury – counsel for Ansaar; and Mr. Panchbhaya. Another director of Ansaar attended by teleconference.

[7] A settlement proposal was discussed by the parties and their counsel. The representatives of Ansaar did not have the authority to accept the proposal without approval of the Ansaar Board. The Ansaar representatives agreed to take the settlement proposal back to their Board for approval.

[8] By email dated October 7, 2013 counsel for Ansaar advised counsel for Panchbhaya and Uloom that the proposed settlement dated September 13, 2013 was agreeable to Ansaar. Specific terms of settlement were attached.

[9] By email dated November 12, 2013 counsel for Panchbhaya confirmed agreement on the settlement. The message also referred to Panchbhaya having already paid $2,000 in cash as well as a cheque for $5,000. Counsel for Panchbhaya and Uloom concluded by stating that if those two amounts are incorporated “than (sic) I think we can have something agreed to very soon”.

[10] By reply email on November 12, 2013 counsel for Ansaar acknowledged confirmation of the agreement dated October 7, 2013. She also confirmed that Panchbhaya and Uloom had been given credit for the two amounts referred to in the earlier email of that day.

[11] On November 29, 2013 Panchbhaya and Uloom made a further payment pursuant to the settlement in the amount of $500. This payment was due November 10, 2013.

[12] On January 13, 2014 counsel for Ansaar sent a copy of settlement documents to counsel for Panchbhaya and Uloom for signature. The terms were entirely in accord with the agreement reached on November 12, 2013. Counsel for Ansaar also advised that the defendants were in default of their payment obligations under the settlement agreement.

[13] By email dated January 15, 2014 counsel for Panchbhaya and Uloom advised that her client was not in town and not feeling well and that he would bring the payments up to date next week. She also said she was trying to coordinate a meeting with her client to review and sign the agreement.

[14] On February 3, 2014 counsel for Ansaar wrote to counsel for Panchbhaya and Uloom advising that there remained a default in the settlement payments. By emails dated February 4 and 6, 2014 counsel for Panchbhaya and Uloom indicated that payments would be brought up to date within a few days.

[15] The defendant Uloom advises through counsel that “some good faith payments” have been made to Ansaar totalling $2,500 in addition to payments made before the action was commenced in March of 2013. However, the defendants assert that they have not made payments in accord with any agreed plan, nor have they acted or conducted themselves as though a settlement was in place.

position of the parties

[16] The plaintiff submits the following:

(1) There was an offer, acceptance and acknowledgment of a settlement by virtue of the email exchanges of October 7, 2013 and November 12, 2013 between counsel.

(2) The claim was settled by counsel on behalf of the parties with ostensible authority to bind them.

(3) The essential terms of the settlement had been agreed upon and the failure by the defendants to sign the related settlement documentation does not detract from its enforceability.

[17] The position of the defendants is as follows:

(1) The settlement offer was not accepted.

(2) The settlement documentation was in the process of being negotiated, vetted and finalized.

(3) If the alleged settlement is not enforced the plaintiff will still have its rights under the claim.

(4) The alleged email acceptance by counsel for the defendants is at best an acknowledgment of an outline for settlement which requires as a condition for settlement the drafting, negotiating and finalization of settlement documentation.

analysis

[18] The emails exchanged between counsel for both parties on October 7, 2013 and November 12, 2013 demonstrate an agreement to settle all essential terms. The defendants were given credit for two additional payments they claim to have paid.

[19] The email exchanges on those dates do not refer to any qualification on counsel’s authority to negotiate and accept a settlement of the essential terms.

[20] The defendants cannot rely on their default in timely payments to claim that they did not agree to repay in accord with the settlement. They did not dispute the defaults and did not raise any concerns or objections to any of the agreed terms of settlement.

[21] Where a party to an accepted offer fails to comply with the terms of the offer the other party may make a motion for judgment in the terms of the accepted offer and the Court may grant judgment accordingly.

Rule 49.09, Rules of Civil Procedure.

[22] The agreement to settle was complete as of the mails exchanged between counsel on November 12, 2013. The failure to execute other settlement related documents does not relieve either party from complying with the agreed terms of settlement.

Cellular Rental Systems Inc. v. Bell Mobility Cellular Inc., 1995 CarswellOnt 4182 (H.C.J.); Aff’d by OCA, 1995 CarswellOnt 4172.

result

[23] The defendants Madresa Ashraful Uloom (also known as M.A. Uloom) and Yusuf Gulam Panchbhaya (also known as Yusuf Panchbhaya), Ibrahim Bangi, Zia-ud-din Khattak and Idrish Marvia are jointly and severally liable to pay the following to the plaintiff:

(1) Damages in the amount of $60,920 subject to accounting for any sums already paid toward this amount.

(2) Prejudgment and post judgment interest at the rate prescribed in the Courts of Justice Act.

(3) Costs fixed at $9,000 all inclusive.

B. P. O’Marra J.

Released: September 15, 2014

COURT FILE NO.: CV-13-480281

DATE: 20140915

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

ANSAAR FOUNDATION INC.

Plaintiff

– and –

MADRESA ASHRAFUL ULOOM (also known as M.A. ULOOM), YUSUF GULAM PANCHBHAYA (also known as YSUF PANCHBAYA), IBRAHIM BANGI, ZIA-UD-DIN KHATTAK and IDRISH MARVIA

Defendants

RULING

B. P. O’Marra J.

Released: September 15, 2014

COURT FILE NO.: CV-13-480281

DATE: 20140925

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

ANSAAR FOUNDATION INC.

Plaintiff

– and –

MADRESA ASHRAFUL ULOOM (also known as M.A. ULOOM), YUSUF GULAM PANCHBHAYA (also known as YSUF PANCHBAYA), IBRAHIM BANGI, ZIA-UD-DIN KHATTAK and IDRISH MARVIA

Defendants

Nafisah Chowdhury, for the Plaintiff

Sabrina Hussain, for the Defendants

HEARD: June 20, 2014

b. p. o’marra j.

CORRIGENDUM

[24] In my ruling released September 15, 2014, I ordered that the damages, interest and costs were payable by the five named defendants jointly and severally. The parties have now advised that the order should be against the following two defendants only: Madresa Ashraful Uloom (also known as M. A. Uloom) and Yusuf Gulam Panchbhaya (also known as Yusuf Panchbaya).

[25] Paragraph 23 of my ruling should be amended in accord with these changes.

B. P. O’Marra J.

Released: September 25, 2014

COURT FILE NO.: CV-13-480281

DATE: 20140925

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

ANSAAR FOUNDATION INC.

Plaintiff

– and –

MADRESA ASHRAFUL ULOOM (also known as M.A. ULOOM), YUSUF GULAM PANCHBHAYA (also known as YSUF PANCHBAYA), IBRAHIM BANGI, ZIA-UD-DIN KHATTAK and IDRISH MARVIA

Defendants

CORRIGENDUM

B. P. O’Marra J.

Released: September 25, 2014