Wilson v Johnston, 2015 ONSC 3016

COURT FILE NO.: 163-11

DATE: May 11, 2015

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

John Arthur Wilson

Plaintiff

– and –

Robert Bruce Johnston and Sherryn Virginia Johnston

Defendants

Clinton H. Culic, for the Plaintiff

Jonathan M. Richardson, for the Defendants

RULING ON MOTION

ABRAMS, J

Overview

1In this action, the Plaintiff sought a declaration that he is the registered owner of a vacant parcel of land approximately 40 feet in width and 60 feet in length which abuts the Defendants’ property to the southwest. Throughout the litigation, the parcel has either been referred to as the “cattle path” or the “disputed parcel” (hereinafter referred to as the “disputed parcel”). Thus, the litigation relates to the ownership of the disputed parcel, and whether the disputed parcel was conveyed to the Defendants’ predecessors in title by the Plaintiff’s predecessor in title, or if ownership of the disputed parcel was retained by the Plaintiff’s predecessor in title.

2Following more than three years of litigation and on the eve of a two week trial, the parties attended a pre-trial conference before Scott J on August 15, 2014, to see whether the matter could be settled.

3During the pre-trial conference, a proposal was made by Scott J regarding a potential resolution. The Plaintiff offered to settle the action based on the terms of Scott J’s proposal.

4The Defendants essentially accepted the terms of the proposal put forward by the Plaintiff in a formal offer to settle. However, the Defendants made a counter-offer requesting one change, that being the granting of a portion of the disputed parcel of land to the Defendants.

5The Plaintiff accepted the counter-offer and thus an agreement was crystalized.

6The Defendants then asked for a further change to the terms of the agreement. The Plaintiff did not agree to the additional change.

7As a result, the Defendants proceeded to settle the action on the terms of their accepted counter-offer by participating in, executing and filing comprehensive Minutes of Settlement, which were signed by all the parties, their counsel and Scott J.

8The Plaintiff contends that the agreement is valid and binding upon the parties and that it would not be in the interests of justice for the court to set it aside.

9The Defendants admit that a legally binding agreement was created, the terms of which are accurately reflected in the Minutes of Settlement and Schedule “A” appended thereto. However, the Defendants contend that the agreement should not be enforced. Rather, the matter should proceed to trial.

Relief sought

10The Plaintiff brings this motion pursuant to Rule 49.09 of the Rules of Civil Procedure, which provides that where a party to an accepted offer to settle fails to comply with the terms of the offer, the other party may:

(a) Make a motion to a judge for judgment in terms of the accepted, and the judge may grant judgment accordingly; or

(b) Continue the proceeding as if there had been no accepted offer to settle.

Issue

11Where a motion is brought under Rule 49.09, the Court must consider two questions:

(a) Was a legally binding agreement created;

(b) If an agreement has been reached, should it be enforced?

12During oral submissions, counsel for the Defendants conceded, for the first time, that a legally binding agreement was created, which is accurately reflected in the Minutes of Settlement and Schedule “A” appended thereto.

13Thus, the issue to be determined on this motion is: should the agreement be enforced?

Evidence

14For the purpose of the proceeding, the Plaintiff and the Defendants each retained a surveyor to act as an expert witness. The Plaintiff retained Jeff Shipman, and the Defendants retained Brent Collett.¹

15The surveys prepared by both experts show that the Defendants are currently occupying a significant portion of the Plaintiff’s land adjacent to the southern boundary of the Defendants’ property. This fact formed the basis for the offer to settle made by the Plaintiff – being that the Plaintiff would cede the occupied lands in exchange for a quitclaim by the Defendants against the disputed parcel.²

16For the purpose of furthering settlement discussions, the Plaintiff accepted the accuracy of the Defendants’ survey prepared by Mr. Collett and made reference to that plan.³

17Attending the settlement conference were the Plaintiff and his wife, Mr. Kelford as counsel for the Plaintiff, the Defendants, and Mr. Boire as counsel for the Defendants.⁴

18Scott J initially met with counsel, in chambers.

19Following his meeting with counsel, Scott J met with the Defendants and Mr. Boire privately in chambers. He then met with the Plaintiff, his wife and Mr. Kelford in chambers.⁵

20Thereafter, settlement discussions and negotiations took place in the courtroom, in the presence of both counsel, the parties, and Scott J, who initiated the discussions by advising the parties that they all appeared to be in agreement to settle the matter.⁶

21The settlement proposal, as originally suggested by Scott J, involved the following:

(a) The Plaintiff would agree to transfer a parcel of land at the southern boundary of the Defendants’ lot to the Defendants (the “southern parcel”);

(b) The Defendants would agree to release any claim against the disputed parcel;

(c) The costs of surveying and implementing the settlement would be shared equally by both parties; and

(d) Each side would bear its own costs.

22Each side indicated its agreement to settle on the terms presented by Scott J, and thus counsel began drafting Minutes of Settlement to confirm the terms of settlement.⁷

23Throughout the drafting process, counsel were seated together at the counsel table in the courtroom, with Mr. Boire seated to the left and Mr. Kelford seated to the right, facing the judge’s dais. The parties stood or sat behind and to the side of their respective counsel.⁸

24Mr. Kelford took primary carriage of drafting the handwritten Minutes of Settlement and Schedule “A”. Schedule “A” consists of a large survey plan prepared by the Defendants’ surveyor, Mr. Brent Collette, with the boundaries and markers of the two parcels to be exchanged drawn in by Mr. Kelford, in consultation with Mr. Boire.⁹

25While the Minutes of Settlement and Schedule “A” were being drafted, Scott J was intermittently present in the courtroom. As well, a court reporter and clerk were present.¹⁰

26It is the recollection of Plaintiff’s counsel that Mrs. Johnston came up and leaned over the table on at least two occasions during the drafting process, in order to make demands regarding the placement of various points that Mr. Kelford was drawing on Schedule “A”.¹¹

27On the first occasion, Mrs. Johnston asserted that the boundary of the Disputed Parcel be redrawn to convey a portion of that parcel to the Defendants, in addition to the Southern Parcel that the Defendants were to receive.¹²

28The Plaintiff did not initially accede to Mrs. Johnston’s request, but he eventually made the concession in order to conclude the settlement. There is no quarrel that this concession by the Plaintiff is reflected in the Minutes of Settlement and on Schedule “A”.¹³

29The second time Mrs. Johnston leaned over the table during the drafting process, it was to assert that she did not agree with Mr. Kelford’s drawing of the Southern Parcel and contended that more land be included.¹⁴

30When Mrs. Johnston made her second request, both Mr. Kelford and the Plaintiff protested that this was not what the Plaintiff had agreed to. Scott J immediately intervened and, after hearing the judge’s opinion, Mrs. Johnston moved away from the table and did not pursue the issue further.¹⁵

31It is the recollection of the Plaintiff that, during at least one of these interventions, Mrs. Johnston pounded on the table with her right index finger in order to emphasize her point.¹⁶

32It is the recollection of the Plaintiff’s wife that when Mrs. Johnston came to the counsel table, she imposed herself forcefully in Mr. Kelford’s space, without actually making physical contact with him, in order to indicate where she wanted the boundaries drawn on Schedule “A”.¹⁷

33Mrs. Johnston now alleges that Mr. Kelford intentionally contacted her hand during this exchange for the purpose of causing her pain and intimidating her. However, none of the parties, lawyers, judge or court staff present ever raised the issue of any physical contact having occurred between Mr. Kelford and Mrs. Johnston during the Settlement Conference. Mr. Kelford acknowledges that it is possible, given the proximity, that the two might have had incidental or accidental contact; however, he has no recollection of having any physical contact whatsoever with Mrs. Johnston.¹⁸

34Once completed, the Minutes of Settlement consisted of three handwritten pages and Schedule “A”. Both documents were reviewed and signed by the Plaintiff and Mr. Kelford before being passed to Mr. Boire, who reviewed them with the Defendants. The Defendants and Mr. Boire then signed the documents. Scott J also initialled both the Minutes of Settlement and Schedule “A”.¹⁹

35The Court was called to order and Scott J congratulated the parties and counsel on reaching a resolution. Brief presentations were made by both counsel with respect to the timeline necessary to implement the settlement, and Scott J endorsed the record as follows: “Final order to go pursuant to the Minutes of Settlement filed today. M of S to be implemented within 90 days. Aside from disbursements set out in the M of S, no order as to costs.”²⁰

36The parties left the courthouse having apparently concluded a full and final settlement and thereby avoiding a two-week trial.

Plaintiff’s Attempts to Enforce the Settlement

37Following the Settlement Conference on August 15, 2014, Mr. Kelford obtained a copy of the Minutes of Settlement and Scott J’s endorsement from the Perth court.²¹

38On August 21, 2014, Mr. Kelford sent a letter to Mr. Boire advising that he was forwarding the Minutes of Settlement and Schedule “A” along with the endorsement of Scott J to Mr. Boire via e-mail. He enclosed a draft Final Order, incorporating the terms of settlement, for Mr. Boire’s approval, along with a Consent and Mutual Release.²²

39On August 25, 2014, Mr. Kelford received an email from Mr. Boire stating “I will have my clients in to review the release, but before I consent to the Draft Order, I think we need the Schedule “A” attached before we get it entered with the court.” Mr. Kelford replied that he had drafted the Order to cross reference the Minutes and Schedule, but he had no issue with the Schedule being attached to the Order and left it to Mr. Boire to arrange same with the Perth court. It was Mr. Kelford’s expectation that the Schedule could not be attached to the Order because of its size.²³

40On September 5^th, 2014, Mr. Kelford faxed a letter to Mr. Boire requesting that he forward the Final Order and Consent, or if he wanted to have Schedule “A” attached to the Order as he previously mentioned, to discuss that directly with the Clerk at the Perth court. If that was the case, he requested that Mr. Boire forward an amended form of Order to him for approval. The same request was made again via letter on September 17, 2014 and September 29, 2014.²⁴

41In his letters, Mr. Kelford reminded Mr. Boire of the 90-day timeline for implementing the settlement and confirmed that he had met with the Defendant’s surveyor, Brent Collett to provide him with the necessary information to complete the survey work and implement the settlement. He requested that Mr. Boire’s clients remove their property from the disputed parcel so as not to interfere with the survey process.²⁵

42Seven weeks after the Settlement Conference, the Order had not been approved and Mr. Boire had not advised how he would like the draft Order amended. However, there had been no indication that the Defendants’ were disputing the settlement.²⁶

Defendants’ First Indication of Resiling from the Settlement

43On October 2, 2014, in his first communication since August 25, 2014, Mr. Boire advised Mr. Kelford via letter that his clients “concluded the settlement on the belief that they would be getting 40 feet of land south of their shed…” and would not approve the draft Order unless this change was incorporated. The trial dates originally set had long since passed, and this was the first indication from the Defendants that they were not in agreement with the terms of settlement.²⁷

44Neither Mr. Kelford nor the Plaintiff recalled any discussion during the Settlement Conference of an additional 40 feet of land starting from the Defendant’s shed, and the Plaintiff advised Mr. Kelford that he would not have settled, nor would he now consider settlement, based on a grant of 40 feet starting at the Defendants’ shed. This would put the new boundary of their property well inside his hay field.²⁸

45Mr. Kelford advised Mr. Boire via email and fax on October 4, 2014, that it would be necessary to set an appointment with Scott J to settle the order. He requested this appointment via letter to the judge dated October 7, 2014 and an appointment was set for October 27, 2014.²⁹

46Notably, on October 8, 2014, Mr. Boire sent an email to Mr. Kelford advising that the only “issue” with the draft Final Order which Mr. Kelford had prepared was the form of Schedule “A” and that his clients would approve the “complete” draft order with Schedule “A” attached once a copy was provided and would also remove their belongings from the Cattle Path. He went on to advise, however, that their approval was “made in protest” and was “not an admission of the true terms of settlement”.³⁰

47The same day, Mr. Kelford responded to Mr. Boire’s email seeking: 1) Clarification as to whether Mr. Boire continued to act as counsel (he had advised on October 6, 2014 that he was not, but continued to correspond on behalf of the Defendants); 2) A draft Final Order in a form acceptable to the Defendants for Mr. Kelford’s approval as to form and content; and 3) Two originally signed copies of a Mutual Release including a statement that the Defendants would remove any chattels from the disputed parcel within ten days.³¹

48Notably, on October 9, 2014, Mr. Boire advised Mr. Kelford via email that he would accept the attachment of Schedule “A” to the Final Order on “regular sized paper” and requested that a copy of the draft Order be provided to him again. At this point, it appeared, once again, that the matter had been settled and that a Final Order would be approved.³²

Defendant’s First Allegations of “Duress”

49Mr. Kelford decided not to cancel the appointment with Scott J until the approved Final Order was received. On October 22, 2014, rather than an approved Order, he received a copy of a letter penned by Mrs. Johnston, which Mr. Boire had forwarded to Scott J. In the letter, Mrs. Johnston alleged the following:

a. That Mr. Kelford did not provide a copy of the Minutes of Settlement and Schedule “A” to Mr. Boire until October 9, 2014;

b. That Mr. Kelford “has and continues to manipulate and threaten us during this ordeal and his aggressive bully-type behaviour is concerning”;

c. That she was in a vulnerable state of mind during the Settlement Conference due to the length of the Settlement Conference and the fact that she is diabetic;

d. That Mr. Kelford, during the course of the Settlement Conference, struck her right had away striking her broken finger, not once but twice causing intense pain;

e. That Mr. Kelford’s “intimidating, aggressive, and inappropriate behaviour in the courtroom” was unacceptable and that she felt threatened by him and this resulted in her being required to seek refuge in the back of the room to deal with the pain;

f. That Mr. Kelford aggressively took control of the drafting process and blocked the Defendants and their lawyer from reviewing the Minutes of Settlement; and

g. That Mr. Kelford was aggressive, offensive, unprofessional, and disrespectful to the judge and to the Defendants during the Settlement Conference.³³

50At the appointment on October 27, 2014, having reviewed the unsworn allegations and Mr. Kelford’s responding affidavit, Scott J determined that the matter would need to be settled by another judge, as he had acted in the role of a mediator during the Settlement Conference.

51Mr. Kelford was shocked by the allegations of Mrs. Johnston and vehemently disputed her assertions, in particular the allegation that he struck her or that he was aggressive, offensive, unprofessional, or disrespectful towards the Court or the parties.³⁴

52Mrs. Johnston believes that court staff and the judge were present at the time she was allegedly struck. However, the court reporter, Mr. John Walker, and the court clerk, Ms. Colleen Byrne, both reviewed the letter containing the allegations against Mr. Kelford. Both have sworn affidavits advising that they did not observe any of the alleged behaviours on the part of Mr. Kelford and in particular they did not see Mr. Kelford strike anyone during the Settlement Conference.³⁵

53Neither the Plaintiff nor his wife saw Mr. Kelford act in the manner alleged by Mrs. Johnston, nor did they see Mr. Kelford strike Mrs. Johnston at any time.³⁶

54Moreover, Mr. Johnston advises that he did not witness Mr. Kelford strike his wife during the Settlement Conference and he was not aware that she was upset until afterwards.³⁷

55The only person other than Mrs. Johnston who alleges that he witnessed Mr. Kelford having any physical contact with her is Mr. Boire. Mr. Boire alleges that Mr. Kelford “swatted” Mrs. Johnston’s hand once, whereas Mrs. Johnston alleges two strikes in short succession. However, Mr. Boire is not able to explain how he could have witnessed a different number of alleged “swats” given that he was seated directly beside Mr. Kelford throughout the drafting process.³⁸

56Although Mr. Boire apparently saw his client being “swatted” by Mr. Kelford, he did not notice that she was particularly upset by it, and he did not mention it at any point during the Settlement Conference. Curiously, he made no mention of duress in any of his correspondence with Mr. Kelford following the Settlement Conference, and when counsel appeared before Mr. Justice Scott on October 22, 2014, he made no mention of the alleged “swat”.³⁹

57Mrs. Johnston alleges that she was precluded from participating in any negotiations during the Settlement Conference due to the fact that she was struck by Mr. Kelford: “I was not involved in any of this. It had just started, I tried to show where we wanted things to start from, he struck me, I left, and that was it.”⁴⁰

58However, this account differs markedly from the accounts of the Plaintiff and Mr. Kelford, described at paragraphs 29 to 34, above, and is contradicted by the fact that a concession demanded by Mrs. Johnston with respect to the Disputed Parcel was, in fact, included in the final Minutes of Settlement.

Contradictions of the Defendants (Cross-Examination of December 19, 2014)

Complaints Against Surveyors

59When Mr. Kelford met with the Defendants’ surveyor, Mr. Brent Collett, early in the week of September 15, 2014, he was advised that the Defendants’ had lodged complaints about both Mr. Collett and Mr. Shipman, the Plaintiff’s surveyor, with the Association of Ontario Land Surveyors.⁴¹

60This fact was confirmed by the Defendants during their examinations on December 19, 2014. Specifically, Mrs. Johnston advised that the complaints were made because the southern boundary of their property was “wrong” on both surveys, in that it did not start where she thought it should start (i.e. at the shed).⁴²

61This assertion contradicts the Defendants’ complaint that they were unable to discern the terms of settlement until sometime in October due to the fact that Mr. Kelford had allegedly not provided a copy of the Minutes of Settlement and Schedule “A” to Mr. Boire. The Defendants’ complaints against the surveyors appear to have been summarily dismissed.⁴³

Two-Car Garage Condition

62It emerged during the Defendants’ examination on December 19, 2014, that after the Settlement Conference, they went to the township and determined how much land they would need in order to build a two-car garage at the back of their property. Apparently, they had not received enough land in the settlement to allow for this.⁴⁴

63In their affidavits and at the examination on December 19, 2014, the Defendants now maintain that having enough land to build a two-car garage was a condition of any settlement they would agree to and that they had made Scott J aware of this fact at the Settlement Conference. They also confirmed, however, that they had not discussed this condition of settlement with their lawyer at any time prior to the Settlement Conference.⁴⁵

64The Defendants and Mr. Boire are in agreement that the Plaintiff was not made aware at any point during the Settlement Conference that the Defendants’ ability to construct a two-car garage was at issue.⁴⁶

65Furthermore, Mr. Boire did not recall that the ability to construct a two-car garage was a condition of settlement for the Defendants at the time of the Settlement Conference.⁴⁷

66Both Defendants now maintain that they had no idea that signing the Minutes of Settlement and Schedule “A” would bind them to a full and final settlement of the action. Both advised during their examinations on December 19, 2014, that they did not take the time to read the Minutes of Settlement or to inspect Schedule “A” because they thought they could change it later. However, they admit that they were not advised by anyone that the settlement would be anything other than final.⁴⁸

67The Defendants’ counsel, Mr. Boire, maintained during his examination that he believed that his clients knew that the settlement would be final and binding. Specifically, he advised them as follows:

174. Q. Did you make them aware before they signed that it was a final settlement, that this was the end of it, it was complete and it was final?

A. Expressly in those words?

175. Q. In any words you wish, in any words at all, did you convey to them that this was not something that was preliminary, this was not something that was interim, this was not something that you could have a do over on, that there was no cooling off period, however you want to express it, did you make it clear to them that this would be the end of it, this would finish the case?

A. I recall saying either you accept or you don’t accept.

176. Q. That’s what you said, that’s your recollection?

A. I recall saying that with regard to disputing the boundaries, either you accept or you don’t accept. If you don’t accept that’s fine, but if you accept this is what it’s going to be. (emphasis added)⁴⁹

68While the Defendants now maintain that the first time they were aware that the settlement was final was in the parking lot after the Settlement Conference, this was not their lawyer’s impression. Mr. Boire advised that he had no indication from his clients prior to them signing the Minutes of Settlement that they were not in full agreement with the settlement. Furthermore, although he was aware that Mrs. Johnston was upset when he spoke to his clients afterwards in the parking lot, he was not left with the impression that they had only just learned that the settlement was final.⁵⁰

69Mrs. Johnston acknowledged in her examination that it was not up to the Plaintiff or the Plaintiff’s lawyer to protect her interests. In her words, with respect to protecting her own interests, she admitted, “I let myself down”.⁵¹

70Mr. Johnston advised during his examination that it was not the fault of his lawyer, the Plaintiff, the Plaintiff’s counsel, or the judge that the Defendants signed a full and final settlement without taking the time to read the terms of the settlement. In his words, he admitted:

A. I don’t blame anybody. I should have been more, I don’t know, active or whatever, know the law more.

116. Q. So as far as you’re concerned you take personal responsibility for the fact that you didn’t read the Minutes of Settlement, you didn’t read the Schedule A, and you didn’t know that they were full and final?

A. Yes.⁵²

Law

71The parties agree that a legally binding agreement was created. Thus, the next question to consider is whether the agreement should be enforced? As noted by Madam Justice Himel in Sentry Metrics Inc. v. Ernewein, there are certain circumstances where the court must exercise its discretion not to enforce a settlement which include:

(16) ….a settlement that it considers to be unreasonable, that would result in an injustice or where there is good reason not to enforce it: see Streams Corp. v. Merrill Lynch Canada Inc…. When deciding to exercise its discretion to enforce an accepted offer, the court is required to take a broad approach and consider all of the evidence. In Olivieri v. Sherman, the court held that the failure to consider manifestly important factors such as one party’s repudiation of the claim and the prejudice it would suffer if the enforcement were ordered, was held to be an error.

(17) Another example of circumstances where the court exercised its discretion to not enforce a binding agreement was discussed in Milios v. Zagas, where the court found that the plaintiff’s counsel had received instructions to settle based on a mistake. The court considered certain factors in exercising its discretion not to enforce a settlement including that: no order had been taken out, the prejudice to the plaintiff outweighed the prejudice to the defendant and no third parties would be affected.⁵³

72Thus, although a legally binding agreement was created, the court still has the discretion to enforce the agreement or to refuse to enforce the agreement. Circumstances where the court might exercise its discretion not to enforce a settlement include:

(a) where it considers the settlement to be unreasonable;

(b) where the settlement would result in an injustice; or

(c) where there is another good reason not to enforce the settlement.

73In considering whether to exercise its discretion to enforce a settlement, the court is required to take a broad approach and consider all of the evidence, including factors such as the prejudice to either party of enforcing the settlement or not enforcing the settlement.

74Under the rules applicable to this motion (Rules 49.09 and 20 of the Rules of Civil Procedure), the court may weigh the evidence, evaluate the credibility of the deponents, and draw any reasonable inferences from the evidence.

Positions of the Parties

75The Plaintiff contends that the agreement should be enforced. The settlement resulted from the recommendation of an informed and experienced judge of the Superior Court of Justice. It was a perfectly reasonable settlement, and its enforcement would not result in an injustice. The Plaintiff’s title to a tract of land already deeded to him would be confirmed. In exchange, the Plaintiff would abandon his claims for damages against the Defendants for trespass and interference with the enjoyment of his property, and the Defendants would receive a tract of land that had not even been claimed in this action. Most importantly, both sides would avoid the significant costs and risks associated with a two week trial over a small tract of land.

76The Defendants contend that the agreement should not be enforced. Firstly, the Defendants assert that Mrs. Johnston was under duress at the time she signed the Minutes of Settlement. Secondly, both Defendants admit that they did not inform themselves with respect to the issues by performing the basic due diligence of reading the Minutes of Settlement or asking clarifying questions of their counsel. Thus, the Defendants assert that they were mistaken with respect to the amount of land they would receive and with respect to the Minutes of Settlement being final and binding. Thirdly, the Defendants contend that there would be no prejudice if the settlement was set aside, the Plaintiff could still seek the disputed parcel of land in court, at trial.

Analysis

77While admittedly the litigation process and negotiations surrounding litigation are stressful events for those involved, this does not equate to duress rendering an individual incapable of making decisions. I find as a fact that Mrs. Johnston participated assertively and ably in the negotiations which resulted in the binding agreement. Indeed, I find as a fact that it was Mrs. Johnston who asserted that the boundary of the disputed parcel be redrawn to convey a portion of that parcel to the Defendants, in addition to the southern parcel that the Defendants were to receive. I find as a fact that the Plaintiff did not initially accede to Mrs. Johnston’s request, but that he eventually made the concession in order to conclude the settlement. It was this concession by the Plaintiff that is reflected in the Minutes of Settlement and on Schedule “A”. Thereafter, Mrs. Johnston returned to counsel table and insisted that more land be included in the Defendants’ parcel of land. In effect, Mrs. Johnston returned for a “second bite out of the apple”, after the negotiations had been concluded, which the Plaintiff would not agree with. The evidence does not support the contention that Mrs. Johnston was under duress at the time she signed the Minutes of Settlement. Rather, the evidence supports the finding that Mrs. Johnston was not entirely satisfied with what she was able to extract from the Plaintiff during the settlement discussions, but that is not unusual in any type of negotiation. In any event, dissatisfaction does not amount to duress.

78I reject the contention that Mr. Kelford made contact with Mrs. Johnston in any way that could be construed as an assault, or anything close to it. I accept Mr. Kelford’s evidence that given the proximity between the two, when Mrs. Johnston was pointing to the survey plan and while Mr. Kelford was working on the Minutes of Settlement at the counsel table, there may have been incidental or accidental contact, but nothing more. Notably, Mr. Kelford was not alone with Mrs. Johnston at any time. Mrs. Johnston believed that the court staff and the judge were present at the time she was allegedly struck. However, the court reporter and court clerk both swore affidavits advising that they did not observe any of the alleged behaviours on the part of Mr. Kelford. Most importantly, they did not see Mr. Kelford strike anyone during the settlement conference. Further, Mr. Johnston did not witness Mr. Kelford allegedly strike his wife, and he did not notice that his wife was upset until after the settlement conference was over. The only person other than Mrs. Johnston who alleges having witnessed any contact between her and Mr. Kelford is Mr. Boire. However, he was not able to explain the difference in their recollections of events (i.e. two hits versus one “swat”). Morever, Mr. Boire made no mention at any point during or after the settlement conference, including at an appointment with Scott J on October 27, 2014, of ever having witnessed his client being “swatted” by Mr. Kelford, or anything close to it. If Mr. Boire had witnessed any sort of swatting or striking between Mr. Kelford and Mr. Boire’s client, arguably he was duty bound to terminate the negotiations immediately and to report the assault to the appropriate authorities. Mr. Boire did neither and, thus, the ex post facto allegation made many weeks later in the context of his client’s attempting to resile from the agreement makes the claim highly suspicious. For these reasons, I reject both Mrs. Johnston’s evidence and Mr. Boire’s evidence, on this point.

79I accept Mr. Boire’s evidence that the Defendants were informed that the agreement reached on August 15, 2014 was a full and final settlement of all issues. I reject the evidence that it was not until sometime in October, 2014, that the Defendants became aware that the agreement was a full and final settlement. This contention does not square with the evidence that by mid-September, 2014, the Defendants had lodged complaints against their own surveyor with the Association of Ontario Land Surveyors, because they felt that the southern boundary of their property was incorrectly located on both survey plans. Moreover, I find as a fact that the building of a two car garage was never raised with their counsel, with opposing counsel or with the Plaintiff during the settlement conference. I find as a fact that the first time that this issue was raised was several weeks after the settlement conference, when the Defendants had attended at the Township and were informed that they would need more land to build a garage. I find as a fact that it was at that time that the Defendants experienced “buyer’s remorse”, so to speak, and determined that they would take steps to resile from the agreement.

80In any event, I find as a fact that throughout the entire proceeding, including the settlement conference in question, the Defendants were represented by independent and experienced counsel.

81I find as a fact that there was no limitation on Mr. Boire’s authority to negotiate on behalf of the Defendants and enter into the agreement. Further, and in any event, I find as a fact that no such limitation was ever communicated by Mr. Boire at any time, prior to, during, or following the settlement conference.

82I find as a fact that the Plaintiff negotiated in good faith throughout the process and made concessions in favour of the Defendants right up until the Minutes of Settlement were signed.

83I find as a fact that the Plaintiff has already been put to considerable expense to defend a rather small (but important) tract of land, and it would be prejudicial to the Plaintiff if the matter was to be reopened. To that end, the Plaintiff would be required to retain the legal expert and the surveyor that he had intended to call as expert witnesses. However, with respect to the surveyor, this may not be possible, given that the Defendants have now made a complaint about him to his professional body. In the circumstances, the Plaintiff would be put to the added time and expense of retaining a new surveyor. Further, I find as a fact that one of the Plaintiff’s key witnesses is over 80 years of age, and the several months of delay in reaching trial could mean the difference between this individual being unable to testify due to infirmity or otherwise. Additionally, I find as a fact that the Plaintiff would be required to retain a new lawyer, as the manner in which the Defendants have attacked the settlement would make it impossible for Mr. Kelford to continue in his role as counsel of record.

Conclusions

84Having taken a broad approach and considering all the evidence, I conclude as follows:

(a) The settlement is not unreasonable. Rather, the settlement is reasonable, particularly given that the Defendants were able to extract from the Plaintiff additional lands that were never claimed in the litigation and that were never contemplated by Scott J in his proposal that lead to the offer and acceptance, which resulted in the legally binding agreement;

(b) The settlement would not result in an injustice, although it may result in some inconvenience to the Defendants in terms of whether or not they build a garage and where the garage might be positioned on their property. That said, the evidence is unequivocal and uncontroverted that the Defendants never raised this issue with their counsel or the other party at the material time of the negotiations resulting in the legally binding agreement. The garage issue only came to light after the Defendants attended at the office of the local municipality, following which they initiated their efforts to resile from the agreement;

(c) For the reasons set out above, the prejudice to the Plaintiff in setting aside the settlement is real and significant; and

(d) There is no good reason not to enforce the settlement. Mrs. Johnston’s claim of duress is not supported by the evidence that I accept. Further, the Defendants’ claim that they were mistaken as to the finality of the agreement is not supported by the evidence that I accept, most notably the evidence from their own counsel. To that end, I accept that no limitations were placed on Mr. Boire’s authority to negotiate on behalf of the Defendants and enter into the agreement. Moreover, I reject the Defendants’ contention that any instructions provided to Mr. Boire were based on a mistake regarding the failure to include the additional land that they say is necessary to build a garage.

85A final order shall issue based on the Minutes of Settlement executed by the parties on August 15, 2014, inclusive of Schedule “A” appended thereto, incorporating same into a final judgment.

86The Defendants shall remove any vehicles or chattels from the disputed parcel being quitclaimed to the Plaintiff under the terms of the Minutes of Settlement, inclusive of Schedule “A”, within seven days, failing which the Plaintiff may have them removed at the Defendants’ cost.

87If the issue of costs cannot be resolved between the parties, submissions of no longer than two pages, double spaced, may be submitted within thirty days.

The Honourable Mr. Justice Brian Abrams

Released: May 11, 2015

CITATION: Wilson v Johnston, 2015 ONSC 3016

COURT FILE NO.: 163-11

DATE: May 11, 2015

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

John Arthur Wilson

Plaintiff

– and –

Robert Bruce Johnston and Sherryn Virginia Johnston

Defendants

RULING ON MOTION

Abrams, J.

Released: May 11, 2015

Cross-Examination of Robert Johnston, December 19, 2014 at 121-134

Cross-Examination of Sherryn Johnston, December 19, 2014 at 119-123

Cross-Examination of Arthur Wilson, December 19, 2014 at 62 - 66

Cross-Examination of Shane Kelford, December 19, 2014 at 43-47

Cross-Examination of Arthur Wilson, December 19, 2014 at 63

Cross-Examination of Arthur Wilson, December 19, 2014 at 43

Affidavit of John Walker, December 10, 2014

Affidavit of Colleen Byrne, December 11, 2014

Cross-Examination of Robert Johnston, December 19, 2014 at 166-168

Cross-Examination of Robert Johnston, December 19, 2014 at 15-27

Cross-Examination of Robert Johnston, December 19, 2014 at 23-34

Cross-Examination of Marcus Boire, December 19, 2014 at 104-109

Cross-Examination of Robert Johnston, December 19, 2014 at 107-120

Cross-Examination of Robert Johnston, December 19, 2014 at 120

Cross-Examination of Marcus Boire, December 19, 2014 at 219-226

Footnotes

1. 1Affidavit of Shane Kelford, December 9, 2014 at para. 40
2. 2Cross-examination of Sherryn Johnston, December 19, 2014 at 43-74 and 372-373 Cross-examination of Shane Kelford, December 19, 2014 at 10-18
3. 3Cross-examination of Shane Kelford, December 19, 2014 at 16
4. 4Affidavit of Shane Kelford, December 9, 2014 at para. 14-15
5. 5Affidavit of Shane Kelford, December 9, 2014 at para. 18
6. 6Affidavit of Shane Kelford, December 9, 2014 at para. 19
7. 7Affidavit of Shane Kelford, December 9, 2014 at para. 22
8. 8Cross-Examination of Sherryn Johnston, December 19, 2014 at 126-148
9. 9Affidavit of Shane Kelford, December 9, 2014 at para. 25
10. 10Affidavit of Shane Kelford, December 9, 2014 at paras 24 and 28
11. 11Affidavit of Shane Kelford, December 9, 2014 at para. 29
12. 12Affidavit of Shane Kelford, December 9, 2014 at para. 29
13. 13Cross-Examination of Shane Kelford, December 19, 2014 at 41-42
14. 14Affidavit of Shane Kelford, December 9, 2014 at para. 29
15. 15Cross-Examination of Shane Kelford, December 19, 2014 at 52-53
16. 16Affidavit of Arthur Wilson, December 3, 2014 at para. 30
17. 17Cross-Examination of Carmen Wilson, December 19, 2014 at 63-66
18. 18Affidavit of Shane Kelford, December 9, 2014 at para 73
19. 19Affidavit of Shane Kelford, December 9, 2014 at paras 30-31 and 81
20. 20Affidavit of Shane Kelford, December 9, 2014 at paras 32-33
21. 21Affidavit of Shane Kelford, December 9, 2014 at para. 34
22. 22Affidavit of Shane Kelford, December 9, 2014 at paras 35-36
23. 23Affidavit of Shane Kelford, December 9, 2014 at paras 37-38
24. 24Affidavit of Shane Kelford, December 9, 2014 at paras 38-41
25. 25Affidavit of Shane Kelford, December 9, 2014 at paras 39-41
26. 26Affidavit of Shane Kelford, December 9, 2014 at para. 43
27. 27Affidavit of Shane Kelford, December 9, 2014 at para. 43
28. 28Affidavit of Shane Kelford, December 9, 2014 at para. 43
29. 29Affidavit of Shane Kelford, December 9, 2014 at para. 44
30. 30Affidavit of Shane Kelford, December 9, 2014 at para. 48
31. 31Affidavit of Shane Kelford, December 9, 2014 at para. 49
32. 32Affidavit of Shane Kelford, December 9, 2014 at para. 50-51
33. 33Affidavit of Shane Kelford, December 9, 2014 at paras 52-54
34. 34Affidavit of Shane Kelford, December 9, 2014 at paras 55-89
35. 35Cross-Examination of Sherryn Johnston, December 19, 2014 at 172-173 and 186-189
36. 36Affidavit of Arthur Wilson, December 3, 2014 at paras 49-63 and Affidavit of Carmen Wilson, December 4, 2-14 at paras 6-16
37. 37Affidavit of Robert Johnston, December 15, 2014 at paras 46-48 and 105-106
38. 38Cross-Examination of Marcus Boire, December 19, 2014 at 282-296
39. 39Cross-Examination of Marcus Boire, December 19, 2014 at 198-200 and 281-285
40. 40Cross-Examination of Sherryn Johnston, December 19, 2014 at para. 300
41. 41Affidavit of Shane Kelford, December 9, 2014 at para. 40
42. 42Cross-Examination of Sherryn Johnston, December 19, 2014 at 43-74 and 372-373
43. 43Cross-Examination of Sherryn Johnston, December 19, 2014 at 386-389
44. 44Cross-Examination of Sherryn Johnston, December 19, 2014 at 319-326
45. 45Cross-Examination of Sherryn Johnston, December 19-2014 at 20-36
46. 46Cross-Examination of Sherryn Johnston, December 19, 2014 at 115-201
47. 47Cross-Examination of Marcus Boire, December 19, 2014 at 104-109
48. 48Cross-Examination of Sherryn Johnston, December 19, 2014 at 282-285 and 317-318
49. 49Cross-Examination of Marcus Boire, December 19, 2014 at 169-176
50. 50Cross-Examination of Sherryn Johnston, December 19, 2014 at 335-336 and 342-344
51. 51Cross-Examination of Sherryn Johnston, December 19, 2014 at 240-246
52. 52Cross-Examination of Robert Johnston, December 19, 2014 at 115-116 and 146-151
53. 53Sentry Metrics Inc. v. Ernewein, (2013) ONSC 959 at paras. 16-17 citing Capital Gains Income Streams Corp. et al v. Merrill Lynch Canada Inc. (2007), 2007 39604 (ON SCDC), 87 O.R. (3d) 464 (DIV. CT.) at para 14, Olivieri v. Sherman (2007), 2007 ONCA 491, 86 O.R. (3d) 778 (C.A.) at para 45 and Milios v. Zagas (1998), 1998 7119 (ON CA), 38 O.R. (3d) 218 (C.A) at paras 20-21