NEWMARKET COURT FILE NO.: CV-13-116868-00
DATE: 20150730
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ROBERT CUSHNAGHAN
Plaintiff/Moving Party
– and –
YING KWAN
Defendant/Responding Party
C. Losell, for the Plaintiff/Moving Party
R. Quance, for the Defendant/Responding Party
HEARD: July 24, 2015
HEALEY J.
[1] This action arises out of transactions between the parties in relation to the sale of a marina property.
[2] This is a motion for summary judgment brought by the plaintiff for:
A declaration that minutes of settlement signed between the parties dated October 17, 2013 (the “Minutes of Settlement”) are a binding and enforceable settlement;
A declaration that the plaintiff is only required to account to the defendant with respect to his possession of the property and operation of the marina for the period March 31, 2014 to October 15, 2014 in accordance with the terms of the Minutes of Settlement, and an order that he has provided such accounting;
An order that the defendant pay to the plaintiff by way of specific performance the sum of $500,000 owing in accordance with the Minutes of Settlement;
An order that the defendant provide the release as required in accordance with the terms of the Minutes of Settlement;
Pre-judgment interest calculated under the Courts of Justice Act, R.S.O. 1990, c. C.43, from October 31, 2013; and
Costs.
[3] It was conceded by the defendant that the plaintiff is entitled to the first two orders mentioned above, and accordingly the focus of the motion is whether the plaintiff is entitled to specific performance of the terms of the Minutes of Settlement, or whether the defendant’s claims for set-off and damages precludes such relief.
Nature of the Action
[4] The plaintiff’s claim is for, inter alia, a declaration that the Minutes of Settlement are binding, and specific performance in relation thereto. In her statement of defence and counterclaim, the defendant claims a legal and equitable set-off with respect to monies owing from the plaintiff to her by reason of his continued possession of the lands and premises involved in this claim, his continued operation of the marina business, and the plaintiff’s failure to obtain a marina insurance policy to respond to damage to and loss of boat shelters and docks that occurred during the winter of 2014. The defendant states that the cost of replacing the shelters and docks will be in excess of $650,000, and alleges that the plaintiff is liable for such damages.
[5] In her counterclaim the defendant claims for breach of contract in the amount of $800,000, repeating and relying only upon the allegations contained in her statement of defence in support of her counterclaim.
The Issue
[6] The issue to be decided on this motion for summary judgment is whether the defendant has established a set-off or counterclaim that would preclude the granting or enforcement of judgment in favour of the plaintiff for specific performance.
The Facts
[7] The parties are substantially in agreement with the relevant facts. The plaintiff was the owner of a nineteen-acre parcel of land municipally known as 850 Toll Road, Holland Landing (the “Property”), on which he operated the South Simcoe Marina (the “Marina”). The marina operation is a small operation, typically accommodating twenty-five to thirty boats during the season. There is a service shop on the property and a separate office building with a residential apartment above. The plaintiff resided in the residential apartment and personally operated the marina as a sole proprietorship. The marina was a modest operation, inactive in the winter months, and typically did not make a profit.
[8] In 2011 the defendant and her brother, Ying Chen, purchased a one-acre property which physically adjoins the Property. This property was used for a marine store, selling equipment, bait, and tackle, and for boat storage, but did not have any boat slips and was not a marina.
[9] The defendant was born in China where she studied construction at university. After her arrival in Canada in 1987 she worked at a Magna plant in quality control for about seven years, and has renovated and sold four or five homes in the Toronto area. The defendant’s first language is Cantonese.
[10] Although the Property was not listed for sale, the defendant repeatedly approached the plaintiff seeking to purchase the Property. No agents were involved in the sale.
[11] In October, 2012 the parties entered into a verbal agreement, subsequently reduced to writing and dated November 14, 2012, entitled Confidential Purchase and Sale Agreement (the “Confidential Agreement”) with respect to the property. The defendant’s employee, John Choi, was present for most of the negotiations involving the Confidential Agreement. The Confidential Agreement provided for a total consideration for the transaction of $1,700,000, with $1,200,000 payable in accordance with an Agreement of Purchase and Sale to be entered into by the parties, and the balance of $500,000 payable in accordance with the Confidential Agreement. Further, it was a term of the Confidential Agreement that a payment of $150,000 was due on March 31, 2013. Specifically, under the terms of the Confidential Agreement, the defendant was to pay the remaining $500,000 as follows:
a) As a loan at 4% with a five year term;
b) With the payment of $150,000 on March 31, 2013.
[12] In accordance with the Confidential Agreement, the parties entered into an Agreement of Purchase and Sale dated October 25, 2012 with respect to the Property. Under the Agreement of Purchase and Sale the payment of $1,200,000 was as follows:
a) $2,000 deposit;
b) $350,000 on closing subject to adjustments;
c) A vendor take back mortgage of $850,000 at 4% with a five year term;
d) A $500,000 payment of principal on March 31, 2013.
[13] As a result of an amendment to the Agreement of Purchase and Sale, the transaction closing date was moved to January 11, 2013. The closing did occur on that date, with title to the property being transferred to the defendant. She was to take possession on April 30, 2013 under the terms of both the Confidential Agreement and Schedule “B” to the Agreement of Purchase and Sale, with the plaintiff remaining on the Property until that date.
[14] On closing, the defendant gave and the plaintiff took back a vendor take back mortgage for the balance of the purchase price under the Agreement of Purchase and Sale, being $850,000. It was a provision of the mortgage that the sum of $500,000 was due and payable on account of principal on or before March 31, 2013. No interest was payable on the payment, provided that it made on or before March 31, 2013, failing which it was to bear interest at a rate of 8% per annum computed from March 31, 2013 and payable monthly.
[15] The defendant did not make the $500,000 payment of principal due on the mortgage on March 31, 2013.
[16] Following the sale to the defendant, the plaintiff entered into an Agreement of Purchase and Sale to purchase a home in Bradford, Ontario. As a result of the defendant’s failure to make the payments due under the terms of the mortgage and the Confidential Agreement, the plaintiff was unable to close the transaction and is now being sued by the vendors for breach of contract.
[17] As of April 30, 2013, the defendant was not in a position to take possession of the property or to begin to operate the marina. At her request, the plaintiff continued to operate the marina. Although the plaintiff was not prepared to pay the expenses of the marina, run it, or forego the payments due to him, he was unable to reach any agreement with the defendant before she departed to China in early June, 2013. She did not return until August, 2013. Throughout that time the plaintiff continued to live at the property and to operate the marina.
[18] On August 20, 2013 the plaintiff served a Notice of Sale Under Mortgage.
[19] On October 10, 2013 and again on October 17, 2013, the parties and their respective lawyers met and settled all of the issues that had arisen, including payments under the mortgage, an accounting, and payment under the Confidential Agreement. The defendant’s then lawyer, Mr. Oscar Wong, speaks Cantonese and the same dialect as the defendant.
[20] In accordance with this negotiated agreement, the parties were able to enter into Minutes of Settlement on October 17, 2013. As earlier stated, both of the parties now agree that those Minutes are binding and enforceable.
[21] The Minutes of Settlement, both in the recitals and in paragraph 7 therein, confirm that the defendant did not make the $500,000 payment of principal on the mortgage on March 31, 2013, or the $150,000 payment due under the Confidential Agreement on that same date.
[22] The Minutes of Settlement amended the mortgage to allow the defendant more time to pay. The $500,000 payment of principal that was originally due on March 31, 2013, but which remained unpaid, was reduced to a $200,000 payment on principal and was to come due on November 1, 2014. The defendant was still required to make payments under the mortgage, however, those mortgage payments were not made.
[23] The Minutes of Settlement also required the defendant to make a $500,000 payment on October 31, 2013 in full and final payment of all of the principal and interest owing under the Confidential Agreement, and for the plaintiff to provide possession of the property on March 31, 2014, once this payment had been made. The Minutes of Settlement contained the following terms with respect to the parties’ intentions to settle all outstanding matters between them:
The Parties agree that, save for the provisions of this settlement and the Mortgage as amended by this settlement, this settlement is intended to be a full and final settlement of all the issues that the Parties now have or can or may have and, without limiting the generality of the foregoing, with respect to, arising from or relating to the purchase of the Property, the Confidential Purchase Agreement, the agreement P & S, and the sale or operation of South Simcoe Marina and the Parties agree to execute and exchange the mutual full and final release in the form attached hereto as Schedule “B” upon payment of the Settlement Funds.
These Minutes of Settlement contain no representations or warranties of any nature or kind, save as set out herein and form the entire agreement between the Parties. There are no separate representations or warranties or side agreements of any kind and may not be varied or amended save by written agreement executed by the Parties.
[24] At the time of entering into the Minutes of Settlement, the defendant was again not ready to, and did not want to, take possession of the property or take over operation of the marina, and it was agreed that the plaintiff would remain in the property to March 31, 2014. This fact was addressed at paragraph 3 of the Minutes of Settlement, which provides:
- Provided the Settlement Funds have been paid in accordance with paragraph 2 above, Cushnaghan agrees to provide Kwan with vacant possession of the Property and to relinquish and turn over the operation of South Simcoe Marina on or before March 31, 2014.
[25] The defendant did not make the $500,000 payment on October 31, 2013, and has admitted on cross-examination that she would have done so, but did not have the money. The Statement of Claim was issued on November 18, 2013, shortly after the defendant’s default.
[26] On or about January 5, 2014 or in the early morning hours of January 6, 2014, while the plaintiff remained in possession of the property, the covered boat slips on the property collapsed.
[27] On June 26, 2014 the plaintiff served a Notice of Sale Under Mortgage calculated in accordance with the terms of the Minutes of Settlement. The defendant brought an emergency motion on August 7, 2014, seeking to restrain the plaintiff from proceeding with the Notice of Sale, which relief was denied.
[28] On September 3, 2014, the defendant did pay the amount due under the mortgage as calculated under the terms of the Minutes of Settlement, being $932,132.12. The plaintiff agreed that the mortgage be discharged, and possession of the property was provided to the defendant on October 15, 2014.
The Law and Analysis
[29] In Hryniak v. Mauldin, 2014 SCC 7 [“Hryniak”], the Supreme Court of Canada considered when summary judgment can be granted on the basis that there is “no genuine issue requiring a trial”, as per rule 20.04(2)(a). The Court also considered when it is against the interest of justice for the new fact finding powers in rule 20.04(2.1) to be used on a summary judgment motion.
[30] With respect to the issue of when summary judgment can be granted, the Court stated, at para. 49 of Hryniak, as follows:
[49] There will be no genuine issue requiring trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.
[31] The powers available under rules 20.04(2.1) and (2.2) are presumptively available: Hryniak, supra, at para. 67. They only become unavailable where it is in the interest of justice for such powers to be exercised only at trial. At para. 56 of Hryniak the Court noted: “the interest of justice cannot be limited to the advantageous features of a conventional trial, and must account for proportionality, timeliness and affordability. Otherwise, the adjudication permitted with the new powers – and the purpose of the amendments – would be frustrated.”
[32] In terms of the approach to a motion for summary judgment, Hryniak directs at para. 66 that the judge should first determine if there is a genuine issue requiring a trial based only on the evidence before her, without using the new fact-finding powers. If there appears to be a genuine issue requiring a trial, she should then decide if the need for a trial can be avoided by using the new powers under rules 20.04(2.1) and (2.2). These powers may be used by the motion judge in her discretion provided that their use is not against the interest of justice. Their use will not be against the interest of justice if they will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole.
[33] In this case, having considered the pleadings, evidence and submissions of counsel, I conclude that this is an appropriate case for summary judgment, as such approach will provide a fair and just adjudication. I conclude that there is no genuine issue for trial based on the evidence filed. In this case, the defendant asserts that all of the parties’ obligations to one another are embodied in the Minutes of Settlement, and that the plaintiff has breached his contractual duty by:
Failing to maintain and monitor the boat slips and docks, leading to their collapse;
Failing to insure the defendant’s interest in the subject property to guard against loss to her from property damage, in this case specifically the collapse of the covered slips and docks;
and that she has suffered damages due to the estimated cost of repairing the structures, which work has not yet been undertaken.
[34] This court agrees that this motion hinges on the terms of the parties’ agreement; by virtue of the terms of the Minutes of Settlement, there can be no argument that all of the parties’ rights and obligations to one another as at October 17, 2013, are captured by those Minutes. In the recitals the parties included the following:
AND WHEREAS Kwan and Cushnaghan wish to settle all matters and obligations arising from or relating to the purchase of the Property or South Simcoe Marina and have agreed to settle this matter on the terms and conditions set out herein.
[35] Further, the Full and Final Release attached to the Minutes of Settlement as Schedule “B”, and referenced in paragraph 9 of the Minutes as previously noted, uses the broadest, most all-encompassing language to express the prohibition against further litigation arising from this transaction. The relevant portions state:
KNOW ALL PERSONS BY THESE PRESENTS that in consideration of the payment by Ying Kwan of the sum $500,000 to Robert Cushnagham, together with other good and valuable consideration, all as set out in the Minutes of Settlement dated October 17th, 2013, the receipt and sufficiency of which is hereby irrevocably acknowledged, Ying Kwan and Robert Cushnagham (hereinafter collectively referred to as the “Parties”, which term includes their respective heirs, employees, officers, directors, shareholders, agents, servants, partners, associated or related companies, partnerships and businesses, administrators, predecessors, trustees, beneficiaries, representatives, successors and assigns), hereby irrevocably remise, release, acquit and forever discharge each other from any claims, actions, causes of action, suits, debts, penalties, indemnities, proceedings, prosecutions, charges, complaints, demands, damages, loss or injury, whether at law or in equity, of whatever nature or kind which the Parties had, now have or hereafter may have against each other, whether known or unknown or unanticipated, and whether existing now or arising in the future and without limiting the generality of the foregoing, arising from or relating to the property known municipally as 850 Toll Road, Holland Landing, (the “Property”), the South Simcoe Marina, the Confidential Purchase and Sale Agreement between the Parties dated November 14, 2012, the Agreement of Purchase and Sale between the Parties first dated October 25, 2012, the closing of the Agreement of Purchase and Sale on January 11, 2013, possession, default under the vendor take back mortgage or the sale or operation of South Simcoe Marina.
AND FOR THE SAID CONSIDERATION, the Parties hereby acknowledge and agree that, save for the written terms and conditions of the settlement as set out in the Minutes of Settlement dated October 17th, 2013, they have not been induced to execute this release by reason of any representation or warranty of any nature or kind whatsoever, that each of them has executed the same voluntarily and under no compulsion or duress, that they and each of them understands the terms and conditions contained herein and there are no other conditions, representations or agreements, express or implied, affecting the release.
IT IS FURTHER AGREED that the Parties will not make or continue any existing, further or other claim or demand or take or continue any existing, further or other proceedings against any other person, firm, partnership, business, corporation or other entity that might claim contribution or indemnity from the Parties, or any one of them, under the provisions of any statute or otherwise, for the matters released herein.
IN THE EVENT THAT the Parties have or should hereafter make or continue any existing, further or other claim or demand, or commence or threaten to commence any claim or proceeding, in respect of matters released herein, against the other Party or against any person or entity who or which may claim contribution or indemnity against the other Parties, for or by reason or any cause, matter or thing included in this Release, this document may be raised as and shall be agreed to be an estoppel and complete bar to any such claim, demand, action, chose in action, suit, proceeding or complaint.
[36] Dealing first with the defendant’s allegation that the plaintiff had an obligation to properly maintain the property so as to guard against or prevent the damage which occurred in January, 2014, there is nothing in the Minutes of Settlement that requires the plaintiff to inspect, repair, remediate, monitor, manage, maintain or in any way care for the building or structures on the property. As the chargee under the vendor take back mortgage it may make sense for him to protect his security interest in the property by making such inspections and undertaking such maintenance, but there is no obligation imposed on him by the Minutes of Settlement to do so.
[37] The sole evidence relied on by the defendant to prove her claim in this respect is a bald statement in her affidavit which states:
- At all material times it was understood and agreed by the parties that the Plaintiff would properly operate and manage the Property and Marina during the period of his continuing possession, that the plaintiff would maintain the appropriate Marina Insurance Policy, that the Plaintiff would pay all utility bills, property taxes and other charges relating to the up-keep and/or operation of the marina and would account for the income from the operation of the marina.
[38] The defendant further points to the accounting provided by the plaintiff for the period April 1, 2014 to October 15, 2014, as evidence of the obligation to maintain. That accounting shows money spent by the plaintiff on maintenance, along with an expense of a management fee. This accounting was sought by the defendant, and agreed to be prepared by the plaintiff, for the period after which the plaintiff was to give vacant possession to the defendant under the Minutes of Settlement (by March 31, 2014), but only if the $500,000 was paid pursuant to paragraph 2 of the Minutes of Settlement. Having stayed in possession due to the defendant’s default, the plaintiff, acting reasonably, agreed to account for both income and expenses. The accounting shows that he operated the business at a loss from April 1, 2014 until the mortgage was discharged on October 15, 2014, and possession given to the defendant. But to argue that this accounting is evidence of an alleged obligation to maintain arising under the Minutes of Settlement is fallacious.
[39] Further, the Minutes of Settlement and Release agreed to by the defendant release and bar any claim against the plaintiff for failure to maintain the property or the covered boat slips.
[40] Additionally, the defendant has provided no evidence that the plaintiff was negligent in the maintenance of the covered boat slips, or that they collapsed due to a lack of maintenance. It is the plaintiff’s evidence that he saw no indication that the structure was about to collapse. He deposed that while the slips were some 50 years old, they had been properly maintained and he was not aware of any pending problems or defects. It is his evidence that the boat slips collapsed due to the snow load resulting from a buildup of snow and ice following a snow and ice storm just before Christmas, 2013 and another heavy snow storm on January 5 and 6, 2014. The plaintiff undertook the cleanup of the collapsed structure and replaced the docks with floating docks.
[41] I find that the most that can be said about the plaintiff’s status at the property in January, 2014 was that he was a licensee authorized by the defendant owner to remain at the property as a matter of convenience to her. There is no evidence that she herself took any steps to monitor the snow load on any buildings or structures, or took any steps to maintain her own assets. These failures were at her own peril, as there is nothing in the Minutes of Settlement obliging the plaintiff to take such steps on her behalf.
[42] With respect to the second ground for the set-off to which the defendant alleges that she is entitled, being the alleged failure of the plaintiff to arrange for the appropriate Marina Insurance Policy to provide coverage with respect to the damage to boat shelters and docks, I further find that there is no such obligation created by the Minutes of Settlement. The applicable paragraph in the Minutes of Settlement provides:
- Cushnaghan has paid the sum of $4,725 for a Marina Insurance Policy which runs until September 10, 2014 and agrees that upon payment of the Settlement Funds he will instruct the insurer to transfer the policy to Kwan and Kwan agrees to provide the necessary information to the insurer to facilitate the transfer of the policy.
[43] I find that there is no way for this paragraph to be reasonably construed as imposing an obligation on the plaintiff to arrange coverage for the defendant’s insurance needs. Further, the defendant has provided no evidence that the plaintiff promised to do anything more than arrange to transfer the marina insurance policy that he had in place at the time the Minutes of Settlement were signed in October, 2013, and then only if he was paid the money owed to him. Further, she has provided no evidence that the plaintiff made any representations that the marina insurance policy that he had in place when the Minutes of Settlement were signed provided insurance for the covered slips, in any form. The defendant never asked to review the marina insurance policy, nor did she ask any questions about its coverage or ask to discuss the particulars of the policy with the defendant.
[44] The defendant has provided no evidence that a reasonable person would have insurance which would have covered the replacement of the 50 year old covered boat slips as a result of collapse from snow load. The plaintiff has deposed that he has never had a policy providing coverage to those boat shelters and docks. He paid for and maintained a marina insurance policy from the time that he purchased the property in 2002, having the same coverage throughout. It provided insurance on the office, store, dwelling and repair shop and their contents primarily, as well as marina operator’s liability, boat repairer’s liability and pollution liability. He believed it to be a reasonable policy providing coverage for key risks.
[45] When the defendant failed to pay the plaintiff or take possession of the property, the plaintiff did not cancel that policy, but instead maintained it to protect his own interests. When the parties were negotiating the Minutes of Settlement in October, 2013, the plaintiff deposed that he told the defendant that he had maintained the marina insurance policy, and, as captured in the Minutes of Settlement, he offered to arrange to transfer the policy to the defendant because it was paid through to the fall of 2014. Again, this was only to occur once she had completed her obligations under the Minutes to pay him the settlement funds.
[46] It is also important to note that while the terms of the Agreement of Purchase and Sale were no longer operative or actionable after the signing of the Minutes of Settlement, the Agreement of Purchase and Sale does contain a provision which must have informed the parties of their respective obligations for insurance leading up to the signing of the Minutes of Settlement. In particular paragraph 14 of the Agreement of Purchase and Sale provides:
INSURANCE: All buildings on the property and all other things being purchased shall be and remain until completion at the risk of the Seller. Pending completion, Seller shall hold all insurance policies, if any, and the proceeds thereof in trust for the parties as their interests may appear and in the event of substantial damage, Buyer may either terminate this Agreement and have all monies paid returned without interest or deduction or else take the proceeds of any insurance and complete the purchase. No insurance shall be transferred on completion. If Seller is taking back a Charge/Mortgage or Buyer is assuming a Charge/Mortgage, Buyer shall supply Seller with reasonable evidence of adequate insurance to protect Sellers or other Mortgagees interest on completion.
[47] On a plain reading of that provision, it is clear that the plaintiff was only required to hold existing policies, if any, in trust for the parties. If substantial damage had occurred before the completion of the sale on January 11, 2013, the defendant could either terminate the agreement and have her deposit returned without interest or deduction, or else could opt to take the proceeds of any insurance and complete the purchase. Further, given that the plaintiff was taking back a mortgage, the defendant was to supply the plaintiff with evidence of adequate insurance to protect the plaintiff’s interest on completion.
[48] During her cross-examination the defendant deposed that she had arranged insurance for the property in 2014. However, she failed to produce evidence of any such policy despite her undertaking to do so. The plaintiff has deposed that, at the time of closing, the defendant told him that she had placed insurance on the property. She now denies that statement.
[49] Again, because the respective rights and obligations of the parties are defined by the Minutes of Settlement, and because no other agreements, representations or warranties are applicable, these conversations are moot. Nonetheless, in any competition of credibility, I find that I would prefer the evidence provided by the plaintiff. The plaintiff did provide possession of the property when the mortgage was paid in full. He issued a Notice of Sale Under Mortgage using the terms agreed to under the Minutes of Settlement. He agreed to provide an accounting for the period that he stayed in possession of the property. In summary, the plaintiff appears to be a straightforward and honest individual who complies with his agreements. By contrast, the defendant failed to honour her agreements to pay on multiple occasions. She undertook to provide an insurance policy, testifying under oath that she had placed one, and did not fulfill that undertaking. Perhaps more seriously, she failed to disclose to the court in a supplementary affidavit leading up to the argument of this motion that she had transferred the subject property in April, 2015, when this motion was pending, a fact that will be discussed further below.
[50] In summary, I find that the defendant will be unable to prove that she is entitled to any set-off against the amount that she is obliged to pay the plaintiff pursuant to the Minutes of Settlement either due to an alleged failure to maintain, or an alleged failure to insure. She has failed to show any basis for liability on the part of the plaintiff.
[51] However, even if this court is incorrect in the above conclusion, I conclude that the quantification of the defendant’s claim for a set-off, or counterclaim for damages, will not succeed due to lack of evidence.
[52] As earlier stated, the defendant transferred the subject property to her brother and former husband on April 13, 2015. Even though the defendant deposed that one of the transferees was her ex-husband, the Land Transfer Tax statement shows that nominal consideration was paid on the basis that it was a “transfer to husband and brother for natural love and affection”. The property register for the parcel indicates that the property was transferred by the defendant for $2.00.
[53] The defendant provided no evidence of the fair market value of the property in April, 2015. He counsel concedes that if it was worth $1,700,000 or greater, she would suffer no damages.
[54] The defendant’s claim for damages is based solely on an estimate which places the estimated project cost to install a fixed dock and roof system at $610,310 plus HST. In her cross-examination on her supporting affidavit she explained that she borrowed money from her ex-husband and brother at some unspecified time, and repaid them by giving them the Property. She stated that because there is so much damage to the Property, she couldn’t “handle it” so she gave it to them. It was also confirmed on examination that she had not rebuilt any of the collapsed covered boat slips prior to transferring the Property to her brother and ex-husband. She also confirmed that the Property was never listed for sale or advertised for sale in any way. She claims to still have responsibility for the cost of fixing the boat slips and docks, but there is no written agreement to that effect. Her evidence with respect to why she is allegedly responsible for paying for these repairs is ambiguous and confusing. When re-examined by her own counsel, and asked the question of who is supposed to pay for those repairs, her answer was:
Because like it should be their business now because I gave it to them. However, because at the time I give it to them, I said that oh, this place has such a facility, so now maybe even I have to pay for the money, for the damage because I already told them those facilities included at the time of giving to them.
[55] In summary, the defendant has failed to put her best foot forward to establish that she has any legal obligation to the current owners of the property to pay to repair the damage, and her lack of evidentiary foundation with respect to any financial obligation owed to her brother or ex-husband, or the basis for the transfer of this valuable property for no consideration, completely defeats her claim for damages.
[56] The defendant’s obligations under the Minutes of Settlement should be enforced, which includes requiring her to execute the agreed upon form of release contained therein. The principle of finality and public policy dictates that settlements entered into between parties should be upheld except in the clearest of cases: Sentry Metrics Inc. v. Ernewein, 2013 ONSC 959, [2013] O.J. No. 685 (Ont. S.C.J.) at para. 19, Cellular Rental Systems Inc. v. Bell Mobility Cellular Inc., [1995] O.J. No. 725 at para. 45, aff’d [1995] O.J. No. 3773 (C.A.). In the context of a commercial transaction between two reasonably informed individuals, both represented by counsel, the court will hold the parties to their agreement. Further, the defendant acknowledges the Minutes to be binding and enforceable.
[57] The release was an important part of these Minutes of Settlement: Taske Technology Inc. v. PrairieFyre Software Inc. 2004 66295 (ON SC), [2004], O.J. No. 6019 (Ont. S.C.J.) at paras. 17 and 18. Further, as stated in Marjadsingh v. Walia, 2012 ONSC 6659, [2012] O.J. No. 5788 (Ont. S.C.J.), at para. 18:
A release constitutes a valid contract and like any other contract it is expected that parties should be held to what they have promised. A valid release releases the releasee from any subsequent actions related to the released claims in exchange for money or other valid consideration. [Taske Technology Inc. v. PrairieFyre Software Inc., 2004 66295 (ON SC), 2004 O.J. No. 6019 (Ont. S.C.J.), at paras. [17 and 19]]. Courts do not lightly depart from the basic principles. Even where an exception to the basic rule applies there are strict rules that govern their application.
[58] For the foregoing reasons the motion is granted and an order shall issue in the following terms:
This Court declares that the Minutes of Settlement signed by the plaintiff and the defendant on October 17, 2013, together with the initialled Release attached as Schedule “B” are a binding and enforceable settlement and Release;
This Court orders that the defendant shall execute the Release attached as Schedule “B” to the Minutes of Settlement forthwith;
This Court orders that the defendant shall forthwith pay the amount of $500,000 to the plaintiff, plus prejudgment interest at the rate of 1.3% calculated from October 31, 2013 pursuant to the Courts of Justice Act, R.S.O. 1990 c.C.43;
This Court orders that post-judgment interest shall run on this order from the date of judgment pursuant to the Courts of Justice Act.
Costs
[59] If the parties are unable to reach an agreement on costs, they may each make brief submissions in writing, no longer than 3 single-spaced pages, plus any offers to settle, case law authorities and costs outline on which they seek to rely. The plaintiff’s submissions are due by August 14, 2015, the defendant’s by August 28, 2015 and any reply by September 3, 2015. All submissions are to be directed to the office of the judicial assistants in Barrie, to my attention.
HEALEY J.
Released: July 30, 2015