ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CV-12-448095

DATE: 20151019

BETWEEN:

ALAMGIR HUSSAIN
Plaintiff

– and –

DANIEL SARAFIAN, MOHAMMAD ALTAF HOSSAIN, GAULTAM PUAL and MAK AZAD
Defendants

Alamgir Hussain, Self-Represented Plaintiff

Amanda S. Gibson, for the moving parties, Sarafian, Paul and Azad

HEARD: October 9, 2015

s.a.Q. akhtar j.

Reasons for Judgment

1The plaintiff commenced an action against the defendants for damages of $59,000.00 for defamation based on the allegation that one of the defendants, Daniel Sarafian, called him “ridiculous” during a Small Claims Court settlement conference. According to the plaintiff, this comment caused, amongst other things, mental distress and anguish, loss of reputation and loss of dignity and self esteem. He was unable to sleep and his ability to carry out legal studies and other social activities were severely impaired.

2On 3 March 2015, the plaintiff wrote, in an email, to Amanda Gibson, counsel for Sarafian, Paul and Mak (“the moving parties”), and offered to withdraw his claim on a consent and without costs basis so long as the moving parties did the same.

3The email reads as follows:

Pursuant to the Rules of Civil Procedure, I would like to make an offer as follows-

(a) The Plaintiff will withdraw the claim and the defendants will consent to withdraw

(b) Both parties will be agreed to resolve the issues fully and finally without costs.

Alternatively, Please (sic) schedule the dates for Examination of Discovery and Mediation.

4No deadline for acceptance of the offer was stipulated. On 9 March 2015, the plaintiff requested that examinations for discovery and mediation be scheduled.

5On that same date, Ms. Gibson wrote to the plaintiff informing him of the acceptance of the offer of settling the action “on the basis of a dismissal without costs”, adding that she would send a draft of a “full and final release” under separate cover. The release was sent on 11 March 2015. Shortly thereafter, on 16 March 2015, the plaintiff informed Ms. Gibson that he also required an apology from her clients. When the moving parties indicated that an apology was not a term of the settlement they had agreed to, the plaintiff indicated that he considered his offer rescinded by his request to schedule dates for mediation and discovery.

6The plaintiff does not dispute that he made the offer, as described above, but claims that the offer was for the withdrawal of the action but not the dismissal. He also adds that an apology was part of the offer made to the moving parties. Since the moving parties accepted an offer for dismissal and not withdrawal, the plaintiff claims his offer was never accepted. Moreover, since his requirement for an apology was not satisfied, the offer was not fully and unconditonally accepted.

7Rule 49.02 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, specify the following:

(1) A party to a proceeding may serve on any other party an offer to settle any one or more of the claims in the proceeding on the terms specified in the offer to settle (Form 49A). R.R.O. 1990, Reg. 194, r. 49.02 (1).

(2) Subrule (1) and rules 49.03 to 49.14 also apply to motions, with necessary modifications.

8Rule 49.04 of the Rules outlines the procedure for withdrawal of offers in the following way:

(1) An offer to settle may be withdrawn at any time before it is accepted by serving written notice of withdrawal of the offer on the party to whom the offer was made.

(2) The notice of withdrawal of the offer may be in Form 49B. R.R.O. 1990, Reg. 194, r. 49.04 (2).

9The law is clear that any withdrawal must be clear and unequivocal: D & R Equipment Repairs Ltd. v. Mardave Construction (1989), 69 O.R. (2d) 48 (H.C.J.). A withdrawal to a written offer can only be made in writing and not orally: Smith v. Robinson (1992), 7 O.R. (3d) 550 (Gen. Div.).

10A review of the evidence discloses that the plaintiff’s letter of 3 March 2015 contained only an offer of withdrawing the claim without costs. That offer is equivalent to the dismissal of the action. There is no reference to the requirement of an apology. The plaintiff’s further email of 9 March 2015 requesting that discovery and mediation dates be scheduled did not, in any manner, indicate that the 3 March 2015 offer was being withdrawn as required by Rule 49.04 of the Rules. Consequently, the offer stood until refused or accepted.

11The moving parties’ letter of 9 March 2015 indicated acceptance. I repeat that there is no meaningful difference between withdrawal of the action or its dismissal in the circumstances of this case. Once the moving parties sent their acceptance it was binding on both parties.

12The plaintiff’s denial of these events is simply not credible upon examination of the correspondence. It is clear the first time the plaintiff raised withdrawal of the offer was when his demands for an apology were rejected.

13Accordingly, the moving parties’ motion is granted. The court orders that the settlement reached between the parties on 9 March 2015 is to be enforced.

14If the parties cannot agree on costs, I invite the moving parties to submit a written application for costs no longer than 5 pages within 30 days of these reasons. The plaintiff is to file written reasons of the same length within a further 30 days.

S.A.Q. Akhtar J.

Released: October 19, 2015