Court File and Parties

COURT FILE NO.: CV-15-00542851-000 DATE: 20160613 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: 1435970 Ontario Inc, Applicant – AND – GMD Canavas Holdings Inc. and Decora Building Restoration Limited, Defendants

BEFORE: Justice E.M. Morgan

COUNSEL: Eldar Babayev, for the Applicant Jonathan Lancaster and Sarah Turney, for the Respondents, GMD Canavas Holdings Inc. and Decora Building Restoration Limited

HEARD: June 13, 2016

Endorsement

[1] GMD Canavas Holdings Inc. (“GMD”) and Decora Building Restoration Limited (“Decora”) move to enforce an Offer to Settle dated May 3, 2016. The Applicant’s position is that it did indeed accept this Offer on May 6, 2016. However, it contends that this acceptance was premised on a misunderstanding as to whether RDI Construction Company Ltd. (“RDI”) had vacated its premises. Counsel for the Applicant apparently thought that RDI was no longer there, and he states that he communicated his client’s acceptance of the Offer based on this understanding (or misunderstanding). He therefore says that the Offer is void for mistake and is not enforceable.

[2] The irony is that the Applicant itself is located in the same building and was fully aware of the fact that RDI had not vacated the premises. Photographs of the premises taken during the weeks following the Offer demonstrate that RDI was present – it is a company that stores its trucks in the parking lot in a very visible way. Counsel for the Applicant concedes that his client was aware that RDI is still there, but explains that there was a miscommunication or a misunderstanding between him and his client.

[3] The miscommunication between the Applicant and its counsel does not undermine the acceptance of the Offer to Settle. The other parties to the settlement – GMD and Decora – are entitled to rely on counsel’s advice that his client accepts the Offer. This is especially the case where it is the lawyer who misunderstood the state of affairs but the client – i.e. the Applicant – was perfectly aware of the accurate state of affairs.

[4] Furthermore, the Offer itself confirms that it was never intended to be premised on RDI vacating. Paragraph 2 of the Offer specifically states that, “GMD will cause its tenant to remove the gate that it has constructed across the Easement by no later than May 31, 2016.” The “tenant” referred to in this paragraph is RDI. Counsel for the Applicant says that he was also mistaken in this respect in that he thought that the “tenant” refers to Decora, but, as counsel for GMD and Decora points out, Decora is specifically defined in the preamble to the Offer as “Decora”, and this is how it is referred to everywhere in the Offer. The phrase “the tenant” clearly refers to someone other than Decora, and the only party that could logically be a reference to is RDI.

[5] There shall be judgment in accordance with the Offer to Settle dated May 3, 2016. The judgment shall be in the form found at page 60 of GMD and Decora’s Motion Record, with the Offer to Settle dated May 3, 2016 replacing the reference to the Minutes of Settlement in that draft.

[6] GMD and Decora deserve their costs of this motion, since they brought it in order to enforce the Offer to Settle and that is what is being done here. Their counsel requests costs of just over $5,800 on a partial indemnity basis. Counsel for the Applicant estimates that his costs of this motion would be in the range of $5,000. The parties are therefore not far apart. GMD’s and Decora’s costs are reasonable under the circumstances. The Applicant shall pay GMD and Decora costs of $5,800, inclusive of fees, disbursements, and HST.

Morgan J. Date: June 13, 2016