Court File and Parties

COURT FILE NO.: CV-16-552210 DATE: 20160628 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: JOHN DAVIDSON GREGORY, Applicant AND: RYAN LINDAN GILL, DANIELLA MILETIN-GILL, LAUREN ASHLEIGH BEATON, AARON MOSHA GLAZER and FIRST NATIONAL FINANCIAL GP CORPORATION, Respondents

BEFORE: Carole J. Brown, J.

COUNSEL: Mark Wainberg, for the Applicant Howard D Gerson, for the Respondents Gill and Miletin-Gill

HEARD: June 24, 2016

Endorsement

[1] The applicant, John Davidson Gregory, and his wife, Lynn Horton, reside at 667 Euclid Avenue in Toronto and are neighbours of the respondents, Ryan Lindan Gill and Daniella Miletin-Gill, who reside at 665 Euclid Avenue. The properties share a party wall.

[2] The applicant has resided in the property since 1983 and the respondents purchased the neighbouring property in 2014.

[3] The application was brought to address a title/encroachment dispute between the parties affecting the properties owned by them, in advance of the sale of the applicant's property, scheduled to close June 21, 2016. The property did close on that day and the applicants had moved from the property at the time of the motion.

[4] On June 2, 2016, the parties settled the application and so advised the court on June 3, 2016.

[5] Paragraph 7 of the offer to settle provides as follows:

7. The applicant and the Gill respondents to sign a mutual release in a form satisfactory to their lawyers acting reasonably.

[6] The parties have been unable to reach an agreement as regards the wording of a mutual release. As a result, the respondent brings this motion pursuant to rule 49.09 for an order enforcing the agreement to settle the application by settling the terms of the mutual release required under the terms of settlement.

[7] At the opening of court on June 24, I suggested to counsel that they continue negotiations as regards the terms of a mutual release prior to their being heard. They both left the courtroom, but were unable to arrive at an agreement.

[8] The issue involves the proper parties to the release. The applicant wishes to include his wife, Lynn Horton, although she was not a party to the encroachment application. She was not included in the application as she was not on title as regards the matrimonial home. Her affidavit in support of this motion states that she was involved in all of the major decisions in the proceedings and that she was contacted by Mr. Gerson, on behalf of the respondents, as regards a settlement. There was no cross-examination on the affidavit and, accordingly, her sworn evidence is uncontroverted.

[9] It is the position of counsel for the respondent, that it was not contemplated by the parties at the time of settlement that she be included in a mutual release; that she was not a party to the application; that she was not represented by Mr. Wainberg during the settlement negotiations; that the settlement does not provide for her to be a party to the mutual release and that the settlement only provides for a mutual release between the applicant and the Gill respondents. I note that Lynn Horton did retain Mr. Wainberg for the purpose of negotiating the terms of the release following settlement of the application. Pursuant to correspondence from Mr. Gerson on June 2, 2016, he stated to Mr. Wainberg "you will confirm the form of mutual release acceptable to the applicant".

[10] As regards the release, and who should be included as parties to the mutual release, Mr. Gerson relies upon the cases of Disera v Bernardi, 2014 ONSC 4500, paragraphs 27 and 38; Zelsman v Meridian Credit Union, 2011 ONSC 1682, paragraphs 2, 3a, 41, 42, 45 and Martenfeld v Collins Barrow Toronto LLP, [2014] OJ No 4195.

[11] It is the position of Mr. Wainberg that, the moving party, having brought this motion under rule 49.09, has not satisfied his burden under the rule. He states that while the rule requires that a party may bring a motion for judgment in the terms of the accepted offer where the other party to an accepted offer to settle fails to comply with the terms of the offer, in this case, the parties have not failed to comply with the terms of the offer, but have simply not been able to arrive at a mutual agreement as regards the release, acting reasonably.

[12] After much back and forth correspondence between counsel as regards the mutual release following settlement of the application, Mr. Gerson, on June 13, sent a revised draft of the draft release with changes tracked, which included Lynn Horton as well as the applicant and was to be effective through the date of the release. In that e-mail, he indicated that he had not received instructions from his client regarding the final form of release he was forwarding to Mr. Wainberg.

[13] The purchasers of 667 Euclid, Lauren Ashleigh Beaton and Aaron Mosha Glazer, were also included as respondents to the application, but did not wish to be included in the release.

[14] Following June 13, it appears that matters unraveled and, thereafter, Mr. Gerson advised Mr. Wainberg that his clients were only willing to execute the mutual release between the parties to the application to the date of the settlement, June 3, and not to the date of release, as previously agreed. By July 15, Mr. Gerson sent another e-mail stating "On Monday, June 13, I sent you a revised draft of your draft release with changes tracked (which changes you have accepted) and which included Ms. Horton for the sake of achieving finality". However, due to the allegations concerning his client and "malicious complaints" about his clients, he would no longer agree to a release effective through the date of release, but would only agree to a release of claims to June 3, to preserve his clients' rights to bring a lawsuit against the applicant and Lynn Horton.

[15] The background evidence indicates that the parties have had a stormy relationship as neighbours. Most recently, following the settlement of the application, there have been accusations as against the applicant and Lynn Horton that they made unfounded allegations against the Gills to the respondent purchasers, Beaton and Glazer, and also, as regards Lynn Horton, with respect to a threatened suit for "malicious interference" by Ms. Horton with the Gill's construction workers concerning compliance with an Ontario Municipal Board Order regarding 665 Euclid Avenue. The incident apparently arose after settlement. Ms. Horton's explanation of the incident is contained in her affidavit at paragraph 7. Again, the evidence contained in the affidavit was not cross-examined upon and, as such, is uncontroverted.

[16] As a result of these allegations and a threatened potential lawsuit against Ms. Horton, the mutual release is important to the applicant and Lynn Horton because, as they state in their affidavits in support of this motion, they "want a "clean break" from the Gills.

[17] I am not satisfied that the lawyers have, in fact, acted reasonably throughout concerning a mutual release. I do note that there have been numerous negotiations back and forth and that both had agreed, to the June 13 release, sent by Mr. Gerson which included both the applicant and Lynn Horton up to the time of the release. Agreement was withdrawn, as Mr. Gerson explains, given the fact that the respondents do not wish to provide a release that may release Ms. Horton from any potential action regarding "malicious interference". He states that he has received no instruction from his clients at this juncture to commence an action against her, but does not want to preclude this.

[18] It is clear from all of the evidence before me that the relationship between the "neighbours" has been unpleasant and stormy, and not one of cordial neighbours throughout. In part, as a result of these relations, the applicant and Ms. Horton finally determined that they would sell their home, which they have done. They no longer live in that home, but have moved. According to their affidavits, upon which there was no cross-examination, they did not wish to live next to the Gills any longer. They wished to make a "clean break" and to bring finality to the relationship.

[19] It appears from the evidence that there was not an initial intention or expressed intention to include Ms. Horton in the release. I note, again, that she was not a party to the application and she is not on title. Only the owners of the subject properties, including the subsequent purchasers of 667 Euclid and the bank were named. However, given all of the circumstances, and the previous proceedings in this dispute between the "neighbours", the applicant seeks to have his wife, who was not a party to the application, included in the release to make a clean break with the Gills and to bring finality to the matter.

[20] This wish on the part of the applicant was originally communicated by Mr. Wainberg to Mr. Gerson who agreed on June 13 that Ms. Horton be included as a means to "bring finality" to the issues.

[21] The request to include her in the release is reasonable, given all the circumstances, as was the agreement by the respondent on June 13 to do so. It is, in my view, reasonable that the mutual agreement now be concluded in those terms. Thus, the mutual release should include both the applicant and Lynn Horton and should release all parties and Ms. Horton to the date of the signing of the final release, as counsel had originally agreed on June 13, 2016.

[22] In all of the circumstances of this case, I make no order as to costs. Each party is to bear their own costs.

Carole J. Brown, J. Date: June 28, 2016