Court File and Parties

COURT FILE NO.: FS-12464-12 DATE: 2016-08-12 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Lorne William Alston Applicant – and – Catherine Dawn Alston Respondent

COUNSEL: Matti E. Mottonen, for the Applicant Serge F. Treherne, for the Respondent Catherine Dawn Alston, acting in person

HEARD: August 5, 2016

DECISION ON MOTION

DEL FRATE, J

[1] Although Mr. Treherne is reflected as counsel of record, he was dismissed by Ms. Alston halfway through these proceedings. Ms. Alston then chose to represent herself.

Background

[2] The respondent brings a motion for judgment in accordance with a settlement arrived at between counsel during the course of negotiations on April 7 and 8, 2016.

[3] This matter was scheduled to proceed to trial for the sittings commencing April 18, 2016. Prior to that date, counsel had numerous discussions regarding resolution of all outstanding issues between the parties. The most contentious issue was the division of two properties. One, the matrimonial home situated on Vankoughnet Street, the other a rental property situated at 63 Campbell Street in Little Current.

[4] Eventually, the parties agreed that the applicant would retain the rental property if the bank released the respondent from its mortgage obligations on that property. The respondent would then retain the matrimonial home. Should the appropriate release not be obtained, then both properties would be listed for sale and the net proceeds would be divided equally between the parties. These discussions were confirmed in writing by both counsel on April 6 and 7, 2016. The correspondence confirmed resolution of the other issues in dispute such as support, releases and costs.

[5] On April 8, 2016, Mr. Mottonen advised Mr. Treherne that the bank would not be releasing the parties and thus the 30 day time limit for obtaining the releases was waived so that the properties could be listed for sale immediately. Both counsel agreed to this proposal and Mr. Mottonen confirmed these discussions in writing on April 8, 2016. It was agreed that Mr. Mottonen ought to prepare the minutes of settlement incorporating the agreement.

[6] Both counsel advised the trial coordinator that the trial dates would not be required.

[7] Mr. Treherne confirmed by correspondence of April 7, 2016, and April 8, 2016, that settlement had been achieved on all outstanding issues between the parties. As well, in that correspondence, he included proposed wording of some of the clauses to be incorporated in the minutes.

[8] It was not until April 27, 2016, that Mr. Treherne indicated that he had forwarded various correspondence to his client for her comments and instructions. Also, in that letter there is discussion about the proposed realtor for the listing of the properties. On May 5, 2016, Mr. Treherne asked to clarify whether the applicant had taken the necessary steps regarding the life insurance questions. Finally, on May 11, 2016, Mr. Treherne informs Mr. Mottonen that “Mrs. Alston is not prepared to sign the minutes in their present form”.

[9] On June 2, 2016, Mr. Treherne wrote proposing changes to the minutes of settlement in particular, regarding the disposition of the properties. At that point, Mr. Mottonen replies that a motion for settlement will be brought.

The Position of the Parties

[10] The applicant submits that the parties, after extensive negotiations and judicial assistance, arrived at a comprehensive agreement which incorporated all of the outstanding issues between them. Pursuant to the agreement, comprehensive minutes of settlement were prepared for execution by the respective clients. The respondent is now reneging on the agreement, thus a court ought to rule that the settlement achieved by counsel was valid.

[11] The respondent submits that the subsequent minutes of settlement prepared by Mr. Mottonen do not comply with the discussions and the draft minutes. They are much more detailed and at variance with what the respondent understood the settlement to be. Accordingly, the parties were not at idem on the essential terms of the agreement and thus, no settlement ever existed.

The Law

[12] The law regarding a lawyer`s authority to bind his client to a settlement is clearly set out in two decisions:

a. In Scherer v. Paletta, [1966] 2 O.R. 524, the Court of Appeal states the following:

The authority of a solicitor to compromise may be implied from a retainer to conduct litigation unless a limitation of authority is communicated to the opposite party. A client, having retained a solicitor in a particular matter, holds that solicitor out as his agent to conduct the matter in which the solicitor is retained. In general, the solicitor is the client's authorized agent in all matters that may reasonably be expected to arise for decision in the particular proceedings for which he has been retained. Where a principal gives an agent general authority to conduct any business on his behalf, he is bound as regards third persons by every act done by the agent which is incidental to the ordinary course of such business or which falls within the apparent scope of the agent's authority.

b. In Dick v. McKinnon, 2014 ONCA 784, at para.4, the Court of Appeal states:

This court has observed that it is well-established law that “a solicitor of record has the ostensible authority to bind his or her clients and that opposing counsel are entitled to rely upon that authority in the absence of some indication to the contrary.”

Discussion

[13] The evidence discloses that experienced counsel negotiated a resolution after extensive discussions between them. Eventually, those discussions led to a resolution which was confirmed verbally and in writing to the point that minutes of settlement were drafted. An order was prepared and the trial coordinator was advised by both parties to cancel the trial dates.

[14] At no time was there any indication that both counsel, and in particular Mr. Treherne, did not have the ostensible authority to engage in such discussions and procedures that led to the preparation of the minutes of settlement.

[15] The respondent in her submissions, after she dismissed Mr. Treherne, indicates that she and her counsel were not at idem on the essential terms of the agreement. I do not accept that contention. This was a comprehensive resolution which would have required the input of the respondent. Follow up correspondence dealing with the choice of the realtor and particulars on the life insurance policies clearly indicate to me that the respondent was aware of what had transpired.

[16] In her submissions, the respondent repeats what she stated in her affidavit that she: “did not fully understand the meaning of this proposed settlement or that she could be bound by the settlement without her signature.” I do not accept that contention. The respondent is an articulate and involved litigant who now wants to redraft an agreement that was achieved through extensive negotiations and the assistance of the judiciary. She may have second thoughts about the agreement but so do many litigants.

[17] The court system cannot permit litigants to second guess themselves unless there is clear evidence of misrepresentation, fraud or incapacity to instruct counsel. There is no such evidence before me.

[18] As stated in Scherer and Dick, counsel is expected to rely on the fact that opposing counsel has the ostensible authority to engage in settlement discussions. In this case, not only were there discussions but those discussions were subsequently confirmed on several occasions. Under the circumstances, the motion is granted and judgment is to issue pursuant to the minutes of settlement dated April 8, 2016.

Costs

[19] Mr. Mottonen is seeking costs on a full indemnity basis in the sum of $6,962.90 plus HST of $905.18 for a total of $7,868.08. I do not agree that full indemnity is appropriate. I also do not agree on the amount requested. Some of the work would have been required even if the minutes had been approved. For instance, correspondence between himself and Mr. Treherne regarding the preparation and drafting of the minutes, changes to the proposed minutes further discussions with Mr. Treherne.

[20] Under the circumstances, I will allow a sum of $4,500.00 in fees plus the appropriate HST of $585.00 for a total of $5,085.00.

[21] Order to issue as per reasons.

The Honourable Justice Robert G.S. Del Frate

Released: August 12, 2016