Superior Court of Justice - Ontario

CITATION: Mildren v. Mildren, 2016 ONSC 8076

COURT FILE NO.: 10-4095SR

DATE: 2016-12-23

RE: Dawn Mildren and Shirley Morehouse, Plaintiffs

AND:

Thomas Robert Mildren, Defendant

BEFORE: The Honourable Mr. Justice D.J. Gordon

COUNSEL: James D. Higginson, Counsel for the Moving Party/ Defendant

Alexandria F. Nowak, Counsel for the Responding Parties/Plaintiff

HEARD: December 15, 2016

ENDORSEMENT

[1] Immediately following a pretrial conference in this case, on March 29, 2016, the parties executed minutes of settlement. The terms of this document contemplated a payment by the defendant to the plaintiffs and included the following term:

Upon payment, the parties shall exchange signed Mutual Release as agreed by counsel and the action shall be dismissed without costs.

[2] Subsequently, Mr. Higginson delivered the settlement funds to Ms. Nowak. The funds are being held, in trust. The parties, and counsel, cannot agree on the wording for the mutual release. Each seeks an order that their respective document be signed. For the reasons that follow, I decline to do so.

[3] The parties have been involved in acrimonious litigation for many years, following their separation in 2007. There have been a number of lawsuits, including a matrimonial action that necessitated a ten day trial in 2012, and several actions pertaining to loans and other matters. This action is said to pertain to an assault in 2008.

[4] There is some disagreement as to what was discussed at the pretrial conference and, as no reporter was present, a transcript is not available. At the very least, the parties acknowledge the presiding judge encouraged a resolution to end the acrimony.

[5] Despite negotiations that day resulting in a purported settlement, the acrimony continues and, in all likelihood will never end. Shortly after attending on the pretrial conference, in April 2016, Ms. Mildren attended at the courthouse to inquire about laying a private criminal Information against Mr. Mildren. Of considerable interest, her attendance in this regard occurred prior to the exchange of a draft mutual release by both counsel. In October 2016, Mr. Mildren was served with the Information. Litigation continues.

[6] Correspondence between counsel from April 15, 2016 to August 16, 2016 indicates they could not agree on the wording of the mutual release.

[7] Ms. Nowak proposed wording restricted to this action. Mr. Higginson’s draft is more general in nature, save that reference is made to “not participate in” other proceedings which may bring into play the current criminal prosecution.

[8] In considering the relief sought by the parties, particularly the proposed wording of each mutual release, the relevant principles I must consider are as previously summarized by Baltman J. in Biancaniello, Romano, Prinova Technologies Inc. v. DMCT LLP, Collins Barrow, 2015 ONSC 6361 (Div. Ct.) at paras. 13 and 14:

[13] It is undisputed that the substantive law relating to the interpretation of a release stipulates that whether subsequent claims fall within the scope of those previously released requires a determination of what was “in the contemplation of the parties” when the release was given. In considering what was “in the contemplation of the parties” courts will consider the words used in the document itself, the circumstances leading up to its execution, and evidence as to the intention of the parties. The contextual analysis must be an objective one; it matters not what a party to a release personally believed, but rather what a reasonable bystander would say was in the specific contemplation of the parties under the circumstances: Hill v. Nova Scotia (Attorney General), 1997 401 (SCC), [1997] 1 S.C.R. 69 at para. 20; Sattva Capital Corp. v. Creston Moly Corp, 2014 SCC 53, paras. 57-8; 1518628 Ontario Inc. v. Tutor Time Learning Centres LLC, 2006 25276 (ON SC), [2006] OJ No 3011 at para. 102.

[14] Unless a release has exceptionally comprehensive language, it applies only to claims that were known to the parties at the time that it was executed. A dispute that had not emerged, or a question which had not arisen, cannot be absorbed by the words of a general release. If the parties want to bar unknown claims, they must use clear and unequivocal language to express that intention: York University v. Markicevic, 2013 ONSC 378 at paras. 48 and 52, quoting Geoff Hall, Canadian Contractual Interpretation Law, Second Edition (Toronto: LexisNexis, 2012), s.7.10.1; London & South Western Railway Co. v. Blackmore (1870), LR 4 HL 610, cited with approval in R. v. Imperial Tobacco Canada, 2012 ONSC 6027 at para. 26; Gwininitxw v. British Columbia (Attorney General) 2013 BCSC 1972, para. 25.

[9] Mr. Higginson submits a standard mutual release was contemplated, having regard to the comments of the pretrial judge, so that all matters between the parties would come to an end. He acknowledged that a release would not prevent a criminal prosecution initiated by the police or other public agencies. However, Mr. Higginson says there cannot be a private criminal information having regard to the global resolution negotiated.

[10] Ms. Nowak takes a different approach. She argues in favour of a release limited to the lawsuit. The pretrial judge, Ms. Nowak says, was not aware of the circumstances involved in the matrimonial action. Therefore, she argues, a resolution never contemplated preventing criminal charges arising from Mr. Mildren’s conduct. In these circumstances, a limited release is appropriate, Ms. Nowak referring to the lack of additional words in the minutes of settlement to include other matters.

[11] I am limited in assessing the contemplation of the parties by the lack of a transcript from the pretrial conference. Nevertheless, I can take into consideration the usual discussion that occurs at such events. The intent, in my view, is usually to finalize all matters between the parties.

[12] Such was the expectation of Mr. Mildren. But, clearly, Ms. Mildren had other plans. Shortly after the pretrial conference, she commenced the process of laying the private Information. Indeed, in her affidavit, sworn December 1, 2106, she says “I was unable to attend earlier due to physical and emotional health issues”. In pursuing the criminal charge, Ms. Mildren relied on the reasons for decision from the matrimonial trial, released March 28, 2013. Hence, I can only conclude that at the time of the pretrial conference, and the execution of the minutes of settlement, Ms. Mildren intended on pursuing the private criminal complaint. Unfortunately, she did not disclose her intention to Mr. Mildren, nor even to her own counsel.

[13] Unlike other cases, I have no difficulty in determining what the parties contemplated at the time they signed the minutes of settlement. Unfortunately, their expectations were different. I do not read the jurisprudence as saying the mutual release must, therefore, be limited to the matters only in the lawsuit. In the circumstances of this case, it cannot be said that a reasonable bystander would say that was the intended result.

[14] When the parties have a different expectation, compounded by the lack of disclosure, I can only conclude there was no meeting of the minds, as Mr. Higginson argues. Hence, at this point in time there is no agreement, the minutes of settlement being conditional on a mutual release. Failing further negotiations and a signed release, the settlement funds must be returned and the action restored to the trial list.

[15] I must add, I take no comfort from the reference to other potential claims being barred by the provisions of the Limitations Act given the provision therein relating to “discoverability”.

[16] In result, I cannot approve either draft mutual release and the motion is dismissed.

[17] In the circumstances, my preliminary assessment is that neither party is entitled to a cost award. If either counsel is of a different view, brief written submissions shall be exchanged and delivered to my chambers within 30 days of the release of this endorsement.

D.J. Gordon J.

Date: December 23, 2016