CITATION: Sarazen v. McTaggart et al., 2017 ONSC 5281
COURT FILE NO.: 15-65083
DATE: 2017/09/05
SUPERIOR COURT OF JUSTICE
ONTARIO
BETWEEN
SARAZEN REALTY INC. COB COLDWELL BANKER SARAZEN REALTY BROKERAGE
Plaintiff (Moving Party)
– and –
PAUL McTAGGART and MARCEL BISSON and JEAN-GEORGES BISSON
Defendants (Responding Parties)
– and –
MARCEL BISSON and JEAN-GEORGES BISSON
Plaintiffs by Counterclaim
(Responding Parties)
– and –
SARAZEN REALTY INC. COB COLDWELL BANKER SARAZEN REALTY BROKERAGE and KEITH SENNETT
Defendants to the Counterclaim
(Moving Parties)
Steven Greenberg, counsel for the Plaintiff (Moving Party) and for the Defendants to the Counterclaim (Moving Parties)
Charles Gibson, counsel for the Defendants (Responding Parties) and for the Plaintiffs by Counterclaim (Responding Parties)
Susanne Sviergula, counsel for the Defendant (Responding Party)
HEARD: July 12, 2017
Reasons for Decision
O’bonsawin, J.
Background
[1] The Co-Defendants, Marcel Bisson and Jean-Georges Bisson (Bisson brothers), signed a listing agreement with the Plaintiff, Sarazen Realty Inc. (Sarazen Realty), to act as the real estate broker to sell their family farm. Mr. Keith Sennett, a Defendant on the Counterclaim, was the real estate agent for this matter. The Bisson brothers retained the legal services of the Co-Defendant, Mr. Paul McTaggart, to assist them with the real estate closing of the property. Mr. Sennett and Mr. Taggart are unilingual Anglophones. The purchase and sale of the property closed on June 23, 2015. The farm was sold for $27,000,000. The Bisson brothers had agreed to a vendor-takeback mortgage with the purchasers.
[2] According to the file before me, the Statement of Claim dated July 22, 2015 was served and filed by Sarazen Realty.
[3] The Statement of Defence and Counterclaim dated September 9, 2015 was served and filed by the Bisson brothers.
[4] The Statement of Defence dated September 22, 2015 was served and filed by Mr. McTaggart.
[5] The Amended Defence to Counterclaim dated September 30, 2015 was served and filed by Sarazen Realty.
[6] The Reply to the Amended Defence to the Counterclaim dated October 7, 2015 was served and filed by the Bisson brothers.
[7] It is important to note that all of the pleadings up to June 20, 2017, including the motion in front of Mr. Justice Kershman, were in English.
[8] The Pre-trial Conference was held before Justice Kershman on April 13, 2017. All parties attended with counsel. The Pre-trial Conference proceeded with the consent of the parties who were aware that Mr. Justice Kershman is not bilingual. This was not raised as an issue at any time by the Bisson brothers. As per paragraph 12 of the Minutes of Settlement signed by all of the parties at the Pre-trial Conference, “in the event of any issues arisen in the course of this settlement, the parties are to attend before Justice Kershman”.
[9] On April 17, 2017, Sarazen Realty’s counsel sent a draft of the Full and Final Release to the Bisson brothers and to Mr. McTaggart for their signatures.
[10] Mr. Sarazen and Mr. Sennett signed the Full and Final Release. The Bisson brothers refused to sign and Mr. McTaggart did not sign either.
[11] Consequently, Sennett Realty and Mr. Sennett served and filed a Notice of Motion on June 1, 2017.
[12] The Bisson brothers served and filed a Notice of Motion dated June 19, 2017 seeking a stay of the matter pending the appeal of Mr. Justice Kershman’s order. On July 12, 2017, I heard the motion which I dismissed by providing a verbal judgment on the same day.
[13] The parties appeared before Mr. Justice Kershman again on June 20, 2017 and he made orders regarding the serving and filing of documents related to the motions.
[14] Sarazen Realty and Mr. Sennett served and filed their Notice of Motion dated June 21, 2017, which is before this Court. Sarazen Realty and Mr. Sennett seek the following:
(a) an order for the Defendants to sign the release as contemplated by the Minutes of Settlement of April 13, 2017 and the draft provided;
(b) an order for the Defendants to pay to Sarazen Realty and Mr. Keith Sennett the amount of money set out in the Minutes of Settlement; and
(c) an order for costs on a solicitor and his/her own client basis.
Issues
[15] The issues on this Motion are:
(1) Is there a genuine issue requiring a trial with respect to the claims raised against Sarazen Realty and Mr. Sennett?
(2) Are there issues requiring a mini-trial?
(3) If there is a genuine issue for trial, should this Court make an order specifying what material facts are not in dispute and defining the issues to be tried?
Evidence of the Parties
[16] The parties provided this Court with evidence by way of Affidavits and attached exhibits.
[17] At the hearing, Mr. Gibson attempted to file a new Affidavit which had only been received by Mr. Greenberg by fax on the day of the hearing at 12:30. Mr. Greenberg objected to the filing of the new Affidavit since Mr. Gibson had until July 5, 2017 to file the Affidavit as per Mr. Justice Kershman’s order dated June 20, 2017. I reviewed the Affidavit and was in agreement with Mr. Greenberg. The information contained in the new Affidavit was available and could have been served and filed within the timelines set by Mr. Justice Kershman. Consequently, I did not accept the new Affidavit.
[18] I will review Mr. Marcel Bisson’s Affidavit sworn on July 6, 2017 that was accepted by this Court. His Affidavit was provided in French. I summarize the relevant points of his evidence as follows:
• Mr. Bisson is 75 years old and his brother Jean-Georges is 77 years old. They are both Franco-Ontarians. Their maternal language is French, in which they are comfortable speaking and writing. Although they understand English, it is more difficult for the Bisson brothers to understand certain English phrases, nuances and to follow complete conversations in English.
• On April 13, 2017, the Bisson brothers attended the Pre-trial Conference. They understood that the goal of the Pre-trial Conference was to plan for the trial that was scheduled for September 2017 and that there may also be discussions between the parties to settle the case.
• On the day of the Pre-trial Conference, the Bisson brothers were up since 6 am as they have always had the habit of getting up early because they grew up on a farm. The Pre-trial Conference did not start until approximately 11:00 am.
• The Bisson brothers, their lawyer Mélanie Lévesque, Paul McTaggart and his lawyer, Kristopher Dixon, a representative of Sarazen Realty, Keith Sennett, and their lawyer, Steven Greenberg, attended the Pre-trial Conference.
• Shortly after all of the parties arrived in the conference room, Mr. Justice Kershman arrived and introduced himself as the judge who would preside over the Pre-trial Conference. Mr. Justice Kershman spoke a bit in French to the parties, however, the majority of his interventions were in English. At times, the Bisson brothers had difficulty understanding Mr. Justice Kershman when he was addressing them and the other parties in English.
• For the Bisson brothers, the Pre-trial Conference was very stressing. They were trying their best to understand Mr. Justice Kershman.
• The Bisson brothers understood from Mr. Justice Kershman that their Counterclaim (Demande reconventionelle) was premature. It had not become known whether the purchasers would repay the mortgage earlier which would lead to the Bisson brothers not receiving the full interest payment from the vendor-takeback mortgage. The Bisson brothers understood that they should have waited for the crystallization of the damages before continuing their Counterclaim against Sarazen Realty and Mr. Sennett. The Bisson brothers put a lot of weight in this understanding during the negotiations at the Pre-trial Conference.
• The majority of the negotiations during the Pre-trial Conference took place between the lawyers while the Bisson brothers were in a separate room. The Bisson brothers were instructed to stay in their separate room. They did not know the court procedure and thought that they were not permitted to speak to Mr. McTaggart, who was their lawyer for the real estate transaction. The Bisson brothers have confidence in Mr. McTaggart and would have liked to receive his advice during the negotiations.
• On two or three occasions, Mr. Justice Kershman came into the separate room and discussed a settlement with the Bisson brothers. They felt a lot of pressure to settle from Mr. Justice Kershman since he repeated on many occasions that their Counterclaim was premature. He put a lot of emphasis on the fact that the Bisson brothers did not currently have a cause of action since they had not yet suffered any damages.
• During all of the negotiations, the Bisson brothers took the position that they wanted to maintain their right to pursue their Counterclaim against Sarazen Realty and Mr. Sennett if their damages crystalized in the future. They had every intention of filing a complaint against Mr. Sennett with the Real Estate Council of Ontario. This complaint had already been drafted but the Bisson brothers decided only to file it after the trial. The Bisson brothers repeated on many occasions to their lawyer and to Mr. Justice Kershman that they wanted to maintain their right to pursue their Counterclaim.
• At one point during the negotiations, there was the question of whether the settlement should remain confidential. The Bisson brothers did not want the settlement to remain confidential since they could not speak about what happened to others and could not continue to pursue their Counterclaim.
• The Pre-trial Conference was a long day and at the end of it, the Bisson brothers were exhausted. The fact that this litigation was related to the sale of the Bisson brothers’ patrimonial farm was difficult and emotional.
• Near 4:00 pm, the Bisson brothers’ lawyer entered the room where they were sitting alone. Ms. Lévesque presented them with a document entitled “Minutes of Settlement” which was in English. The Bisson brothers did not know who drafted the Minutes of Settlement. Their lawyer asked them to read and sign the Minutes of Settlement. The Bisson brothers were not provided with an explanation from their lawyer regarding the meaning of each paragraph of the Minutes of Settlement.
• The Bisson brothers understood that the Minutes of Settlement settled the claim from Sarazen Realty against them for a compromise of $225,000 instead of $520,000. Consequently, Sarazen Realty would receive approximately 3.5% of commission. This represented a compromise between Sarazen Realty and the Bisson brothers of 0.5% each since Sarazen Realty was claiming 4% and the Bisson brothers were claiming 3%.
• When Marcel Bisson read paragraph 7 of the Minutes of Settlement regarding “confidentiality”, he advised Ms. Lévesque that he would not sign the document with this clause. Ms. Lévesque advised them that she would take care of it and defend their rights. Ms. Lévesque asked them to sign the Minutes of Settlement and they signed it.
• The Bisson brothers thought that after the signature of the Minutes of Settlement, Ms. Lévesque would go see the judge and ask for there to be a change made to the document that would allow them to maintain their future litigation rights against Sarazen Realty and Mr. Sennett. To their surprise, the Bisson brothers were told that the Pre-trial Conference was done and the litigation had been settled. Marcel Bisson was mad and his brother tried to get a better understanding of what happened.
• At no time did the Bisson brothers intend to abandon their future Counterclaim against Sarazen Realty and Mr. Sennett since this represented a possible future loss of $3,800,000 in interest. The Bisson brothers now understand that the confidentiality clause in the Minutes of Settlement was not to preserve their rights to sue Sarazen Realty and Mr. Sennett.
• With regards to paragraph 6 of the Memorandum of Settlement—“[a]ll parties to sign a full and final release including a LawPRO Standard Release”—the Bisson brothers understood that all current litigation would end but this did not limit their claim against Sarazen Realty and Mr. Sennett.
• On April 20, 2017, the Bisson brothers’ lawyer provided them with the Full and Final Release. When they read the document, they understood that they were going to lose the possibility of pursuing their Counterclaim against Sarazen Realty and Mr. Sennett. Consequently, the Bisson brothers refused to sign the Full and Final Release.
• On June 20, 2017, the parties appeared before Mr. Justice Kershman, who was mad that the Bisson brothers brought forward their motion. On at least two occasions, Mr. Justice Kershman left the room. The Bisson brothers allege that Mr. Justice Kershman smiled at the lawyers for Sarazen Realty and Mr. Sennett even when nothing funny was said. They do not believe that Mr. Justice Kershman’s behaviour was what they expected of a judge.
• The Bisson brothers instructed their new counsel to appeal Mr. Justice Kershman’s decision of June 20, 2017.
[19] This Court was also provided with two Affidavits of Mr. Keith Sennett, one sworn on June 1, 2017 and a subsequent one sworn on June 21, 2017. I summarize the relevant points of his evidence as follows:
• All documents in connection with the subject transaction for the sale of the Bisson brothers’ land for $27,000,000 were in the English language. The dispute arose in connection with the commission payable and the mortgage take back to the Bisson brothers.
• At the Pre-trial Conference on April 13, 2017, all of the parties attended with counsel. The conference proceeded with the consent of the parties who were aware that Mr. Justice Kershman is not bilingual. This was not raised as an issue at any time by the Bisson brothers. The Bisson brothers are bilingual. Mr. McTaggart is a unilingual Anglophone. Ms. Mélanie Lévesque was the Bisson brothers’ counsel in the litigation and the Pre-trial Conference. She is bilingual.
• The Pre-trial Conference lasted approximately five and a half hours during which time each party met with Mr. Justice Kershman in private with their counsel a number of times. The result of this exercise was that the Minutes of Settlement were signed and filed. In fact, the payment plan contained in the Minutes of Settlement was proposed by the Bisson brothers. Mr. McTaggart and Ms. Lévesque advised the Bisson brothers throughout the Pre-trial Conference. The Minutes of Settlement were reviewed by the Bisson brothers with their counsel before signing.
• On April 17, 2017, Mr. Sennett’s counsel sent a draft Full and Final Release to the other counsel for their review and comments. A few weeks later, Mr. Sennett spoke with Mr. Dixon who advised him that his client would not sign the Minutes of Settlement and it was his understanding from Ms. Lévesque that her clients, the Bisson brothers, would not sign either.
• Mr. Sarazen and Mr. Sennett signed the Full and Final Release with a minor modification in relation to the month that the original contract for sale of the land was signed.
• At no time until June 19, 2017 were any of the other parties advised that the Bisson brothers were challenging the Minutes of Settlement.
• To this date, Mr. McTaggart has not made the payment of $25,000 within 30 days, which is one of the terms of the Minutes of Settlement. This should have been paid by May 12, 2017.
• Mr. Sennett suspects that the Bissons will not make the payment which they are obliged to make either. He is given to understand that Mr. McTaggart has been very influential to the Bisson brothers.
[20] This Court was also provided with an Affidavit of Kristopher L. Dixon sworn on July 4, 2017. He is an associate at Cavanagh Williams LLP and represented Mr. McTaggart. I summarize the relevant points of his evidence as follows:
• Mr. Dixon had the principal and sole carriage of this matter since August 1, 2015 and he attended the April 13, 2017 Pre-trial Conference before Mr. Justice Kershman with his client.
• The Pre-trial Conference lasted approximately five hours. Each party attended with counsel who acted as their respective legal representative since the commencement of the litigation. Mr. Justice Kershman met with the parties together and individually. The parties eventually arrived at an agreement, the terms of which were in the Minutes of Settlement signed before Mr. Justice Kershman on April 13, 2017.
• The Minutes of Settlement included a term requiring the parties to sign a Full and Final Release, including a Lawyer’s Professional Indemnity Company standard release (in paragraph 6 of the Minutes of Settlement). On April 17, 2017, counsel for Sarazen Realty circulated a draft Full and Final Release for counsel’s review and comment. On June 16, 2017, Mr. Dixon e-mailed Sarazen Realty’s counsel advising that Mr. McTaggart was prepared to sign the Full and Final Release. On June 16, 2017, Mr. McTaggart signed the proposed Full and Final Release.
• On June 14, 2017, Mr. Dixon forwarded to counsel a copy of his client’s proposed LawPRO Full and Final Mutual Release. Mr. McTaggart signed this document on June 14, 2017. Sarazen Reatly’s counsel requested minor changes in relation to the scope of the release as it relates to the Bisson brothers. Mr. Dixon and Sarazen Realty’s counsel are in agreement with respect to the suggested modifications.
• The Minutes of Settlement required LawPRO to make a payment on behalf of Mr. McTaggart to the Plaintiff in the amount of $25,000 within 30 days. On May 29, 2017, Mr. Dixon’s office was sent a cheque from LawPRO payable to Sarazen Realty’s counsel in trust. Mr. Dixon remains in possession of LawPRO’s contribution to the settlement and holds it in trust pending the outcome of Sarazen Realty’s motion confirming the parties’ settlement agreement of April 13, 2017.
The Law and Analysis
[21] Further to my review of the evidence provided by the parties, I turn to the law. As per Rule 20.01(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, after a defendant has delivered a Statement of Defence or served a Notice of Motion, a plaintiff may move for Summary Judgment on all or part of the claim in the Statement of Claim. As per Rule 20.04(1), the Court shall grant a Summary Judgment if it is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence. The framework for the granting of Summary Judgments is stated by the Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87. The Court states, at paras. 47 and 49:
Summary judgment motions must be granted whenever there is no genuine issue requiring a trial. …There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.
[22] Furthermore, Hryniak sets out the obligations of a judge on a motion for Summary Judgment. In order for a judge to first determine if there is a genuine issue requiring a trial, he/she must make a determination based only on the evidence before him/her without using the new fact-finding powers. The new powers can be used by a judge if there appears to be a genuine issue requiring a trial. The new powers under Rule 20.04(2.1) include the weighing of evidence, evaluating the credibility of a deponent and drawing any reasonable inference from the evidence. In addition, as per Rule 20.04(2.2), a judge may order that oral evidence be presented by one or more parties, with or without time limits on its presentation. As per Ray J. in Ali v. Toyota Canada Inc., when a defendant brings a motion for Summary Judgment, the plaintiff must put his/her best foot forward (2016 ONSC 5909, at para. 8).
Issue No. 1 - Is there a genuine issue requiring a trial with respect to the claims raised against Sarazen Realty and Mr. Sennett?
[23] The Bisson brothers argue that a contract was not in place between the parties. They rely on Sahota v. Sahota, 2016 ONSC 314, 344 O.A.C. 309. The facts in Sahota are much different from the facts of this case. In Sahota, it was a question of fraudulently removing names from title to a number of residential properties which the two couples owned. The parties had on-going discussions to resolve the litigation and they reached a tentative agreement. A third party to the action was not part of the negotiations that led to the tentative agreement. The third party brought a motion seeking to enforce the settlement agreement which he claimed was binding against all of the parties. The Divisional Court stated, at para. 16, that:
In order to prove a settlement had been reached, Geller must establish that: (1) there was a mutual intention on the part of himself and the other parties to create a binding contract; and (2) the parties reached an agreement on the essential terms of that contract. It is not necessary for formal settlement documents to be executed before a settlement may exist, as long as there is evidence of the necessary mutual intention to reach a final agreement, and the essential terms of that final agreement can be identified. The court may consider conduct subsequent to the purported agreement to determine whether the parties had manifested the intention to enter a binding contact.
[24] In order to determine if a settlement was reached, this Court must review the evidence presented and determine if there was a mutual intention on the part of the parties to create a binding contract. In this matter, the evidence shows that the parties negotiated for a period of approximately five and a half hours. All of the parties were represented by counsel during the negotiations. This is litigation with multiple parties: Sarazen Realty, the Bisson brothers and Mr. McTagggart are the parties in the originating Statement of Claim, and the Bisson brothers, Sarazen Realty and Mr. Sennett are the parties in the Counterclaim. All of these parties signed the Minutes of Settlement with Mr. Justice Kershman on April 13, 2017.
[25] The second part of the test set out in Sahota is whether or not the parties reached an agreement on the essential terms of that contract. The Minutes of Settlement signed on April 13, 2017 contain the following terms:
• two clauses regarding the payments to be made to Sarazen Realty by the Bisson brothers and Mr. McTaggart;
• a payment structure proposed by the Bisson brothers that was incorporated for their payment of $225,000;
• the parties would sign a Full and Final Release including a LawPRO Standard Release;
• a confidentiality clause may be contained in the Release;
• counsel for Mr. McTaggart would take out an order on consent for the without costs dismissals of the claims;
• the dismissal order would not be taken out until the last payment cleared the bank;
• the Releases are to be held in escrow until the final payment cleared;
• the matter is resolved, inclusive of the costs and interest, in the amount of $950,000 to be received by Sarazen Realty; and
• in the event of any issues that arise in the course of this settlement, the parties are to attend before Mr. Justice Kershman.
[26] In this case, it is clear from the list of the terms of the Minutes of Settlement that the essential terms of the contract were reached by the parties. All of the parties initialled each page and signed the Minutes of Settlement.
[27] Counsel for the Bisson brothers urged me to consider their conduct after they signed the Minutes of Settlement. According to Sahota, the court may consider conduct subsequent to the agreement to determine whether the parties had manifested the intention to enter a binding contact. It is important to note that the Divisional Court uses the term “may”.
[28] One of the main issues raised in Mr. Marcel Bisson’s Affidavit is that he and his brother are Francophones and they did not understand much of the proceedings at the Pre-trial Conference, which were in English. Consequently, the Bisson brothers are of the view that they did not really know what they were signing when they signed the Minutes of Settlement. However, Mr. Dixon and Mr. Sennett’s evidence supports that each party at the Pre-trial Conference had their respective legal representative. The Bisson brothers were not self-represented litigants. Mr. Sennett’s Affidavit sworn on June 21, 2017 states that the Pre-trial Conference proceeded with the consent of the parties knowing that Mr. Justice Kershman is not bilingual. In addition, Mr. Sennett affirms that the Minutes of Settlement were reviewed by the Bisson brothers throughout the Pre-trial Conference. The issue of not properly understanding the proceedings because they were in English was not raised by the Bisson brothers in front of the other parties. The Bisson brothers could have stopped the negotiations, but instead they stayed and signed the Minutes of Settlement. These actions by the Bisson brothers demonstrate that they willfully signed the Minutes of Settlement and knew what they were signing.
[29] There is a significant issue with the Bisson brothers’ language argument. The Bisson brothers retained Mr. Sennett and Mr. McTaggart, both unilingual Anglophones, to assist them with the sale of their family farm. A reasonable person would assume that as Francophones, if the Bisson brothers had difficulty understanding English, they would have retained the assistance of a real estate broker and a real estate lawyer who are at least bilingual. However, they did not and proceeded in English. In addition, all of the Bisson brothers’ pleadings up to the Pre-trial Conference were in English. The Bisson brothers’ actions speak volumes: they signed the Minutes of Settlement, have had second thoughts and are now relying on the language argument as a way out. This is not appropriate.
[30] In a recent decision by Madam Justice Parfett in Fernandes v. Goveas, 2016 ONSC 1992, 30 C.C.E.L. (4th) 317, she reviews the concept of the required “meeting of the minds”, at para. 40:
Where the parties have come to the requisite meeting of the minds with respect to all essential terms of the agreement, the agreement is complete and enforceable, even where it may provide for some further formal written document or record of the agreement to be executed. On the other hand, no contract exists if the essential elements of the agreement have not been settled or agreed upon, where terms are missing or have not been finalized, or where there is ambiguity about what the parties have agreed to or the contract is too general or uncertain.
[31] At the Pre-trial Conference, the Bisson brothers were represented by Ms. Lévesque, a bilingual lawyer. One can only assume that they received legal advice from her throughout the process. The Minutes of Settlement were reviewed by the Bisson brothers’ counsel prior to signing. She reviewed them with her clients and then they were signed by the Bisson brothers.
[32] In addition, there was a meeting of the minds in this case with respect to all essential terms of the agreement. Consequently, the Minutes of Settlement are complete and enforceable. The parties came to an agreement and the Bisson brothers cannot withdraw from their obligations under the Minutes of Settlement.
[33] In Excell Stamping Inc. v. Consolidated Recycling Incorporated, 2008 CanLII 12492 (ON SC), binding Minutes of Settlement were entered into and signed by both parties at a Pre-trial Conference. The Defendants refused to sign the Release and the settlement monies owing were not paid. There were issues regarding the form of the release. Justice Clarke stated, at para. 11, that “I find that where (as here) the form of release cannot be agreed to, the parties can always seek a clarification from the court within the framework of the settlement. If the release is not acceptable to either party, there may be further discussion, but neither party is released from the settlement” [emphasis mine].
[34] As in Excell Stamping Inc., the binding Minutes of Settlement the Bisson brothers signed are enforceable. Even if the Bisson brothers were to take the position that the Full and Final Release provided by Sarazen Realty’s counsel and the LawPRO Release provided by Mr. McTaggart’s counsel were not acceptable, the Bisson brothers remain bound by the Minutes of Settlement.
[35] In light of my preceding comments and my review of the evidence provided to this Court, I have determined there is not a genuine issue requiring a trial with respect to the initial Claim and the Counterclaim raised by the Bisson brothers against Sarazen Realty and Mr. Sennett. I have been provided with sufficient evidence in order to enable me to make the necessary findings of fact and apply the law to the facts.
Issue No. 2 - Are there issues requiring a mini-trial?
[36] Based on my finding on Issue No. 1, I am not required to review this issue.
Issue No. 3 - If there is a genuine issue for trial, should this Court make an order specifying what material facts are not in dispute and defining the issues to be tried?
[37] Based on my finding on Issue No. 1, I am not required to review this issue.
Conclusion
[38] For the reasons above, I grant the Summary Judgment Order and dismiss the Counterclaim against Sarazen Realty and Mr. Sennett. I order as follows:
• Sarazen Realty will keep the $700,000 of the purchase deposit;
• the Bisson brothers shall pay to Sarazen Realty the sum of $168,750.00, together with post-judgment interest from April 13, 2017 until the date of the payment, within five days of this Decision, and the balance of $56,250.00 on September 25, 2017;
• LawPRO on behalf of Mr. McTaggart shall pay to Sarazen Realty the sum of $25,000 within five days of this Decision;
• the Bisson brothers and Mr. McTaggart must sign and deliver (a) the Full and Final Release in the form located at Tab 5 of Mr. Greenberg’s Motion Record and (b) LawPRO’s standard Full and Final Mutual Release located at Tab 1C of Mr. Dixon’s Responding Motion Record of the Defendant Paul McTaggart dated July 5, 2017.
Costs
[39] Sarazen Realty and Mr. Sennett are the successful parties in this case. If the parties cannot agree as to costs, they may provide the Trial Coordinator with brief written submissions on costs not exceeding three pages, exclusive of the Bill of Costs. Sarazen Realty and Mr. Sennett will have ten days from the date of this Decision to provide their submissions and the Bisson brothers and Mr. McTaggart will have ten days thereafter to do the same. Sarazen Realty and Mr. Sennett will be allowed a brief reply if deemed necessary, of no more than one page which shall be provided within the next five days.
Justice M. O’Bonsawin
Released: September 5, 2017