minicounsel

CITATION: Sarazen Realty v McTaggart and Bisson, 2017 ONSC 7659

COURT FILE NO.: CV-15-65350

DATE: 2017/12/20

BETWEEN )

Sarazen Realty Inc. COB Coldwell Banker ) Sarazen Realty Brokerage )

Plaintiff (Moving Party) )

and - )

Paul McTaggart, Marcel and Jean-Georges ) Bisson )

Defendant (Responding Party) )

Steven J. Greenberg

Denis Cadieux for Marcel and Jean-Georges Bisson

ENDORSEMENT

O'BONSAWIN, J.

1Sarazen Realty has brought a motion for an Order of this court finding that Marcel and Jean-Georges Bisson are in contempt of court for deliberately refusing to follow the Judgment of this Court dated October 11, 2017 which relates to my Reasons for Decision dated September 5, 2017 and my Endorsement as to Costs on October 11, 2017.

2The matter of contempt of court in civil procedures has more recently been reviewed in Carey v. Laiken [20 15] 2 R.C.S. Although the facts are distinguishable, the principles in enunciated in Carey apply to this case. In order for civil contempt to be determined, there are three elements that must be established beyond a reasonable doubt.

3The first element is that the order alleged to have been breached "must state clearly and unequivocally what should and should not be done" ( Carey, para. 33). In this case, paragraph 4 of the Judgment was clear: "THIS COURT FURTHER ORDERS AND ADJUGES that Marcel

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Bisson and Jean Georges Bisson and Paul McTaggart shall sign and deliver: 1. a full and final release in the form as attached as Schedule A of this Judgment; and 2. LawPRO's standard full and final release located at Schedule B of this Judgment." It has been shown beyond a reasonable doubt that paragraph 4 of the Judgment is clear, Marcel and Jean-George Bisson were ordered to sign the Full and Final Releases.

4The second element is that the party alleged to have breached the Order must have had actual knowledge of the Order ( Carey, para 34). There is correspondence between the parties that show beyond a reasonable doubt that Marcel and Jean-Georges Bisson had knowledge of the Order (see letters dated November 14, 2017 and November 20, 2017 from Mr. Greenberg to Mr. Gibson and Mr. Gibson's letter dated November 20, 2017 to Mr. Greenberg).

5The third and last element is that the party allegedly in breach must have intentionally failed to do the act that the Order compels (Carey, para 35). Even today, counsel for Marcel and Jean-Georges Bisson advised this Court that his clients refuse to sign the Full and Final Releases because they want to maintain their complaint against Mr. Sennett. It is clear beyond a reasonable doubt that Marcel and Jean-Georges Bisson continue to intentionally refuse to sign the Full and Final Releases.

6For the reasons above, I find that Marcel and Jean-Georges Bisson are in contempt of cowi.

7Mr. Greenberg made submissions for a j ail te1m. Mr. Cadieux made submissions of a possible fine.

8As a consequence of finding Marcel and Jean-Georges Bisson in contempt of court for their failure to sign the Full and Final Releases as so ordered by this Court, in accordance with Rule 60.11(5)(c), I Order that Marcel and Jean-Georges Bisson pay the fine of $20,000 forthwith.

9I also Order and Declare that Sarazen Realty Inc., COB Coldwell Banker Sarazen Realty Brokerage, Keith Sennett are deemed to be released from any and all claims, actions, causes of action, demands for monies, losses, damages, indemnity or injuries arising and related to Court File No. 15-65083 in the te1ms appended as Appendix "A" to this Endorsement.

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[1O] In addition, I order that Marcel and Jean-Georges Bisson pay Sarazen Realty's legal costs in the amount of $6,780.00 at a full indemnity basis within 30 days of this Endorsement.

Justice M. O'Bonsawin

Released: 2017/12/20

CITATION: Sarazen Realty v McTaggart and Bisson, 2017 ONSC 7659

COURT FILE NO.: CV-15-65350

DATE: 2017/12/20

SUPERIOR COURT OF JUSTICE ONTARIO

Sarazen Realty Inc. COB Coldwell Banker Sarazen Realty Brokerage

Plaintiff (Moving Party)

and -

Paul McTaggart, Marcel and Jean-Georges Bisson

Defendant (Responding Party)

ENDORSEMENT

Justice M. O'Bonsawin

Released: 2017/12/20

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I. FULLAND FINAL RELEASE

IN CON$1DERATION of the payment of $950,000.00 according to the payment

schedule contained in the minutes of settlement attached hereto to Sarazen Really Inc. (hereafter the "Releaser'') by each of Marcel Bisson, Jean Georges Bisson and Paul McTaggart. (herea.fter the "Releasees ), and the further payment of $1 by each of the "Releasees" to Keith Sennett (hereafter the "Defendant Sennett to Counterclaim") and Sarazen Realty Inc., and in consideration of the Minutes of Settlement entered between all parties on the 13 April 2017 pursuant to which the parties thereto have settled all outstanding claims, issues and disputes and other issues raised or which might have been raised in an Action in the Ontario Superior Court File # 15-65083 whether by claim, cross-claim or counterclaim affecting any of the parties to the Minutes of Settlement ( hereafter the "Minutes"), a copy of which Is attached hereto as Schedule "A". and for other good and valuable consideration, the receipt.and sufficiency of all of which is hereby acknowledged by the undersigned,

The "Releasor• for. themselves,lhelr respective associated, affiliated, predecessor, successor and parent companies and partners as wen as their respeclive officers, directors, shareholders, employees, servants , agents, heirs. administrators, successors and assigns and any party or parties who claim a right or Interest through them,

The WReleasees" for themselves, their respective associated, affiliated, predecessor, successor and parent companies and partners as well as their respective officers, directors, shareholders. employees, servants. agents.heirs, administrators. successors and assigns ano any party or parties who claim a right or interest through them, and

·The "Defendant Sennelt by counterclaim" for himself, his respective associated, affiliated. predecessor.success-Or and parent companies .and partners as well as their respective officers, directors, shareholders, employees, servants, agents, heirs, administrators, successors and assigns and any party or parties who claim a right or interest through him.

I HEREBY RELEASE, ACQUIT AND FOREVER DISCHARGE

The "Releaser" releases the "Releasees"

I The "Releasees" release the "Releasor" and "The Defendant Sennelt by counterclaim; ALL WITHOUT QUALIFICATION OR LIMITATION,SAVE AS OTHERWISE HEREIN

PROVIDED:

from any and all actions, causes of actions; suits. debts, claims, demands, damages, lbsses, costs, injuries. liability, agreements and -contracts, of every !<ind, character or nature whatsoever whether arising at common law. by contract. by statute, or hereafter may have, whether presently known or unknown. suspected or unsuspected, disclosed or undisclosed,actualor potential,from any source or origin,including without limitation,

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I any matter arising out or, related to or in respect cH any cause, matter, or thing in connection with or arising in respect of or from

I 1. The commission payable on the sale of land known as 2564 101

line road

../-'?concession 1 SPT lot 4 resulting in an agreement of purchase and sale dated

.,z..Z1, 2014;

D.-.-<.-;;{

Breach of any o91igation or duty to by Keith Sennett or Sarazen Realty Inc. to Marcel Bisson and Jean Georges Bisson;

Any and all alleg;:itions which were made, or which could have been made under Ontario Superior Court or Justice Court File No. 15-65083 commenced at Ottawa or counterclaim or cross cla m· arising from this action and included in this release.

WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, the parties

hereto declare that the intent of this Full and Final Release is to conclude all issues

arising from the matters set forth above and

Release Is intended to cover.

iiis understood and agreed that

this

AND FOR THE SAID CONSIDERATIONit is agreed and understood that in respect of the matters set forth above the parties will not make q claim orlake any procee.drngs against any other party, person or corporation who might claim, in any mann_r or forum, contribution or Indemnityin common law or in equity, or under the provisions of any statute or regulation, including the Negligence Act and the

the

amendments thereto and/or under any successor legislation thereto, and/or under

Rules of Civil Procedure, from the parties discharged by this Full and Final Release, in connection with the matters outlined above..IT rs AGREED AND UNDERSTOOD that if

any party commences such an action, or takes such proceedings, then the other parties (or any of them) are addedlo such proceedings in any manner whatsoever, justified in

will

law or not, the party who commenced the action or took such proceeding

Immediately discontinue the proceeding or action, and such party will be jointly and severally liable·to the other parties for the legal costs Incurred in any such proceeding or action, on a solicitor and his own client (completeindemnity) scale. This Full and Final RelEiase shall operate. c9nclusively as an estoppel In the event of any claim, action, complaint or proceeding which might have been brought in the future by any party hereto with respect to the matters covered in this Full and Final Release. This Full and Final Release may be pleaded in the event any such claim, actl.on. complaint or

any

proceeding is brought, as a complete defence and reply, and may be relied uponin

proceedinglo dismiss th claim. action, compiaint or proceeding on a summary basis and no objection will be raised by any party hereto in any subsequent action that the other parties in the subsequent action were not privy to the information of this Release.

ANO THE PARTIES HEREBY CONFIRM that they have sought and obtained independent legal advice and authorized and instructed their solicitors to settle the aforementioned outstandil'.lg matters in the terms outlined herein.

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I AND FOR THE SAID CONSIDERATION the parties hereby represent and warrant that they have not a!)signed to any person, firm or corporation any or the actions, causes of action, claims-, debts, suits or demands of any nature or kind which it has released by the Full and Final Release.

AND IT JS HEREBY DECLARED that the terms of this settlement are fully understood, that the said consideration stated herein is the sole consideration for the Release and !hat the said payment, or promise of payment. is accepted voluntarily for the purpose of making Full and Final compromise in settlement of all claims and proceedings against !he parties hereto, now or hereafter brought, for damages, loss or injury resulting from the matters set forth above.

THE PARTIES HERETO AGREE that .this mutual full and .final release may be executed and delivered in counlerparts by facsimile transmission, electronic transmission,or otherwise, each of which shall be deemed an original.

IN WITNESS WHEREOF the undersigned have executed this Full and Final Release by their hands and seals effective thism,2017

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f f111·1 ., .d ;:.:5,

SIGNED, SEALED & DELNERED SARAZEN EA INC. ?

inlhe presence or ) 1./

) 1_/)

) Per: ,,/;-- M ·· /t1.·,..-· 1 -.

) Ihave 1:1{ rity bing)he ora)ion,.. (>{- {[,_7/0«/ )

) (_.l')t-i N ,f!, -z,< e>(O' .z.J ,

) .

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) NNEn'""

)

) MARCEL BISSON

I JEAN GEORGES BISSON

I PAUL MCTAGGART

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FULL AND FINAL MUTUAL RELEASE

IN CONSIDERATION of the settlement of;

the claims advanced by SARAZEN REALTY INC., c.o.b., COLDWELL BANKER SARAZEN REALTY BROKERAGE ("SARA.ZEN") in the Action advanced by it against MARCEL BISSON and JEAN-GEORGES BISSON (collectively,"the Dissons") and PAUL MCTAGGART;
and the claims advanced by the Bissons, by way of counterclaim against Sarai:en and

KEITH SENNETT;

in Ontario, Superior Court of Justice Court File No. 15-65083 and in consideration of:

the Bissons' payment, or the promise to pay, to Sarazen of the sum of Nine Hundred and Fifty Thousand Dollars ($950,000.00) of lawful money of Canada, by allowing Bissons . to keep the $700,000.00 purchase deposit and releasing same to Sarnzcn, and by making

a fu11her payme11t to Sarazen of $225,000.00; and for other good and valuable consideration, the 1·eceipt and sufficiency of which is hereby acknowledged, the

undersigned,

LawPRO's payment, on bchaJfof Paul McTaggart, of$25,000.00 to Sarazcn, Keilh Sennett, on behalf of himself, his l1eirs,

agents administrators, executors.assigns, successors

and on behalf of any party or parties who claim a right or interest through him,

AND: Sarazen for itself, its present and fonner parent, subsidiaries, affiliates and related companies and each of their respective present and former directors, officers, shareholders, employees, se{vants, agents, administrators, trustees, successors and assigns and any party or parties who claim a right or interestthrough them,

AND Marcel Bisson, on beha lf of himself, his heirs, agents administrators,executors, assigns, successors and on behalf of any party or parties who claim a right or interest through him,

AND ,lean-Georges Bisson, on behalf of himself, his heirs, agents administrators, executors, assigns, successors and on behalf of any party or parties who claim a right or interesl through him,

00153442-1 - 1020-390

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AND:

Paul McTaggart, on behalf of himself, liis present and fonner partners, associates, employees, servants, agent , heirs, administrators, successors, assigns and insurers,

(hereinafter collectively referred to as the "Undersigned" or "the Parties")

HEREBY FULLY RELEASE, REMISE AND FOREVER DISCHARGE

EACH OTHER, without qualification or limitation from any and all claims, actions, causes of action, demands for monies, loses, damages, indemnity or injuries howsoever arising which heretofore rnay have been or may hereafter be sustained by them, as a consequence of the following:

(a) the Bissous' sale of the property known in the City of Ottawa as 2564 1O'b Line

Road ("the sale");

(b) the listing agreement of December 16, 2014 and agreement of purchase and sale

(· of December 23, 2014 (and all amendments thereto and subsequent versions);

the sale;

( (d) any and all issues nrising from the matters referred to above; and

any and all actions, causes of action, clRims or demands of whatsoever nature, whether in contract or in tort or arising as a result of a fiduciary duty or by virtue of any sratute or upon or by reason of any damage, loss or injury arising out of the matters set forth above and, without limiting the generality of the foregoing, from any and all matters that were pleaded in, or could

File

have been reasonably pleaded by way of crossclaim in Superior Court of Ontario, Court

Number 15-65083 (herein the "Action")-

WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, the

l artics hereto declare that the intent of this Full and Final Mutual Release is to conclude all

issues arising from the matters set forth above and from the Action and to Release the Parties

from any claims whatsoever and howsoever arising from the matters set forth above and from the

Action.

AND THE PARTIES HEREBY CONFIRM that they have foll authority nnd capacity to releasetheinespective rights and interests as against ono another and have authorized and instructed their solicitors to settle the Action in the tenns outlined herein .

AND FOR THE SAID CONSIDERATION the Parties hereby irrevocably represent and wnrrant that they have not assigned to any person, ftrm, or corporation any of the actions, causes of action, claims, debts, suits or demands of any nature or kind which they have released by this Full and Final Release.

I 00153442-1 - 1020-390

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AND FOR THE SAID CONSIDERATION it is agreed and understood that no Party to this Full and Final Mutual Release will make or continue any c.laim or take or advance any proceedings again 1 any otJ1cr person or corporation who might claim, in any manner or forum, contribution or indemnity in common law or in equity, or under the provision. of any statute or regulation, including lhc Negligenc£1 Act and the amendments thereto and/or under any successor legislation thereto, and/or under the Rules of Civil Pl'ocedure, from any of the Undersigned, in connection with the matters outlined above and in the l\ction. IT IS AGREED AND UNDERSTOOD that if any Party to this Full and Final Mutual Release should commence or continue such an action, or take or advance such proceedings, and the Undersigned, or any of them, are added to such proceeding in any manner whatsoever, the Party or Parties advancing such a proceedingand/or claims will immediately discontinue the proceedings and/or claims, and such Parties will be joint ly and severally liable to the Undersigned, or those affected, for the legal costs incuffe<l In any such proceeding, on a substantial indemnity cost basis. T11is Full and Final Mutual Release shall operate conclusively as an estoppel in the event of any claim, action, complaint or proceeding which might be brought in the foture by any of the Parties with respect to the ·matters covered by this Full and Final Mutual Release. This Full and Final Mutual Release may be pleaded in the event any such claim, action, complaint or proceeding is brought, as a complete defence and reply, and may be relied upon in any proceeding to dismiss the claim, action, complaint or proceeding on a sumn:iary basis and no objection will be raised by any of the Parties in any subsequent action that the other parties in lhe subsequent action were not privy to formation of tbis Full and Final Mutual Release.

AND IT IS FURTHER UNDERSTOOD AND AGREED that the Parties do not, by the payment set out in this Full and Final Mutual Release or otherwise admit aay liability or obligation of any ind whatsoever ·to one another and such liability or obligation is specifically denied.

AND IT IS HEREBY DECLARED that the terms of this settlement are fully understood, that the consideration stated herein is the sole consideration for this Full and Final Mutual Release and that the said payments are accepted voluntarily for the purpose of making full and final compromise in settlement of all claims and proceedings advanced between, or against the Parties, now or hereafter brought, for damages, loss or injury in respect of the matters set forth above and from the Action.

AND IT JS FURTHER UNDERSTOOD AND AGREED that the fact and

terms of this Full and Final Mutua l Release and the settlement underlying it will be held in confidence ond will receive no publicati on either om( or in writing, directly or indirectly, by the Parties, unless deemed essential on auditors' or accountants' written advice for financial statement or income tax purposes, or for the purpose of any judicial proceed ing, in which event the fact that the settlement agreement is made without any admission of liability will receive the same publication contemporaneously. The Parties will not publish any articles, press releases or make any public statement::; about the matters released herein.

00J 53442-1 - l020-390

THE PARTJES HERETO nmECT, CONFIRM AND ACKNOWLEDGE

that the settlement funds owing shall be paid to Steven Greenberg in trust,as follows:

(a)

(b)

(c)

by the Bissons, the sum of Two Hundred and Twenty-Five Thonsand Dollars ($225,000.00);

the Bissons agree to release the purchase deposit of $700,000.00 to Sarazen;

on behalf of Paul McTaggnrt, the sum of Twenty-Five Thousand Dollars ($25,000.00).

THE PARTIES HERETO IRREVOCABLY direct their respective solicitors to consent to an Order dismissing the Action, with prejudice and without costs.

THE PARTIES ACKNOWLEDGE that they have carefully read this Full and Final Mutual, have had opportunity to seek the advice of a lawyer asto the nature ad effect of the Full and Final Mutual Release, understand all of the tenns in this Pull and Final Mutual Release, and have executed this Full and Final Mutual Release voluntarily and with knowledge of the

f1 consequences thereof.

_ J THE PARTIES HEREBY ACKNOWLEDGE that this Full and Final Mutual Release contains the entire agreement between the Parties hereto, that the terms of this Pull and Final Mutual Release are contractual, are not a mere recital and any breach of these tenns may be enfol'ced against al\y Party in breach, and may give rise to a damages claim again.st any such Pa1ty, or any of them, enforceable by a further legal proceeding.

WE HEREBY AGREE that this Full and Final Mutual Release will be governed by the Laws of the Province of Ontario and that 11ny dispute arising :from this Full and Final Mutual Release will be adjudicated by the Ontario Superior Court of Justice, and the Parties hereby attorn to the exclusive juri sdiction of this Court for tl1is purpose.

IT IS UNDERSTOOD AND AGREED that this Release may be executed in two or more counterparts, each of which shall be deemed to be an original, and that such separate

countetparts shall constitute together one and actual execution.

the same instrument, notwithstanding their date of

IN WITNESS WHEREOF the Parties have exectJted the Full and Final Mutual Release by their hands and seals this day of __, 2017.

I. 001.53442-1 - 1020·390

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111

SIGNED, SEALED AND DELIVERED

in the presence of

Witness

Name (Please Print)

) Keith Sennett

Sarazen Healty Inc. (c.o.b.,Coldwell Banker Sarazen Realty Brokerage

els

Per: _

Name of

Signing Officer: _

Position of

Signing Officer: _

"I HAVE AUTllORlTY TO BIND THE CORPORATION"

SIGNED, SEALED AND DELIVERED

in the presence of

Witness

I Name (Please Print)

I

I 00153442-1 - 1020-390

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) Marcel Bisson

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SIGNED, SEALED AND DELIVERED

in the presence of

I

Witness

Jean-Georges Bisson

Name (Please Print) )

ll SIGNED, SEALED AND DELIVERED

in the presence of

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I 00153442-1. 1020-390

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( Sarazin v. McTaggart et al

'" Plaintiff Defendants

Court File No. 15-65083

SUPERIOR COURT. OF JUSTICE

JUDGMENT

Steven J. Greenberg Barrister & Solicitor

Box 70023 160 Elgin Street Ottawa, Ontario

K2P 2M3

Telephone: 613-739-9988

Fax: 613-736-1323

Gox1Ltcr

•· . ---- -- _liii .. ... liiiiil .iiil - ... ... .ilii! 1illP - _.. ....

Sarazen Realty v. McTaggart and Bisson, 2017 ONSC 7659

Case Summary

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Sarazen Realty v. McTaggart and Bisson, 2017 ONSC 7659

Case Summary

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Cited By (1 case)

McClelland v. Sarazen Realty Inc., 2019 ONSC 315

Cited By (1 case)

McClelland v. Sarazen Realty Inc., 2019 ONSC 315