COURT FILE NO.: 5965/14

DATE: 2018 03 08

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

MATTHEW ELDRIDGE

M. Jasmine Sweatman, for the Applicant

Applicant

• and -

STEVEN BUCHAK, personally and as Estate Trustee of the Estate of SOFIA BOJECZKO

Romeo D’Ambrosio, for the Respondents

Respondents

HEARD: February 5, 2018

RULING ON APPLICATION TO ENFORCE SETTLEMENT

Justice Thomas A. Bielby

INTRODUCTION

1The Applicant seeks to enforce a settlement. He alleges that on November 7, 2015, the Respondents accepted the terms of the Applicant’s offer.

2The Respondents acknowledge such a settlement but allege it was dependent on a condition precedent that was not met in a timely fashion.

FACTS

3The Applicant (Matthew) is the grandson of the deceased, Sofia Bojeczko (Sophia), who died on April 22, 2014. Matthew has a brother named David Eldridge (David). Steven Buchak (Steven) is Sophia’s son.

4In July, 2008 Sofia appointed David and Matthew as her attorneys for property and personal care. It is alleged that, as such, David improperly removed $30,000 from Sophia’s accounts, for his own use.

5As a result Sophia, in 2010, amended her Will originally made in 2008, treating the monies, as an advance on David’s inheritance.

6In March, 2012 Sofia made a new Will which disposed of her property in a different manner than her previous Wills.

7Upon Sophia’s death, Matthew brought this application contesting the 2012 Will. The administration of Sophia’s estate has been suspended pending the resolution of this application.

8Through a series of letters dated November 2, 3,10, and 17, 2015, the following settlement was reached:

(a) The settlement would be subject to court approval.

(b) The Applicant was to receive $100,000 from the estate, payable within 30 days of court approval.

(c) The parties were to bear their own legal costs of the action/application, except that the Respondents were to contribute $1,130 to the costs incurred in obtaining court approval.

(d) The parties would exchange full and final releases following the court order approving the settlement.

(e) The Applicant was to serve a copy of the application on David.

(f) The settlement was conditional upon David either not appearing on the return date of the application or not opposing the settlement.

(g) The proposed order approving the settlement was to contain the following provisions:

(i) the deceased’s Will, prepared in 2012, was to be her Last Will and Testament;

(ii) the estate would no longer be suspended; and

(iii) the estate registrar was to return the Certificate of Appointment of Estate Trustee with a Will to Steven.

9In accordance with the terms of settlement, Matthew’s lawyer, on December 3, 2015, sent a letter to David notifying him of the terms of the settlement and gave him notice of the motion filed to approve the settlement, together with a copy of the Notice of Application dated November 26, 2014, the Application Record, dated November 26, 2015, and a Notice of the Return of the Application dated December 3, 2015, with a return date of December 30, 2015.

10In the letter David was asked if he would be taking a position with respect to the settlement and whether he would be attending court on December 30, 2015.

11On December 9, 2015, Mr. Kesarwani, David’s lawyer, served but did not file, a Notice of Appearance and sought an adjournment of the December 30th date.

12The matter was adjourned a number of times at the request of David’s lawyer, who indicated he wished to file responding material.

13On March 3, 2016, Mr. Kesarwani was advised that the application was “spent”, as a result of an order made in October, 2015 requiring a trial of the matter. He was advised that the purpose of the Notice of Return of the Application was to secure a date to deal with the settlement.

14On March 8, 2016, Steven’s lawyer wrote to Mr. Kesarwani advising him that David would have to take the appropriate action by April 22, 2016 (the second anniversary of the death of Sophia), otherwise his claim would be barred by virtue of the Limitations Act.

15On April 19, 2016, an Application was commenced by David, contesting the 2012 Will and seeking similar relief as sought by Matthew. David’s application did not challenge Matthew’s settlement or attempted to set aside the settlement.

16Steven, in response to David’s application, served a Notice of Appearance.

17David’s application was adjourned four times, the last adjournment taking place on October 20, 2016, when the matter was adjourned to January 4, 2017.

18On January 4, 2017, David’s lawyer had not confirmed the date with the court and no one attended on behalf of David. The matter was accordingly noted as, withdrawn, because no one appeared.

19It was not until September, 2017 that the parties and their counsel were made aware of the January 4th date and the fact the application was deemed withdrawn.

20As a result, during the spring of 2017 various letters were sent to Mr. Kesarwani inquiring if he was still acting for David and inquiring as to their intentions. No real response was forthcoming nor were any steps taken to pursue the application.

21In August, 2017 given this inactivity, counsel for Matthew advised Steven’s counsel that she was returning to court to ask for an order enforcing the settlement. Steven’s lawyer then advised her that as a result of David’s application, he was clearly opposing the settlement thereby there was no settlement as a pre-condition had not been met.

22By email dated August 10, 2017, Steven’s lawyer retracted, in writing, Steven’s offer to settle.

23By Notice of Return of Application dated August 21, 2017, counsel for Matthew sought to return to court, the application started by David and as a result, on September 18, 2017, became aware of what had occurred on January 4th in relation to David’s application. Upon learning of this, counsel for Matthew took the position that on January 4, 2017, David’s opposition to the settlement was removed, well before Steven’s withdrawal of his offer.

24As a result, counsel for Matthew advised that she intended to seek the court’s approval of the settlement.

25Ultimately, David brought a motion to reinstate his application. The motion was heard by Miller J. on January 31, 2018, and was dismissed. The motion was opposed by Matthew while Mr. Kesarwani advised the court that Steven did not oppose the motion. No one appeared on the motion on Steven’s behalf.

26In his motion, counsel for David took the position that the non-attendance on January 4th was due to inadvertence and that there was no intention of abandoning the application.

27In her endorsement Miller J. spoke of the, “troublesome aspects of David’s evidence”. She concluded that he had not adequately explained the delay and the motion was not brought promptly. Further, there was presumed and actual prejudice to Matthew if the Application was reinstated.

ARGUMENT

28Counsel for the Applicant submits that as a result of the January 4th endorsement David’s opposition was negated. Certainly, the decision of Miller J., subject to any appeal, means David cannot oppose Sophia’s 2012 Will, and as a result, the settlement ought to be enforced, as the condition has been met.

29Counsel for Steven submits that the settlement is unenforceable. He submits that the settlement was made to provide the estate certainty as to the claims against it and to allow the administration of the estate to proceed based on Sophia’s 2012 Will. No further costs would be incurred in continued litigation.

30It is submitted that David did, in fact, oppose the settlement by challenging the validity of the 2012 Will.

31It is submitted that as a result of David’s application, the estate has had to incur further legal costs which impact on the fairness and acceptability of the settlement. If the settlement is enforced, Matthew would be paid $100,000 and the remaining beneficiaries of the estate would have to bear the additional legal expenses.

32Steven’s counsel submits that even before David commenced his application, counsel for Matthew was aware that David was challenging the settlement and relies on a letter dated March 3, 2016, from Matthew’s counsel to Mr. Kesarwani.

33The letter stated that as a result of David not approving of the settlement, the matter would not be before the court on March 10th, when approval of the settlement would be sought. Steven’s counsel submits that this letter is an admission of David’s opposition.

34Counsel for the Respondents submits that the deal is “long gone”. Subsequent to the reaching of the settlement there have been two years of litigation and further costs. To enforce the settlement would be financially prejudicial to Steven and the estate.

35It is also submitted that a lot of this time and costs could have been avoided if Matthew had added David as a party in his original application.

36On these points counsel for Matthew submits that counsel for Steven did not appear before Miller J. and did not incur the expense of responding to the motion or preparing for an attendance in court and argument.

37Further, she submits the estate could have sought costs against David and chose not to do so.

38I was also advised that David was aware of the return of this matter before me and did not appear to oppose the settlement.

39David has not attempted to participate in this matter, apart from initially filing a Notice of Appearance. He has not brought a motion to be made a party to this matter, which is now an action.

40Counsel for Matthew submits that there are no temporal references in the settlement. There was no time frame in which the conditions were to be met and the settlement was to be concluded.

41Finally, it is argued on behalf of Matthew that David did not oppose the payment of monies to Matthew. He only sought the same relief for himself.

ANALYSIS

42I agree with the submissions that a settlement is a contract. That point is not contested. There was a mutual intention to create a binding agreement (Olivieri v. Sherman 2007 ONCA 491, para. 41).

43I find that the conditions in the settlement related to David were a condition precedent and in that regard rely on Turney v. Zilka 1959 12, as noted at paragraph 35 of the Respondents’ factum.

44I find that pursuant to Rule 38.08 on January 4, 2017, David was deemed to have abandoned his application. As a result of Miller J.’s refusing to reinstate, it remains so.

45Because David was not a party to Matthew’s application, the condition was necessary to bring finality to the settlement.

46While it can be argued that David never challenged the amount of monies to be paid to Matthew, he did challenge the validity of the 2012 Will. It was a term of the settlement that, in effect, the 2012 Will was to be validated and the administration of the estate, in accordance with that Will, be allowed to proceed.

47Accordingly, David, by challenging the 2012 Will, opposed the settlement.

48I find that by March, 2016, and certainly in April, 2016 when David commenced his application, and prior to any return date for Matthew’s application, it was known that David opposed the settlement.

49By August, 2017 counsel for Steven made it clear that it was their position that there was no settlement and withdrew their offer. While it is questionable who made the offer it was clear that the Respondents did not feel they were bound to the settlement.

50I accept the following statement as set out in Stonehocker v. King 1993 CarswellOnt 2981, para. 21:

The police of the courts is to encourage settlement of litigation. The high cost of litigation, the delay in obtaining judgments, the delays in having a courtroom and judge available, make it desirable that the parties settle actions wherever possible.

51Nevertheless, once David opposed the settlement, in my opinion, it failed. It was no longer binding in the face of additional litigation, and the passage of more than two years, regardless of whether and when such opposition was removed.

52In regards to the argument that Steven could have sought costs against David in relation to David’s application, I have no knowledge about David’s financial wherewithal, and whether costs, if ordered, would be collectible. I do accept that the estate has had to incur further costs and delay as a result of David’s opposition to the 2012 Will.

53In regards to the argument as to there being no temporal requirement in the condition, a plain reading of the settlement is that it was conditional on David not opposing. David did oppose the settlement which relied on the authenticity of Sophia’s 2012 Will. Therefore the condition was not met. There was nothing in the settlement as to what would occur if the opposition was eventually removed or suggesting a time frame for resolving such opposition.

54Once opposition was established, regardless of the status of David’s application on January 4, 2017, and the subsequent ruling of Miller J., whether it is appealed or not, the settlement was unenforceable.

RULING

55As a result, I find that there is no settlement existing between the parties. The Applicant’s motion/application to approve the settlement is dismissed.

56If the parties cannot agree on costs I will receive written submission of no more than three pages, doubled spaced, together with a bill of costs, within 21 days of the release of this judgment.

Bielby J.