2018 ONSC 2221
COURT FILE NO.: 11663/17
DATE: 2018/04/05
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: 620369 Ontario Inc. c.o.b. as Herman’s Building Centres, Plaintiff/Respondent
AND: Chris Dunham, Defendant/Appellant
BEFORE: The Honourable Justice D. L. Edwards
COUNSEL: Rachel Goerz, for the Plaintiff/Respondent
Margaret A. Hoy, for the Defendant/Appellant
HEARD: April 4, 2018 at Welland
E N D O R S E M E N T
[1] The defendant, Chris Dunham, brings this motion for judgment in accordance with the settlement that he submits he reached with the plaintiff, 620369 Ontario Inc.
[2] The plaintiff submits that the defendant repudiated the settlement agreement because he did not pay the agreed upon funds and did not sign the Minutes of Settlement.
[3] The defendant wishes to enforce the settlement and asserts that the plaintiff has been acting unreasonably in dictating the terms of the Minutes of Settlement and by not providing a full and final release as part of the documentation.
[4] The litigation history on this matter began in Small Claims Court and resulted in the plaintiff getting a judgment against the defendant on March 8, 1984 in the amount of $3,527.39 plus costs and post judgment interest. The plaintiff commenced a new action against the defendant on July 23, 2015 seeking judgment on the same terms as the original judgment plus legal fees and 11% interest. Judgment was obtained on May 11, 2017.
[5] The defendant served a Notice of Appeal on June 9, 2017. On September 11, 2017 the defendant was ordered to pay $8,000 as security for costs into court, and on October 13, 2017 he was ordered to pay the plaintiff $1,588.60 in costs. On September 26, 2017, the defendant brought a motion seeking leave to appeal the security for costs motion, which was dismissed on February 9, 2018 and the defendant was ordered to pay the plaintiff costs of $1,845.68.
[6] On February 21, 2018 it was ordered that should the defendant fail to post the security for costs by March 9, 2018 the plaintiff may proceed by ex-parte motion to dismiss the defendant’s appeal and the defendant was ordered to pay the plaintiff $1,500 for costs arising from that motion.
[7] On March 21, 2018 the plaintiff obtained an order dismissing the Appeal, ordering costs on the judgment of $899 and costs of the Appeal of $4,000.
[8] On March 28, 2018 I adjourned this motion, and a $100 cost award was made against the defendant.
[9] The parties exchanged letters on March 6, 2018. The plaintiff’s counsel accepted the defendant’s offer of $24,000 and stated that “… the resulting Minutes of Settlement would have our standard terms that would include your client consenting to judgment, that you agree to approve all draft orders as to form and content, that you abandon your appeal, and will cooperate in any required steps to ensure that there are no impediments to my client enforcing this judgment if need be.”
[10] The parties could not agree upon the form of the Minutes of Settlement. The defendant’s counsel insisted that a separate Full and Final Release be provided. Initially, the plaintiff required that its standard form be utilized, and this did not contain a specific release. After this motion as commenced, the plaintiff offered to amend the Minutes of Settlement to include the following phrase: “Provided the terms of these Minutes of Settlement are complied with, the parties mutually fully and finally release one another from all claims related to the facts and issues raised in the New Claim”. “New Claim” is defined as the Small Claims Court action commenced against the defendant on July 23, 2005.
[11] The defendant’s counsel asserts that she is entitled to a full and final release and that the provision of that release is an implied term of the settlement.
[12] The first draft of the Minutes of Settlement that the plaintiff’s counsel provided did not contain any specific words releasing the defendant. Rather, it recited all of the various steps taken in relation to the original 1984 Small Claims Court judgment. It also recited that the parties had agreed to settle the matter on the terms set out below. Further, in the operative section of the document the parties stated that the recitals were true and accurate.
[13] I am satisfied that the Minutes of Settlement themselves implied a release by virtue of the recital which the parties confirmed was true, and by the wording that the parties “have agreed to settle this matter on the terms set out below”.
[14] It is important to note that what was being settled was an outstanding judgment against the defendant. As an alternative route, the parties could have complied with Rule 59.07, whereby the plaintiff would have provided a Satisfaction Piece, as it was a judgment that was being settled. No release would have been necessary in that event.
[15] There is nothing before me to suggest that the settlement was intended to encompass other causes of action that either party may have against the other. It was strictly limited to the debt owed by the defendant to the plaintiff as a result of the mentioned Small Claims Court judgment. Therefore, a full and final release regarding any claims which the plaintiff might have against the defendant, would not be appropriate.
[16] I agree that it would have been preferable to have in the first version of the Minutes of Settlement, specific language whereby the plaintiff released the defendant from the debt reflected by the judgment. Therefore, the language which the plaintiff’s counsel added to the Minutes of Settlement and provided to defence counsel after this motion, is preferable. However, in light of the defendant’s counsel’s acceptance that the standard form of documentation of the plaintiff would be utilized, she cannot insist upon her language being employed as I am satisfied that the first version of the Minutes of Settlement “settled” the claim of the plaintiff arising by virtue of the Small Claims Court judgment.
[17] In light of the defence counsel’s insistence that her version of the documentation be employed, the defendant did not pay the funds or sign the Minutes of Settlement. By that course of conduct I find that the defendant repudiated the settlement. Therefore, the defendant cannot enforce the settlement. Further, pursuant to Rule 49.09(b) the plaintiff was at liberty to proceed as if the settlement was never reached.
[18] I dismiss the defendant’s motion.
[19] The plaintiff is entitled to its costs of this motion. In light of the drafting of the initial form of the Minutes of Settlement, I have reduced the costs somewhat. I order that the defendant pay costs to the plaintiff in the amount of $1,500.
D. L. Edwards J.
DATE: April 5, 2018
2018 ONSC 2221
COURT FILE NO.: 11663/17
DATE: 2018/04/05
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: 620369 Ontario Inc. c.o.b. as Herman’s Building Centres
AND: Chris Dunham
BEFORE: Justice D. L. Edwards
COUNSEL: Rachel Goerz, for the Plaintiff/Respondent
Margaret A. Hoy, for the Defendant/Appellant
ENDORSEMENT
D. L. Edwards J.
DATE: April 5, 2018