COURT FILE NO.: CV-15-2875-00
DATE: 2018 11 21
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
1589680 Ontario Inc.
S. Turton, Counsel for the Plaintiff
Plaintiff
- and -
Toronto Standard Condominium Corporation No. 1441, Valerie Smith, Ann Matyas, Denis Bardetsky, Robert Shaw and Wayne Murdock
N. Brankley, Counsel for the Defendants
Defendants
HEARD: November 2nd, 2018
REASONS FOR DECISION
LEMAY J
[1] This action concerns the use of common spaces in a condominium building. The Plaintiff, 1589680 Ontario Inc. (“158 Inc.) is a tenant in the defendant Toronto Standard Condominium Corporation No. 1441 (“TSCC 1441”). The remaining Defendants are officers and directors of TSCC 1441. On this motion, it is not necessary to distinguish between the Defendants, so I will refer to them all as TSCC 1441.
[2] The action was supposed to proceed to trial during the May, 2018 blitz trial sittings in Brampton. The parties appeared before me for a pre-trial on both the Monday and the Wednesday of the first week of the blitz sittings, and resolved the matter by way of minutes of settlement.
[3] It is clear from the materials that the parties have filed that litigation is going to continue. As a result, 158 Inc. is seeking an Order making the Minutes of Settlement a Court Order. TSCC 1441 opposes this motion on the basis that it is unnecessary and it is inconsistent with the intentions of the parties when they settled this matter.
[4] For the foregoing reasons, the motion to have the minutes of settlement issued and entered as an Order is dismissed. However, I am providing the parties with directions relating to the costs assessment that has been agreed-to.
Background Facts
[5] 158 Inc. rents commercial space in the building owned and managed by TSCC 1441. As I have indicated, the parties were embroiled in litigation over the use of what I will colloquially refer to as “common spaces”. This matter had been in litigation for a number of years, and a trial was scheduled for May of 2018.
[6] After two days of settlement negotiations, the parties were able to reach minutes of settlement dated May 9th, 2018. These minutes of settlement contain provisions dealing with several separate issues, as well as an arbitration clause and other provisions.
[7] While the settlement was reached on May 9th, 2018, the releases were not executed. As a result, the parties had correspondence over what should and should not be included in the releases. They were unable to agree on these terms.
[8] I also note that, almost immediately after the minutes were signed, issues arose between the parties as to whether the minutes were being adhered to by TSCC 1441. I do not intend to resolve those questions. For the purposes of this motion, it is sufficient to note that the parties continue to have issues.
[9] The parties then requested an appearance before me to address issues related to the releases and to whether the minutes of settlement should be enforced as a Court Order. That appearance took place on August 23rd, 2018. At that time, the parties raised issues relating to the scope of the releases, as well as to whether the Minutes of Settlement should be enforced as a Court Order.
[10] During the appearance on August 23rd, 2018, I made a number of observations to the parties about what the release should cover. They have resolved those issues.
[11] At the appearance on August 23rd, 2018, counsel for 158 Inc. asked for an Order enforcing all of the terms of the minutes of settlement. Counsel for TSCC 1441 was not prepared to address this issue, but had asked for an order from the Court to “enforce section 7 of the Minutes of Settlement and grant an Order compelling the Plaintiff to execute and deliver the Release provided by the defendants” (paragraph 17 of TSCC 1441’s factum). However, at the appearance on August 23rd, 2018, TSCC 1441’s counsel was not prepared to address the issue of whether the whole agreement should be made into a Court Order.
[12] At the most recent appearance, I was advised that the question of whether the minutes of settlement should be made into a Court Order remains outstanding. As a result, the parties appeared before me on November 2nd, 2018 to argue that matter.
Issues
[13] The materials that were filed on this motion raise two issues:
a) Should the minutes be enforced as a Court Order?
b) Should any Order be issued to address the assessment of costs?
[14] I will deal with each issue in turn.
Issue #1- Should the Minutes be Enforced as a Court Order?
[15] 158 Inc. argues that the minutes should be enforced as an Order because it is clear that there is going to be further litigation. Counsel for 158 Inc. points out, correctly, that if I do not issue an Order enforcing these minutes, then he will be able to bring an application to have the Minutes enforced by the Court in any event. I reach no conclusions about whether such an application would be successful. In addition, counsel for 158 Inc. argues that TSCC 1441 has changed its position on this motion, and that an Order enforcing the settlement is required so that a costs assessment can take place.
[16] TSCC 1441 disagrees, and argues that the minutes should not be enforced as it is unnecessary to do so, and that the terms of the minutes prevent them from being made a Court Order.
[17] I reject TSCC 1441’s position that enforcing these minutes is unnecessary. The parties started to disagree with each other about the terms and obligations under these minutes almost from the moment that they were signed. As a result, some proceeding is required to enforce the terms of these minutes.
[18] This brings me to the question of whether the minutes permit them to be enforced as a stand-alone Court Order. Although the parties provided me with case-law, none of it was directly relevant. I am required to interpret these minutes of settlement.
[19] The relevant provisions of the Minutes of Settlement state:
Future Disagreements: to the extent that any future disagreements arise between the parties regarding the terms of this settlement, the parties to this settlement acknowledge and agree that they will settle the dispute by engaging in mediation, followed by binding arbitration, in accordance with section 14.01 of By-Law #1, and Appendix B attached thereto.
Dismissal Order: The Plaintiff shall obtain an order dismissing this action as against all defendants on a without costs basis.
[20] There is an ambiguity in these minutes of settlement. In particular, TSCC 1441 argues that the purpose of paragraph 6 is to provide an arbitrator with jurisdiction to resolve all outstanding future disputes. 158 Inc. opposes this position and argues that the Arbitrator’s purpose is to address issues relating to the “terms of the minutes”, and that the enforcement of the minutes is a separate issue. As a result 158 Inc. argues that the Court has jurisdiction, without any further proceeding being brought, to Order the enforcement of these minutes.
[21] I accept the position of TSCC 1441 on this issue for three reasons. First, the more commercially reasonable interpretation of paragraph 6 is that it was intended to clothe an arbitrator with jurisdiction to resolve disputes between the parties over how the minutes were being implemented. Given the nature of the agreement, this would not be an unusual clause for the parties to have included.
[22] Second, it would be pointless to sign minutes of settlement including an arbitration clause, and then limit the arbitrator’s jurisdiction to resolving the terms of the minutes of settlement that had already been agreed to. Every word in an agreement should be given meaning, and the only meaning that can be given to “Future Disagreements” is that they are disagreements that will or could arise in the future.
[23] Finally, paragraph 6 has to be read in context with paragraph 8. Under paragraph 8, the only Order the parties have envisioned is one that results in this action being dismissed without costs. That is the Order that will issue.
Issue #2- The Assessment Officer
[24] As I have noted above, 158 Inc. is required to obtain an Order dismissing this action without costs. However, there is the issue of whether an assessment officer has jurisdiction to address issues of cost.
[25] The parties’ agreement contains a provision on costs that states:
- Costs: The Plaintiff shall receive partial indemnity costs of this action in amount to be agreed upon or assessed, and subject to the Defendants’ entitlement to the outstanding cost award currently owed by the Plaintiff to the Defendants.
[26] It is clear that the Plaintiff is entitled to an assessment of costs if the parties are not able to reach an agreement on the costs of the proceeding.
[27] Given the amount of time spent on the details of these minutes, including Court time, I do not want there to be any misunderstandings. As a result, I am directing that, if the parties are unable to reach an agreement over the costs of the action, then there will be an assessment of costs by an assessment officer regardless of any Court Order dismissing this matter without costs.
Conclusion and Costs
[28] For the foregoing reasons, the motion by 158 to enforce the minutes of settlement is dismissed, and an Order shall issue dismissing the action without costs. This Order is subject to my direction that an assessment officer be appointed to assess the costs if the parties are unable to agree, and a provision to that effect should be included in the Order. If the parties cannot agree on the wording of this Order, I may be spoken to.
[29] In terms of the costs of this motion, I encourage the parties to resolve that issue, as there were multiple appearances before me and the issues changed throughout the course of the motion.
[30] In the event that the parties are not able to resolve the costs of this motion, then they may each make written submissions of no more than two (2) single-spaced pages, exclusive of offers to settle, bills of cost and case-law within fourteen (14) days of the release of these reasons.
[31] Any responding costs submissions are to be limited to one (1) single-spaced page, exclusive of case-law. Those submissions are due seven (7) days after the original written submissions are served and filed.
[32] There are to be no extensions on costs submissions without my leave. If no costs submissions are received in accordance with these timelines, then neither party shall be entitled to recover costs for the post-settlement appearances.
LEMAY J
Released: November 21, 2018
COURT FILE NO.: CV-15-2875-00
DATE: 2018 11 21
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
1589680 Ontario Inc.
Plaintiff
- and -
Toronto Standard Condominium Corporation No. 1441, Valerie Smith, Ann Matyas, Denis Bardetsky, Robert Shaw and Wayne Murdock
Defendants
REASONS FOR JUDGMENT
LEMAY J
Released: November 21, 2018