Court File and Parties
COURT FILE NO.: 67-15 DATE: 2019 03 08 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Worldwide Security Ltd., Plaintiff AND: Larry Miles Electric Ltd. et al, Defendants
BEFORE: Justice G.D. Lemon
COUNSEL: W. Alex Kyle, Counsel for the Plaintiff Lianne J. Armstrong, Counsel for the Defendants, Larry Miles Electric Ltd., Tanya Masfrankc, Larry Miles also known as Lawrence James Miles and Andrew Mitchell
HEARD: February 8, 2019
JUDGMENT
The Issue
[1] The plaintiff, Worldwide, moved for summary judgment against the defendants for payment of $120,096.40, along with a variety of other terms pursuant to the Construction Lien Act, R.S.O. 1990, c. C.30. However, the parties agreed that before dealing with that motion, I needed to deal with the defendants’ responding motion that the matter had already been settled pursuant to an accepted offer to settle dated January 16, 2018.
[2] At the end of argument on the defendants’ motion, I granted that motion for written reasons to follow. These are those reasons.
Background
[3] Worldwide has sued Larry Miles Electric Ltd. for outstanding invoices with respect to a construction project in Guelph, Ontario. The general contractor for the project was Elgin Contracting and Restoration Ltd. Elgin subcontracted work to Miles, which then subcontracted to Worldwide.
[4] Worldwide commenced this action against both Miles and Elgin along with a claim for breach of trust against Miles, two former employees of Miles, Tanya Masfrankc and Andrew Mitchell, Elgin and Larry Miles, the principal of Miles.
[5] It appears that Miles’ failure to pay Worldwide was due, in large part, to Elgin’s failure to pay its invoices on various contracts, including the holdback on the project.
[6] Elgin has now paid its holdback on the project and Worldwide’s action against Elgin has been dismissed. Elgin is no longer involved in this litigation.
[7] On October 12, 2017, Worldwide, through its lawyer, served an offer to settle with the following term:
(a) LME and Larry Miles consent to a monetary judgment in favour of the Plaintiff in the sum of $130,000 inclusive of pre-judgment interest and costs, bearing post-judgment costs at 5% per annum.
[8] There were a variety of other terms to that offer, but they are not in dispute in this action.
[9] On January 4, 2018, Miles and Mr. Miles made a counter offer. The term in issue is as follows:
(a) LME and Larry Miles agree to make payment of $110,000 to the Plaintiff, inclusive of interest and legal fees, by way of monthly payments of $1,500 per month, commencing on January 15, 2018 up to $110,000, payable by post-dated cheques, to settle both legal actions commenced by the Plaintiff.
[10] In response, plaintiff’s counsel emailed to defendants’ counsel:
Do you have instructions from your client in regard to the declaratory judgment, payment of $120,000 not $110,000 with consent judgment at $130,000 and a GSA over corporate assets?
[11] On January 16, 2018, the defendants’ counsel wrote back to plaintiff’s counsel:
Alex: My client is agreeable to this counter-offer.
[12] The defendants’ counsel then prepared and forwarded the Minutes of Settlement on January 19, 2018. The following paragraphs are in issue:
LME and Larry Miles agree to make payment of $120,000 to Worldwide, inclusive of interest and legal fees (“Settlement Amount”) LME and Larry Miles shall pay the Settlement Amount by way of monthly payments of $1,500 per month to Worldwide commencing on February 1, 2018.
[13] On January 23, 2018, counsel for Worldwide wrote to the Court office:
Please be advised that a settlement was reached in the above-noted actions, court file nos. 67/15 (trust action) and 78/15 (lien action). Kindly vacate the January 29, 2018 trial date.
[14] On January 31, 2018, plaintiffs’ counsel amended that term (handwriting in italics) to read:
LME and Larry Miles shall pay the settlement amount by way of monthly payments of $1,500 per month to Worldwide commencing on February 1, 2018, plus interest @ 5% per annum commencing February 1, 2018 on declining balance.
Analysis
[15] The issue to be determined is whether it was still open to Worldwide to add that interest term. I am satisfied, on this evidence, that a binding agreement was reached prior to that amendment. There were no further terms to be negotiated.
[16] The defendants submit that they owed Worldwide $105,000, and that the balance of the settlement was related to interest and costs. Worldwide submits that interest was not included and it should not be seen as “an interest free banker.”
[17] Mr. Miles provided an affidavit:
As LME and I accepted the plaintiff’s counter offer to settle on the terms dictated by them, I request that the plaintiff be bound to those terms.
[18] The principal of Worldwide has not responded to that affidavit. Accordingly, there is no evidence upon which I can find other than as deposed to by the defendants.
[19] Worldwide proposed “$130,000 inclusive of pre-judgment interest and costs”. The defendants countered with $110,000 and time to pay without interest. Worldwide countered with $120,000. The defendants accepted. I can find no uncertainty with respect to interest on the payments to be made.
[20] Worldwide also relies upon Perrin v. Cara Operations Ltd.. It submits that if I find such a settlement, I have the authority and discretion not to enforce it. However, there is nothing in the record before me to suggest that there is any prejudice to Worldwide. There is no evidence from Worldwide on that point. While I can certainly see that there is no interest on the outstanding balance, I have nothing to counter the defendant’s assertion that the lump sum properly includes such interest or the risk of a different result. Without knowing any more about the litigation strengths or weaknesses or the cost/benefit analysis of the remaining terms of the settlement, I cannot tell whether this is a good resolution or a bad resolution. But I can find that it is a resolution to which the parties agreed. I see no basis to do other than enforce the settlement agreement.
[21] Accordingly, the defendants’ motion is granted in accordance with the parties’ accepted offer to settle dated January 16, 2018.
[22] It is my understanding that the only issue between the parties was the handwritten amendment made by counsel for the plaintiff. The other terms were lengthy and I was not asked to review them. I have assumed throughout this decision that the settlement is not otherwise in doubt. If there are other difficulties with preparing and issuing the judgment, I will remain seized of those issues.
Costs
[23] Having given the parties my determination, I heard submissions with respect to costs. The defendants seek costs fixed in the amount of $5,593.29. Counsel for Worldwide did not object to that amount. I reviewed the costs outlined by the defendants. I believe that Worldwide’s counsel was wise not to object. From my review of the items set out in the bill of costs, the request is reasonable. Accordingly, Worldwide shall pay costs fixed in the amount of $5,593.29.
[24] The parties agree that those costs shall be offset against the amounts to be paid by the defendants pursuant to the settlement, now judgment.
Balance of the Action
[25] Given that result, the parties agreed that Worldwide’s summary judgment motion should be dismissed and the claims against the defendants, Tanya Masfrankc and Andrew Mitchell, should be dismissed. Accordingly, Worldwide’s motion and actions against Tanya Masfrankc and Andrew Mitchell are dismissed.
Lemon J. Date: March 8, 2019
COURT FILE NO.: 67-15 DATE: 2019 03 08 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: Worldwide Security Ltd. Plaintiff – and – Larry Miles Electric Ltd. et al Defendants
JUDGMENT Lemon, J