COURT FILE NO.: CV-15-519879-0000

DATE: 2019/06/19

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Christina Atkinson

Applicant

• and -

WHALEY ESTATE LITIGATION

Respondent

Joseph Kary for the Plaintiffs

Matthew Rendely for the Defendant

HEARD: June 10, 2019

PERELL, J.

REASONS FOR DECISION

A. Introduction

[1] This is a reconsideration of a Rule 49 motion (by way of an application) brought by Christina Atkinson. It is also implicitly a reconsideration of the cross-motion brought by Whaley Estate Litigation.

[2] Ms. Atkinson seeks: (a) a judgment in the terms of the settlement agreement reached between Ms. Atkinson and her former lawyers Whaley Estate Litigation; (b) approval of the mutual releases that she has drafted or in such other form as to the court seems just; (c) in the alternative, such declarations and such directions to the parties concerning their mutual obligations as to this Honourable Court seems just; (d) costs of this application; and (e) costs incurred to date in the assessment hearing. Whaley Estate Litigation seeks: (a) an Order dismissing the Rule 49 motion with substantial indemnity costs; or, (b) alternatively, an Order directing that this matter be heard in the Small Claims Court.

[3] On April 16, 2019, I dismissed Ms. Atkinson’s Rule 49 motion without costs, and I dismissed Whaley Estate Litigation’s cross-motion also without costs.[^1] In dismissing the motions, I relied on the principle from Charter Building Co., a Division of Ladson Properties Ltd. v. 1540957 Ontario Inc. (c.o.b. Mademoiselle Women's Fitness & Day Spa)[^2] that where a party repudiates or fails to perform a settlement agreement, the other party has the choice to move to enforce the settlement or to treat the settlement as an end and to resume the litigation. If the party elects to proceed with the litigation, he or she cannot bring a motion to enforce the settlement agreement.

[4] The day after I released my decision, Ms. Atkinson’s counsel wrote me to say that I had denied her justice because I had decided the case on a point not argued by the parties. He submitted that the Charter Building Co., a Division of Ladson Properties Ltd. v. 1540957 Ontario Inc. (c.o.b. Mademoiselle Women's Fitness & Day Spa) was distinguishable because Ms. Atkinson had never elected to proceed with the assessment of her account with Whaley Estate Litigation. He submitted that Ms. Atkinson was entitled to bring a motion to enforce the settlement agreement that she had reached with Whaley Estate Litigation. She submitted that Whaley Estate Litigation was estopped from objecting to a Rule 49 motion.

[5] Ms. Atkinson’s counsel, who asked that the matter be reconsidered in writing, was advised that a formal motion to set aside or vary the Order was required. Accordingly, Ms. Atkinson brought this motion for reconsideration of the Rule 49 motion.

[6] Having reconsidered the matter, I now dismiss Ms. Atkinson’s Rule 49 motion. I do so for three mutually exclusive reasons: first, there is no reason in the interests of justice to vary or set aside the decision I made in April 2019; second, on its merits, Ms. Atkinson’s Rule 49 motion fails; and third, the principle from Charter Building Co. does apply in the circumstances of this case and this provides a third mutually exclusive reason to dismiss the Rule 49 motion.

B. Factual Background

[7] In 2014, Ms. Atkinson retained the law firm of Whaley Estate Litigation Partners (WEL Partners, practicing as WEL Professional Corporation) with respect to a guardianship application.

[8] In January 2015, dissatisfied with Whaley Estate Litigation’s services, she discharged the law firm and retained Joseph Kary, her current counsel, to complete the guardianship application and to bring an application for an assessment of Whaley Estate Litigation’s legal fees. For reasons that will become apparent below, it is important to note that it was Ms. Atkinson who chose to pursue an assessment of Whaley Estate Litigation’s accounts. On January 16, 2015, she obtained an Order for assessment of Whaley Estate Litigation’s accounts.

[9] It shall also be important to keep in mind what was in issue in the assessment process initiated by the client, Ms. Atkinson. Whaley Estate Litigation had charged her approximately $51,000 in fees of which she had paid approximately $29,000. There was an outstanding balance of $21,757.00 owed by Ms. Atkinson to the law firm.

[10] In February 2015, November 2015, and July 2016, Whaley Estate Litigation made efforts to settle the dispute about fees. The law firm served Offers to Settle that included the requirement that the parties sign releases in a form provided by Whaley Estate Litigation. These offers to settle, which modestly reduced the law firm’s outstanding account, were not accepted by Ms. Atkinson.

[11] It shall be important to note that the form of release drafted by Whaley Estate Litigation and made a part of the offers to settle included a non-disclosure provision. Thus, in a letter dated February 9, 2015, from Ms. Whaley to Mr. Kary, she made an offer to settle and included a draft release to be signed by the parties that included the following clause:

AND IT IS FURTHER UNDERSTOOD AND AGREED that the fact and terms of this Full and Final Mutual Release and the settlement underlying it will be held in confidence and will receive no further publication either oral or in writing directly or indirectly, by the Releasors [Christina Atkinson, Kimberly Whaley, Whaley Estate Litigation, WEL Professional Corp. etc.] from the date of hereof, unless deemed essential on auditors’ or accountants’ written advice for financial statements or income tax purposes, or the purpose of any judicial proceeding, in which event the fact that the settlement agreement is made without any admission of liability will receive the same publication contemporaneously.

[12] Several years passed, and the assessment hearing was scheduled to proceed on August 10 and 11, 2017.

[13] On June 12, 2017, Ms. Atkinson filed her material for the assessment hearing. Ms. Atkinson’s Position Statement indicated to Whaley Estate Litigation that she was alleging that the firm had been negligent.

[14] Whaley Estate Litigation reacted, and it advised Ms. Atkinson that should she persist in making these negligence allegations, it would move to have the fee dispute decided in the Superior Court of Justice. The parties, however, then attempted to settle the matter.

[15] On August 1, 2017, Ms. Atkinson made a settlement offer in which she would pay $1,000.

[16] On August 4, 2017, Whaley Estate Litigation made an offer to settle in which it would receive $3,013.94, which was its printing costs for the pending assessment. It is to be noted that Whaley Estate Litigation required that the settlement include a release from Ms. Atkinson.

[17] On August 4, 2017, Ms. Atkinson made a counter-offer to pay $1,506.50. This offer was not accepted.

[18] On August 9, 2017, the day before the two-day assessment hearing was about to commence, there began a flurry of email correspondence between Mr. Kary for Ms. Atkinson and Ms. Whaley for Whaley Estate Litigation. Some of the correspondence also involved the Assessment Office or the Assessment Officer. For the purposes of this Rule 49 motion, this crucial correspondence lasted until and concluded with Ms. Whaley’s email message of October 19, 2017.

[19] Pausing here in the narrative, the correspondence between August and October 2017 is critical to understanding why Ms. Atkinson’s Rule 49 motion should be dismissed. The correspondence is set out in the following chart. Column 1 of the chart describes the correspondence. Column 2 sets out verbatim excepts from the communications. Column 3 includes my observations, comments, and findings in italics and foreshadows some of the analysis and discussion that follows later in these Reasons for Decision.

August 9, 2017, letter from Kary to Whaley

When I spoke with you yesterday evening, you advised that, if we could agree to pay you the copying costs in full, as per Arieh’s [a lawyer at Whaley Estate Litigation] offer of last week, then that would settle the matter and we could arrange to cancel the appearance tomorrow … I … can now agree to accept your offer and settle the matter on that basis …

Mr. Kary states that he has instructions from Ms. Atkinson to accept the settlement offer from Whaley Estate Litigation, a settlement offer that included a release; i.e., Arieh’s offer of last week required the delivery of a release. Thus, Ms. Atkinson knows a release is required. The form of the release can be traced back to 2015.

August 9, 2017, 1:00 pm, email message from Kary to Assessment Office and copied to Whaley

I am counsel for the client … and wish to advise that the parties have agreed on the final settlement, subject to exchange of documentation. It will not be necessary to proceed with tomorrow’s hearing. Please let us know whether we need to attend to speak to the matter, or if you require anything further from us.

In communicating with the Assessment Office, it was not precisely accurate for Mr. Kary to say that the parties had agreed to a final settlement “subject to the exchange of documentation” which connotes that the settlement was subject to the parties agreeing on the documentation. Whaley Estate Litigation had provided the form of the release that it required two years earlier. Ms. Whaley makes this clear in the next email message and in a subsequent letter to Mr. Kary. The point is that from Whaley Estate Litigation’s perspective, there was no documentation left to negotiate.

August 9, 2017, 2:16 pm email message from Whaley to Kary copied to Assessment Office.

I have correspondence coming to you shortly settling our agreement with a form of release by your client. In the event that it is acceptable then we have a settlement and you have our consent to dismiss without costs in accordance with the release in the form sent to you, which is LAWPRO^® approved. Whether you attend or notify the court office is up to you. If the form of release and terms are not agreeable please advise me as I will then need to attend to prove my account. Please note I did hear from LAWPRO^® today and the form of release being sent is essential to settlement.

Ms. Whaley’s email message says that the required release is non-negotiable. She states that if the release is not acceptable then the assessment will have to proceed. For Whaley Estate Litigation, the release was a critical matter – a fundamental term of any settlement - because of what it perceived as Ms. Atkinson’s allegations of negligence, which Whaley Estate Litigation had reported to its errors and omissions insurer.

August 9, 2017 circa 2:16 pm, letter by email attachment from Whaley to Kary

I acknowledge receipt of your letter dated August 9, 2017, in which we have agreed to settle the matter of your client’s assessment in … and inclusive of any potential claim in negligence … advanced by Christina Atkinson … which must include a form of release acceptable to my insurer. To that end, I have taken the liberty of drafting such release which is enclosed herein.

The settlement amount agreed upon is $3,013.94. Payment of the $3,013.94 is to be paid by no later than Friday, August 11, 2017. If you are in agreement, then you have my consent to proceed to obtain a dismissal order with consent and without costs.

In this letter, Mr. Kary is authorized to obtain a dismissal order only if his client accepts the take-it-or-leave-it settlement offer. Ms. Whaley emphasizes that the settlement must include a form of release acceptable to her errors and omissions insurer.

August 9, 2017, email 4:57 pm from Kary to Whaley

I have forwarded the release to my client but have not had the opportunity to discuss it with her yet. This is a last-minute condition of the settlement, not contemplated in our earlier discussions, and I have to get instructions from her. We would of course need a release from you as well.

Can you advise me of who[m] has carriage of the file at LAWPRO^® so that I can discuss the matter directly with them.

It was not accurate for Mr. Kary to say that the release was a last-minute condition. A release had been an ingredient of any settlement since 2015. That it was a necessity was made more acute by Ms. Atkinson’s allegations of negligence. Much of the problems that followed arise from Mr. Kary’s obsessive and mistaken belief that a release, an obvious and normal requirement of a settlement, was a last-minute condition to the settlement

August 9, 2017, 5:01 p.m., email Whaley to Kary

No, you cannot have the name as it is irrelevant for your purposes and a release is non-negotiable. There was never any question of a release ever[.] [I]t was always a requirement. Let me know if we are on tomorrow in good time, please, as there is no dismissal with no settlement. Please advise the court accordingly. Thanks.

Also this is your client’s assessment not mine therefore nothing to release as against her.

Ms. Whaley again makes it clear that the release is non-negotiable and there is no settlement without the release.

August 9, 2017, 8:04 pm, email Kary to Whaley

I am extremely troubled by the way you have conducted the settlement negotiations. You suggested that I write to the court advising of the settlement, then backtracked on this in email to the court, in effect giving the court the impression that I had misled them in my statement concerning settlement. […] The release you have prepared includes a confidentiality clause, something that was neither discussed nor bargained for until after you directed me to advise the court that the matter not proceed.

My client is, nonetheless, prepared to sign the release. As the debt to you concerned the estate, she may have an obligation to report on the settlement to the heirs of the estate and the release needs to specify that. […] I have prepared a release for you and Ms. Sultan to sign modeled on the wording of the Release you have prepared. Although this is my client’s assessment, it addresses your claim for money from her and accordingly a release is appropriate and necessary. The alternative would be to consent to an order of the assessor fixing the amount owing making the release superfluous.

I trust that we can resolve this in the morning and that it is not necessary for one or the other of us to bring a motion to a judge under rule 49.09; if it is, I would be arguing that the confidentiality terms and other details of the draft release form no part of the settlement.

It was not accurate for Mr. Kary to say that there was backtracking by Ms. Whaley. Whaley Estate Litigation did not add any new terms. The release had always been an essential requirement of any settlement and had become more essential with Ms. Atkinson’s allegations of negligence.

It was not accurate for Mr. Kary to say that the release drafted in 2017 included a confidentiality clause that was never discussed or bargained for. The previously drafted release, prepared in 2015, included a non-disclosure provision.

It was not accurate for Mr. Kary to say that his client “is nonetheless prepared to sign the release.” More accurately Ms. Atkinson was agreeing to sign the release with the confidentiality clause only if: (a) the confidentiality clause in the release was revised; and (b) the release was revised to be a mutual release with a release signed by Whaley Estate Litigation.

It should be noted that Mr. Kary advises that if the pre-conditions to Ms. Atkinson signing a release are not satisfied, then there may be a Rule 49 motion by Ms. Atkinson in which Ms. Atkinson’s position would be that the confidentiality terms and other details of the draft release form would be no part of the settlement.

As I shall discuss further below, the legal situation is that the parties have not reached an agreement or Ms. Atkinson has withdrawn her acceptance or Ms. Atkinson is repudiating the settlement agreement.

August 9, 2017, 8:14 pm, email Whaley to Kary

I have no idea what you are even saying. Is your client signing the release or not? If so, we have a deal. If not, we don’t. If I need to attend tomorrow, we have no deal that does not include my costs of attending. Regarding a release for your client, I have no issue with signing one notwithstanding that it makes no sense. Let me know. As to the rest, I am not debating with you. I am prepared to attend to prove my account if I need to. If we have a deal let me know. If I do not have such confirmation, I will attend as planned. […]

Ms. Whaley indicates that Whaley Estate Litigation will sign a release. The firm, however, does not withdraw the requirement that Ms. Atkinson sign the release with a non-disclosure provision.

August 9, 2017, email 8:34 pm from Kary to Whaley

She will sign the release, subject to a provision that she can inform the beneficiaries of the estate concerning the settlement. I do not require you to attend tomorrow.

Mr. Kary’s response is a qualified acceptance of the apparently revived settlement offer of Whaley Estate Litigation. Because it is qualified, it is not an acceptance that would create a contract.

August 9, 2017, email 8:38 pm from Whaley to Kary

Ok. Please send the release back signed. She is not accountable to the beneficiaries on this as she already has an agreement pre-death implemented by a court covering our full fees. However, I do not care what she does or does not do with the beneficiaries. Thanks.

It appears at this juncture that there might be or could be a settlement of the assessment - if the parties performed its terms. The terms of the settlement would be: (a) Ms. Atkinson will pay $3,013.94 by August 11, 2017; (b) Ms. Atkinson will sign the release with a revised non-disclosure provision; (c) Whaley Estate Litigation will sign a release; and (d) the assessment will be dismissed without costs.

August 10, 2017, email 9:20 pm from Andrea Hogan of Whaley Estate Litigation to Kary

Further to our email of yesterday, please provide us with a copy of the executed release as soon as possible, together with your confirmation and undertaking that it is being signed and sent to us. Please provide same before 10am.

Ms. Whaley wishes confirmation that the release has been signed because otherwise there is no settlement and she wishes the assessment hearing to proceed.

August 10, 2017, 9:43 am, email from Assessment Officer (Angelique Palmer) to Kary and Whaley

Dear Counsel,

I received your communication this morning regarding settling this matter. Upon receipt of this email, would the parties please confirm whether or not a settlement was reached? It appears from the email string … that document exchange was still needed yesterday. Once I receive confirmation from both sides, I can note that the matter is settled and there will be no need for the parties to appear today.

The Assessment Officer appreciates that there may not be a settlement because she did not receive confirmation from both parties. As it happens, Mr. Kary does not provide confirmation, and instead he attends at the assessment hearing. He does not ask that the assessment be dismissed. It seems that he asks that the assessment hearing be rescheduled to provide more time to complete the settlement negotiations.

August 10, 2017, 9:53 am, email from Whaley to Kary

May I have the release so this can be confirmed. […]

Ms. Whaley again asks for a confirmation. The confirmation never comes.

August 10, 2017, 6:04 pm, fax from Kary to Whaley

Attached is the endorsement rendered today. The releases should be mutual. If we release Ms. Sultan [Ms. Whaley’s associate] as well as yourself, we need a release signed by Ms. Sultan and the corporation as well as yourself.

Mr. Kary had said that Ms. Atkinson would sign the release subject to a provision that she can inform the beneficiaries of the estate concerning the settlement. Now he adds the requirement that there be a mutual release.

Mr. Kary reveals what occurred before the Assessment Officer, which was contrary to the expectations of Ms. Whaley. Mr. Kary was authorized only to advise the Assessment Officer that the assessment had been settled and that it should be dismissed. That is not what occurred. It was unauthorized for Mr. Kary to advise the settlement officer that that the parties needed time to finalize documentation. That was not Ms. Whaley understanding.

As I shall explain further below, in my opinion, by these acts, either there was no settlement or Ms. Atkinson repudiated the settlement agreement if there was one.

Assessment Officer’s File Direction:

Court notified via email on August 9, 2017 that the matter is settled. Counsel for the applicant appeared and indicated that they need time to finalize documentation.

Direction: This matter is settled by the parties. The case will be set for preliminary hearing at a date to be set by the Assessment Office. Counsel for the applicant is to provide the respondent of the notice for preliminary hearing and endorsement today.

[The Assessment Office appointed January 22, 2018 for a hearing to assist with preliminary issues.]

August 11, 2017, Whaley leaves a phone mail message with Kary.

For the substance of Ms. Whaley’s message, see below her “with prejudice” email message of August 15, 2017, which followed her letter to the Assessment Officer.

August 15, 2017 letter from Whaley to Assessment Officer Palmer, copied to Kary.

I write further to the endorsement provided to me by Joseph Kary on August 11, 2017, he having attended before you on August 10, 2017. Please be advised that pursuant to an email received from Joseph Kary and attached hereto for your reference, he represented to me that his client would sign a release that I provided respecting settlement and there was no need for my attendance at the hearing scheduled to take place on August 10 and 11, 2017. Notwithstanding the agreement to sign the release and without notice to me, he attended with full knowledge that if the matter was not settled and documentation not signed we had no agreement as such, I intended to prove my account. In the circumstances, I will not be attending on January 22, 2018. If I do not receive the signed full and final mutual release and settlement monies this week from Mr. Kary, I will be contacting the Assessment Office to set the matter down for a hearing for the two-day assessment that was purportedly dismissed improperly by Mr. Kary and then resurrected unilaterally and without notice to me.

Whaley Estate Litigation is indicating to the Assessment Officer that it was accepting what it regarded as a repudiation of the settlement of the assessment and requiring that the two-day hearing be rescheduled.

Whaley Estate Litigation is partially at fault for what occurred before the Assessment Officer. It should have, in any event, attended the assessment hearing. It should have personally responded to the Assessment Officer’s request for a confirmation.

August 15, 2017 email letter from Whaley to Kary

With prejudice

Please find enclosed a revised Full and Final Release reflecting that the Release is now mutual … I trust that this Mutual Release will be satisfactory to you, and that I will receive both the sum of $3,013.94 together with the signed Release this week. […]

I have no intention to either respond or debate your several pieces of correspondence over the past couple of weeks. What I will say is that you had no authority to attend at the Court on August 10, 2017 to obtain any order for attendance which involved myself or my firm. […]

I confirm that I left you a voicemail on Friday August 11, upon learning that you attended […] I trust that you will take all steps to immediately remedy this situation and vacate the hearing and provide the Court with a copy of the Full and Final Mutual Release for their file. […]

I agree that Mr. Kary did not have the authorization to have the assessment hearing rescheduled.

It appears, however, that Whaley Estate Litigation is prepared to proceed as if the assessment had been settled with the terms set out above, which included a release with a non-disclosure provision, plus its agreement now to sign a mutual release. It appears once again that there might be or could be a settlement of the assessment - if the parties performed its terms.

August 21, 2017, letter from Kary to Whaley

I have the following concerns about the latest release that you have drafted. […] With respect to the other allegations in your letter of August 15, I will be more than pleased to address them after you have responded to the issues I have raised concerning your conduct in prior correspondence, including your breaches of rule 1.09 and the Rules of Civil Procedure and your breaches of the Rules of Professional Conduct […]

I make no finding whether or not Ms. Whaley breached any Rules of Civil Procedure or Rules of Professional Conduct.

The parties have not reached a settlement as Ms. Atkinson is not prepared to sign the release drafted by Whaley Estate Litigation. Once again, the situation is that either there is no settlement or Ms. Atkinson has repudiated her promise to sign the release drafted by Whaley Estate Litigation.

August 22, 2017 email letter from Whaley to Kary

Further to your telephone discussion with my office, please find enclosed a revised Full and Final Mutual Release incorporating the following changes: 1. Stating that I have authority to bind the corporation in the signature line; 2 Transposing the order of the Releasees […]. This is a LAWPRO^® Release and is satisfactory to my insurers. I will be making no further changes. I trust that this Mutual Release will be satisfactory to you, and I will receive both the sum of $3,013.94 together with the signed Release this week.

Ms. Atkinson never signed the revised release and has never paid the $3,013.94.

Mr. Kary writes Kellie Seaman, counsel at LAWPRO.^®

I was not provided with a copy of this letter. The letter is referred to in Ms. Whaley’s letter of September 4, 2017 to Mr. Kary (see below). It can be inferred that Mr. Kary wrote his letter to LAWPRO^® because he believed that the law firm may not have reported itself to the insurer and, in any event, he wishes to understand LAWPRO’s® position with respect to the release that was the subject of so much discord.

August 30, 2017, letter Kary to Whaley

I enclose corrected versions of the final releases. As mentioned in previous correspondence, the confidentiality clause cannot override Ms. Atkinson’s obligations to report concerning estate matters. […] There is a certain clumsiness in the drafting created by the decision to write the settlement as a mutual release; I have added additional wording that addresses inadvertent consequences of that choice.

I will have Ms. Atkinson in to sign the release with the handwritten recommendations or if you prefer a cleaner copy please send me a revised version incorporating the necessary changes.

Whaley Estate Litigation never agrees to the changes made by Mr. Kary and by email of August 30, 2017 (see below) and by letter of September 4, 2017 (see below), Whaley Estate Litigation indicates that there is no settlement.

August 30, 2017, letter from Whaley to Kary

I do not agree to your handwritten amendments. Moreover you referenced the said allegation of negligence as being the court file in your client’s materials. As such the court file needs to be referenced […]

Given that you have spent an inordinate amount of my time, that your client did not sign as you indicated she would the last release that I drafted, and given I am not doing anymore drafting on the matter, and wasting any more time, I will ask the assessment officer to put the assessment back down for a hearing […] as I intend to waste no more time on what appears to be a never ending project for you.

That the release discharge Whaley Estate Litigation from a negligence claim continues to be a predominant issue for the law firm, which it should be recalled would be abandoning its outstanding account of $21,757.00 in exchange for $3,013.94 and the release. From Whaley Estate Litigation’s perspective, the release with a non-disclosure provision was the essential term of the settlement.

September 4, 2017, letter from Whaley to Kary

I acknowledge receipt of a forwarded piece of correspondence from Kellie Seaman counsel at LAWPRO^®. LAWPRO^® Counsel are not intending to communicate with you on this matter. The matter of the release was at one point, a matter to be negotiated as between the two of us in a form satisfactory to me, which was a condition of any settlement offer made. […]

On the evening before [the assessment hearing] you advised that your client would sign the release that I had provided and pay the fees in the amount of $3,013.94. On that basis, you advised me as well that I need not attend the assessment office. Notwithstanding this, you attended unbeknownst to me as the assessment office, and made representations resulting in an Order as attached hereto. This is in clear breach of several Rules of Professional Conduct.

[…] I understood you were now asking for a mutual release. I provided a form of mutual release that I would agree to enter into. In fact, I signed it. This was a concession made by me.

This ongoing correspondence between us however has to stop. I advised you I was not prepared to debate the issue any longer. I advised you that if I did not receive a signed release (either version drafted by me) and the monies last Friday, that I would be setting this matter back down for assessment.

You must understand that there is no settlement between us since you have not complied with any of the terms. If I wanted to enforce this settlement, I could on the basis of the representations you made on the evening before the assessment …

However, given that your client has not signed and she has not complied with the terms of the offer and settlement, it is open to have the assessment put back on. As such, today, I have canvassed dates with the assessment office and was advised that September 14, and 15, 2017 are available, and I would like to bring the assessment back on those dates. Will you consent?

I make no finding whether or not Mr. Kary breached any Rules of Professional Conduct.

In a taunt, Ms. Whaley’s position is that that there could have been a settlement if Ms. Atkinson had performed its terms but now that’s off the table. She states that her law firm could have decided to still enforce the settlement (under Rule 49) but it has chosen not to and choses instead to forge ahead with the assessment hearing.

September 11, 2017, email Whaley to Kary

Negotiations are over. There is no settlement.

Ms. Whaley’s letter responds to a letter from Mr. Kary that is not in the record.

October 19, 2017, email message from Whaley to Kary

I advised you that I am not debating this with you further, yet you insist on writing me time after time with little or no notice taken of my letters […] I cannot help you as previously stated. Your client entered into a settlement that she did not execute. You attended the assessment office on the date of the assessment without notice to me and telling me NOT to attend that is had settled. […] I told you clearly the deal is off.

[…] Please do not write me again. I am going to prove my account on the dates set and ask for all the inane costs […] I hope your client knows that the deal is off and was thwarted by you and that she knows you agreed to a settlement that I could have enforced but chose not to because of the time of mine that has been wasted. […]

Ms. Whaley is not correct in saying that Mr. Kary attended the assessment hearing without notice to her. She knew he was attending and as noted above, she ought to have attended as well. The problem was that Mr. Kary did not attend to have the assessment dismissed, which was the event for which Ms. Whaley was seeking confirmation, and Ms. Whaley did not attend the hearing to protect her firm’s position. In the circumstances she ought not to have made any authorizations.

Once again, Ms. Whaley taunts Mr. Kary with the settlement that might have been and asks that Mr. Kary stop writing.

[20] Pausing here to summarize, as of the end of 2017, the situation was that an assessment was proceeding. Neither party brought a Rule 49 motion. The assessment hearing that Ms. Atkinson had initiated was re-scheduled for January 2018, but Ms. Whaley arranged for it to be re-re-scheduled to begin on December 10, 2018. Three days of hearing were scheduled.

[21] In February 2018, Mr. Kary was reviewing the file, and he contacted Whaley Estate Litigation, once again, seeking to obtain information about LAWPRO^® and its requirements as to the form of the release. That information was not forthcoming from Whaley Estate Litigation, and it seems that both parties were now just waiting for the December 2018 assessment hearing.

[22] The situation, however, changed in the fall of 2018, when Ms. Atkinson decided to bring a Rule 49 motion. In paragraph 95 of her affidavit in support of the Rule 49 motion, she states:

95. In preparing for the assessment hearing in the Fall of 2018, the decision was made to bring this Rule 49 motion. The court could not give us a date over the counter in time to be heard before the assessment hearing scheduled for December 10, and so my lawyers attended to obtain a date at Civil Practice Court. A lawyer from Whaley [Matthew Rendely] attended to oppose that request and it was denied. We obtained from the CPC the earliest date that could be given in the normal course, January 9, 2019.

[23] Mr. Kary attended in Civil Practice Court on October 19, 2018 to obtain a date for the Rule 49 motion, and he asked Justice Diamond for an urgent hearing. No motion material had been yet prepared for the Rule 49 motion. Mr. Kary requested that the motion be scheduled so that it could be heard and decided before the December date of the assessment hearing. Whaley Estate Litigation represented by Matthew Rendely of the law firm objected to the Rule 49 motion being scheduled before the assessment hearing.

[24] Mr. Justice Diamond refused to schedule the Rule 49 in November 2018 as was being requested by Mr. Kary for Ms. Atkinson. A transcript of the attendance in Civil Practice Court reveals that Justice Diamond said that apart from the fact that the Court’s motion lists for long motions were full, it would not be fair for Ms. Atkinson to jump the queue and to disturb the scheduled assessment hearing that had been scheduled for over a year. The following exchange occurred amongst Justice Diamond, Mr. Kary, and Mr. Rendely.

THE COURT: But why, Mr. Kary, why are we jumping the queue now with six weeks to go, when this issue was back in 2017? I don't understand. This is a creation of your own doing.

MR. KARY: To some ....

THE COURT: Not you, your client.

MR. KARY: To some extent me, Your Honour. I wouldn't put the blame on my client. But, I agree - certainly, I wish we would have brought it earlier. But, I don't want to be in the position where we have - where I - do I appear on December 11th and ask for an adjournment, because there is a motion coming up later? Is that - if that adjournment is refused, does the motion then proceed on whether there was or had not been a settlement?

THE COURT: But, all of that is a creation of waiting until today to ask for. I mean, I understand you are saying, what do I do? But, the question is that it was a question that should have been asked months ago.

MR. KARY: No, I agree somewhat, Your Honour. But, the issue still remains. Do we adjourn this hearing that is scheduled for December 11th, so that a motion can be heard later? In which case we're wasting more time than the scheduled session. Do we not adjourn it and proceed, and then make an argument later that there's been a settlement?

THE COURT: How long have you been waiting? Mr. Rendely, how long have been waiting for this date?

MR. RENDELY: I believe it was rescheduled after the last date in August.

THE COURT: So, over a year?

MR. RENDELY: I believe so, Your Honour.

MR. KARY: Yes.

THE COURT: That's not right. They were waiting for over a year, and now they are going to push it back, because you woke up?

MR. KARY: I don't want to push it back, Your Honour, that's why I'm here, so that it doesn't get pushed back.

[25] The result of the attendance in Civil Practice Court was that the Rule 49 motion was scheduled for January 9, 2019; i.e., after the assessment hearing would have gotten underway.

[26] Ms. Atkinson, however, asked for the assessment hearing to be adjourned. Although the parties were in Civil Practice Court on October 19, 2018, Mr. Kary waited another month until November 20, 2018, just weeks before the scheduled assessment, to ask for an adjournment of the assessment hearing.

[27] The parties made written submissions to the Assessment Officer about whether the assessment hearing should be adjourned because of the pending Rule 49 motion. Ms. Atkinson submits that she relied on the law firm’s representation that Ms. Atkinson would not be prejudiced if the assessment proceeded because the Rule 49 motion could follow and the assessment procedure would not prejudice her Rule 49 motion to enforce the settlement.

[28] On December 6, 2018, in an email message, the Assessment Officer, Michael Boehm, refused the adjournment request. The email stated:

I am denying the Client's request for an adjournment of the hearing scheduled for December 10, 11 and 12. The Order for Assessment was obtained in January 2015. Thereafter, due to a potential (or actual) settlement there were delays in bringing this matter to the current hearing date. I am cognizant that the parties differ as to who is to blame for the delay. I need not untangle that issue. The relevant facts are that the current assessment hearing date was scheduled in August 2017, yet the Client waited until October 2018 to bring a Rule 49 motion. The Client should not be rewarded for this delay. Further, the Client's adjournment request was not made in a timely manner; the Client was aware of the January 9 motion date since October 19, 2018, yet waited until November 20 to make this adjournment request. For those reasons, the hearing is to commence on December 10 at 10:00 a.m.

[29] The assessment hearing proceeded on December 10, 11, and 12, 2018 but was not completed. It was scheduled to resume on February 5 and 7, 2019, i.e., after the scheduled Rule 49 motion.

[30] However, the Rule 49 motion did not proceed on January 12, 2019, and it had to be rescheduled. The motion did not proceed because over the year-end holiday period, Ms. Atkinson had not arranged for timely service of her motions material. The Rule 49 motion was re-scheduled for April 2019.

[31] Near the end of January 2019, Ms. Atkinson again unsuccessfully requested an adjournment of the assessment hearing, which was scheduled to have its fourth day of evidence. The adjournment request was again refused. On January 31, 2019, the Assessment Officer sent the parties the following email message:

I am denying the Client’s request for an adjournment of the continuation of the hearing. In my prior email of December 6, 2018, I already addressed the Client’s adjournment request, which was predicated on the pending Rule 49 motion. […] The same reasoning applies today.

Further, despite knowing about the motion date for two months, the Client did not attempt to serve motion materials until the end of December 2018. This delay has not been explained. The Solicitor set forth that it will need time to prepare reply materials to the motion, and that there will be a need for examinations related to the Rule 49 motion. To date, no examination has been scheduled. Neither has the motion been rescheduled.

It would be unfair to the Solicitor to allow an adjournment of the assessment to a date that has not yet even been determined, based on a Rule 49 motion that the Client delayed in bringing and prosecuting.

Should I issue a Report and Certificate of Assessment prior to the rendering of a decision on the Rule 49 motion, either party may make a motion pursuant to Rule 54.09 and Rule 56.06(2)(b) to suspend the operation of the Certificate of Assessment until a decision has been rendered on the motion. […]

[32] Thus, the assessment hearing proceeded to a fourth day of evidence in February 2019. A fifth day of hearings is to be scheduled.

[33] Meanwhile, while Ms. Atkinson’s Rule 49 motion to enforce the settlement was still pending, on April 3, 2019, Whaley Estate Litigation, on short notice, brought its cross-motion and delivered a voluminous motion record including an affidavit from Kimberley Whaley with 29 exhibits.

[34] The Rule 49 motion and the cross-motion were argued on April 9, 2019. I refused an adjournment for a cross-examination of Ms. Whaley about LAWPRO’s^® position about the release. I reserved judgment and I released my decision on April 26, 2019.

[35] Mr. Kary almost immediately wrote me and asked for a reconsideration based on my not having been advised of all of the circumstances that led to there being simultaneously: (a) an ongoing assessment hearing of an assessment of a solicitor’s account that had been requested by the client; and (b) a Rule 49 motion brought by the client to enforce a settlement of the assessment proceeding, which circumstances underpinned my application of the principle from Charter Building Co., a Division of Ladson Properties Ltd. v. 1540957 Ontario Inc. (c.o.b. Mademoiselle Women's Fitness & Day Spa).

[36] It is Ms. Atkinson’s argument that the order I made on April 26, 2019 should be set aside or varied because it was made on the basis of a principle not argued before the Court or tested by the adversarial process, thus depriving the court of crucial evidence and submissions.

a. She submits that I did not know that she had never made a binding election that would make the principle from Charter Building Co., a Division of Ladson Properties Ltd. v. 1540957 Ontario Inc. (c.o.b. Mademoiselle Women's Fitness & Day Spa) operative and rather that her conduct indicated that she did not make any such election.

b. She submits that her position was always that a Rule 49 motion should be heard before the assessment hearing, as demonstrated by the circumstances that: (1) she sought to have the Rule 49 motion heard before the assessment hearing, but this was opposed by Whaley Estate Litigation; and (2) she twice sought to have the assessment motion adjourned to allow the Rule 49 motion to proceed, but the adjournment was opposed by Whaley Estate Litigation.

c. She submits that Whaley Estate Litigation made binding representations that estop it from relying on the principle from Charter Building Co.

1. Introduction

[37] In April 2019, I dismissed Ms. Atkinson’s Rule 49 motion based on the principle from Charter Building Co., a Division of Ladson Properties Ltd. v. 1540957 Ontario Inc. (c.o.b. Mademoiselle Women's Fitness & Day Spa). Ms. Atkinson now asks that I set aside or vary my decision by reversing it and enforcing the settlement allegedly reached by her with Whaley Estate Litigation in August of 2017.

[38] I, however, decline to reverse my decision; rather, I dismiss Ms. Atkinson’s Rule 49 motion for three mutually exclusive reasons:

First, there is no reason in the interests of justice to vary and set aside the decision I made in April 2019.

Second, assuming that the Charter Building Co., a Division of Ladson Properties Ltd. v. 1540957 Ontario Inc. (c.o.b. Mademoiselle Women's Fitness & Day Spa) decision does not apply to the circumstances of this case, Ms. Atkinson’s Rule 49 motion should be dismissed on its merits.

Third, notwithstanding Ms. Atkinson’s arguments to the contrary, the Charter Building Co. decision of the Court of Appeal does indeed apply to the circumstances of this case, and, therefore, she was precluded from bringing a Rule 49 motion and the Rule 49 motion should be quashed or dismissed.

2. The Court’s Jurisdiction to Set Aside or Vary a Decision.

[39] Since I am going to hear and decide Ms. Atkinson’s Rule 49 motion on its merits, it is moot or academic to discuss: (a) whether I have the jurisdiction to set aside or vary the decision I made in April; and (b) whether I should exercise that jurisdiction and change my decision. I shall, nevertheless, not treat the matter as moot, and I shall explain why on jurisdictional grounds, I decline to reverse the decision I made in April 2019.

[40] There are several rules of civil procedure that provide the court with jurisdiction to set aside or vary an order. Ms. Atkinson, however, relies on the court’s inherent jurisdiction to vary or withdraw an order if it is in the interests of justice to do so.[^3]

[41] A party seeking to set aside an order is required to show circumstances in the interests of justice that warrant deviation from the fundamental principle that a final order unless appealed marks the end of the litigation.[^4] The power to reconsider a decision will be exercised sparingly and only where it is clearly in the interests of justice.[^5] A motion for reconsideration is not the venue for new arguments or new evidence that could have been made and/or lead at the initial hearing.[^6]

[42] The matter of whether there was going to be a Rule 49 motion instead of an assessment was before me in April 2019. The matters of whether the Rule 49 motion should proceed before the assessment hearing and whether there should even be a Rule 49 motion were before me in April 2019. The significance, if any, of Ms. Atkinson having continued her assessment and then after over a year seeking to launch a Rule 49 motion and adjourn the assessment hearing was before me in April 2019. In April 2019, I had a voluminous evidentiary record that included the competing threats and taunts by Ms. Whaley and Mr. Kary about bringing a Rule 49 motion. Remarkably, I had a transcript of the attendance before Justice Diamond about scheduling a Rule 49 motion. I had the decisions of the Assessment Officers before me about not adjourning the assessment hearing and about the effect of proceeding with the assessment notwithstanding a pending Rule 49 motion. There was no additional evidence that could have been called about what the parties’ intended or did not intend when Ms. Atkinson brought an assessment proceeding in 2015, which she continued until October 2018 when she decided to bring a Rule 49 motion and which assessment procedure she only sought to adjourn in November 2018.

[43] What was not put before me by either party was relevant case law that ought to have been before the court, which I assume was an inadvertently missed opportunity by Whaley Estate Litigation, and which I assume was an inadvertent dodging of a threat by Ms. Atkinson’s counsel.

[44] Both parties had an opportunity to develop their theories of the case based on the pleaded record and all the facts were fully argued in the evidentiary record and I applied relevant law to the facts. There is no suggestion that a fraud was perpetrated on the court. There is no suggestion that Ms. Atkinson’s request for a reconsideration is based on new facts that were not in the evidentiary record.

[45] The Court of Appeal decision in Charter Building Co. is binding on me and either the principle applied to the facts of the immediate case or it didn’t. If my decision was a wrong application of the law to the facts, Ms. Atkinson’s remedy was an appeal, not a motion to vary or set aside the decision. Her motion for a reconsideration should, therefore, be dismissed on this account.

3. The Rule 49 Motion on Its Merits.

[46] Rule 49.09 (a) stipulates that where a party to an accepted offer to settle fails to comply with the terms of the offer, the other party may make a motion to a judge for judgment in the terms of the accepted offer, and the judge may grant judgment accordingly. Rule 49.09(a) codifies the common law jurisdiction to enforce agreements to settle litigation.[^7]

[47] A motion to enforce a settlement involves two elements. The first element is whether or not there is any genuine issue about the existence of an agreement to settle, and the second is to determine whether there is any reason not to enforce the settlement.[^8]

[48] For there to be a binding settlement agreement, there must be a mutual intention to create a legally binding agreement and the essential terms of the agreement must have been agreed upon.[^9] However, it is not necessary to have reached agreement on incidental matters, such as the method of payment or the exchange of releases.[^10]The parties should attempt to settle the terms of a release consistent with their settlement, and the settlement will be enforceable unless one party insists upon terms or conditions that have not been agreed upon or are not reasonably implied in the circumstances.[^11]

[49] The court has the discretion to refuse to enforce the settlement agreement summarily.[^12] In exercising its discretion, the court may have regard to such factors as the presence of a mistake by a lawyer about his or her instructions to accept the settlement, the prejudice to the parties of enforcing or not enforcing the settlement; and the effect on third parties.[^13] The discretionary decision not to enforce a concluded settlement, especially where the settlement has been partially or fully performed, is reserved for those rare cases where compelling circumstances establish that the enforcement of the settlement is not in the interests of justice.[^14] Circumstances where the court might exercise its discretion not to enforce a settlement include: (a) where it considers the settlement to be unreasonable; (b) where the settlement would result in an injustice; or (c) where there is another good reason not to enforce the settlement.[^15]

[50] In the immediate case, Ms. Atkinson’s Rule 49 motion fails on the merits for three reasons.

[51] First, Rule 49.09 (a), by its own terms, is not available to a party who fails to comply with the terms of a settlement; rather it is available to the other party; i.e., the compliant party, where his or her opponent fails to comply with the terms of the offer.

[52] In the immediate case, if there was a settlement, then Ms. Atkinson was not compliant with performing the terms of the settlement. She never delivered a signed release. She never paid the $3,013.94. She did not arrange to have the assessment dismissed, which was a term of the settlement. She refused to sign the release requested by Whaley Estate Litigation. She insisted on amendments to the release that her counsel had already said she would sign. Ms. Atkinson does not qualify for relief under Rule 49.

[53] It is interesting that Justice Diamond was alert to this problem in Ms. Atkinson bringing a Rule 49 motion when she had not complied with the settlement. Justice Diamond discussed this matter with Mr. Kary during the attendance in Civil Practice Court in October 2018, where the following exchange occurred:

THE COURT: I don't understand, Mr. Kary. If, there was a deadline to pay and you didn't pay, why is there - why are you getting judgment in accordance with the settlement?

MR. KARY: Because, after - there was an initial deadline. The problem was, we continued negotiating after that, after the deadline had passed.

THE COURT: But, the person who is entitled to bring the motion under Rule 49 is him, not you.

MR. KARY: Either party is entitled to bring ...

THE COURT: No.

MR. KARY: ... the motion, if settlement has been reached.

THE COURT: No. Actually, if you read it, if you read it, under 49.09, it doesn't say that. It says, where party to an accepted offer fails to comply with the terms of the party, the other party may."

MR. KARY: Yes. And we're ....

THE COURT: That's them.

MR. KARY: We made an offer.

THE COURT: You didn't pay.

MR. KARY: No, we made an offer and they refused it. They did not refuse it, they reneged on it.

THE COURT: That's not - you are not reading the rule right. Where you fail to comply with a settlement, the other party may treat it as dead may bring a motion for judgment, not you.

MR. KARY: It's our position that they failed to comply with the settlement.

THE COURT: But you didn't pay.

MR. KARY: They refused to - they insisted on new terms that were not part of the settlement. And so, they would not settle unless we also agreed to those terms.

THE COURT: Being the confidentiality claims?

MR. KARY: Confidentiality - being a confidentiality clause, which would have essentially - my client was an executor of an estate. They insisted on a confidentiality clause that would have not allowed her to inform the beneficiaries of the settlement terms, which would have been ...

[54] Since 2015, Ms. Atkinson had been aware that for there to be a settlement, Whaley Estate Litigation was insisting on a non-disclosure provision, so in his exchange with Justice Diamond, Mr. Kary was wrong in suggesting that Whaley Estate Litigation had added a new term to the settlement. If there was a settlement, then Ms. Atkinson failed to comply with the terms of that settlement. She is not qualified to bring a motion under Rule 49 (a), and this is the first reason why the Rule 49 motion should be dismissed on its merits.

[55] There is, in any event, a second mutually exclusive reason why the Rule 49 motion fails. As noted above, for a Rule 49 motion to succeed, there must be no genuine issue that a settlement agreement was reached. In the immediate case, the evidence rather establishes that the parties never came to a meeting of minds about the essential terms of the settlement. Indeed, Mr. Kary was still fussing about LAWPRO’s^® involvement and the form of the release as late as February 2018.

[56] Ms. Atkinson submits that the release was an incidental term of the settlement, but this is not the case. Typically, a release is an incidental term - but this case was not typical, and the form of the release was a very important matter for Whaley Estate Litigation, which had insisted on a release with a non-disclosure provision for over two-and-a-half years.

[57] Moreover, while a release may have been or should have been less important to Ms. Atkinson, she did not treat the release as an incidental or unimportant matter. It was Mr. Kary’s dogmatic instance that the release be changed that ultimately became unbearable for Ms. Whaley, and she called off further debate and further negotiations.

[58] I emphasis that the release was an essential matter for Whaley Estate Litigation. What is an essential term of a contract is dependent on the circumstances, the factual nexus of each negotiation.

[59] It was not and it is not for Ms. Atkinson to decide what was an essential or non-essential term. In her notice of motion, she asks that the court approve the release that she drafted or in such other form as to the court seems just. During argument, Ms. Atkinson’s counsel submitted that Whaley Estate Litigation could not regard the release as being a fundamental matter because he denied that that Ms. Atkinson was alleging that Whaley Estate Litigation was negligent and she only wished to have the firm’s bill reduced for poorly performed services. He insisted that the release was just an incidental matter that the court could resolve. I disagree, the release was a fundamental matter in the factual nexus of this particular settlement contract.

[60] In the circumstances of the immediate case, the release was a fundamental term of any settlement, and there was no meeting of the minds about the release. For there to be a binding settlement agreement, there must be a mutual intention to create a legally binding agreement and the essential terms of the agreement must have been agreed upon, but that did not occur in the case at bar. There was no settlement agreement to enforce, and this is the second reason why Ms. Atkinson’s Rule 49 motion should be dismissed on its merits.

[61] There is, in any event, a third reason why Ms. Atkinson’s Rule 49 motion fails. As noted above, the court has a discretion not to enforce the settlement agreement summarily. I would exercise that discretion in the circumstances of the immediate case and not enforce the settlement.

[62] I will not enforce a settlement agreement that was breached by Ms. Atkinson. In August of 2017, Ms. Atkinson owed Whaley Estate Litigation $21,757.00, and if there was a settlement, it was premised on her paying $3,013.94, signing a release, confirming to the Assessment Officer that there was a settlement, and having the assessment proceeding dismissed. None of this occurred and no money or any release has ever been delivered by Ms. Atkinson.

[63] Further, I would not enforce a settlement that Ms. Atkinson delayed attempting to enforce for almost fourteen months. By the time she decided to try to enforce the alleged settlement in October 2018, she had delayed for four years payment for legal work performed in 2014, and she was attempting to delay an assessment procedure that she had initiated and that Whaley Estate Litigation had been preparing for since 2015.

[64] It is simply unfair to enforce a settlement, assuming that there was one, that Ms. Atkinson had implicitly forsworn to pursue to instead pursue the assessment procedure. This circumstance provides the third reason why the Rule 49 motion should be dismissed on its merits.

[65] Assuming that the Charter Building Co., a Division of Ladson Properties Ltd. v. 1540957 Ontario Inc. (c.o.b. Mademoiselle Women's Fitness & Day Spa) decision does not apply to the circumstances of this case, dismissing Ms. Atkinson’s Rule 49 motion on its merits provides a second reason for not granting her reconsideration motion and reversing my original decision.

4. Charter Building Co., a Division of Ladson Properties Ltd. v. 1540957 Ontario Inc. (c.o.b. Mademoiselle Women's Fitness & Day Spa)

[66] Ms. Atkinson submits that the Charter Building Co., a Division of Ladson Properties Ltd. v. 1540957 Ontario Inc. (c.o.b. Mademoiselle Women's Fitness & Day Spa) decision of the Court of Appeal does not apply to the circumstances of this case and, therefore, she is not precluded from bringing a Rule 49 motion. She also submits that Whaley Estate Litigation is estopped from relying on the Charter Building Co. decision.

[67] Ms. Atkinson submits that she did not know that she had an election to make. She submits that she was not obliged to make an election between a Rule 49 motion and continuing the assessment procedure. She submits that she was entitled to pursue the assessment procedure while reserving the right to enforce the settlement. She submits that she did not by word or conduct between August 2017 until October 2018 make an election against her choice of pursuing the assessment procedure while reserving the right to enforce the settlement. She submits, in effect, that the law entitles her to approbate and reprobate the settlement agreement she alleges she had reached with Whaley Estate Litigation.

[68] With respect, none of this is correct. In the summer of 2017, Ms. Atkinson certainly knew that a Rule 49 motion was necessary if she wanted to be relieved of a $21,757.00 liability in exchange for paying $3,013.94 and signing the release. Ms. Whaley had taunted Ms. Atkinson about the prospect that her law firm could have enforced the settlement, but now it was intent on pursuing Ms. Atkinson for the full $21,757.00 plus substantial indemnity costs for the assessment procedure.

[69] Despite this taunting about Rule 49, Ms. Atkinson did not move to enforce what would have been a favourable settlement for her, but rather she rejected a Rule 49 motion, and she acquiesced and did not protest Whaley Estate Litigation’s making arrangements to reschedule a hearing of the assessment of its accounts. Ms. Atkinson says she was not obliged to make and that she did not make any election in the summer of August 2017 to choose between enforcing the alleged settlement or pursuing the assessment procedure. The truth of the matter, however, is that in the circumstances of this case, she knew that she had choices, she did have to make a choice, and she did in fact make a choice to not enforce the settlement but rather to continue with the assessment procedure.

[70] The principle from the Charter Building Co. decision is actually baked into Rule 49, which states:

Failure to Comply with Accepted Offer

49.09 Where a party to an accepted offer to settle fails to comply with the terms of the offer, the other party may,

(a) make a motion to a judge for judgment in the terms of the accepted offer, and the judge may grant judgment accordingly; or

(b) continue the proceeding as if there had been no accepted offer to settle.

[71] Ms. Atkinson’s acquiescence in rescheduling or allowing the assessment procedure to be rescheduled was a decision against enforcing the settlement. She apparently decided that she could do better for herself by continuing her assessment procedure. It was within her power to immediately bring a Rule 49 motion which, if successful, would have relived her of her liability and the threat of the costs of the assessment procedure. The assessment would become moot if the Rule 49 motion was successful. She made a decision not to bring a Rule 49 motion because she apparently thought, colloquially speaking, that she could have her cake and eat it too. This is not permitted by Rule 49.09.

[72] Assuming that there was a settlement agreement to enforce and assuming that it was Whaley Estate Litigation that had repudiated or failed to perform the settlement agreement, then the principle from the Charter Building Co. decision - and from Rule 49 - provides that Ms. Atkinson has the choice to move to enforce the settlement by a Rule 49 motion or to treat the settlement as an end and to resume the assessment procedure. In the case at bar, she knew or ought to have known that she had this choice, and she decided to proceed with the assessment. Having made this choice, the principle from Charter Building Co. and from Rule 49 holds that she cannot bring a motion to enforce the settlement agreement.

[73] Ms. Atkinson, however, submits that Whaley Estate Litigation is estopped from relying on the principle from the Charter Building Co. because of what it represented to the Assessment Officer when it opposed her request to adjourn the assessment hearing until the court heard her Rule 49 motion. This submission also fails.

[74] First, the matter of the application of the Charter Building Co. principle is not a matter like a party agreeing to toll the running of the application of a limitation period or foregoing pleading a defence. The application of the Charter Building Co. case and Rule 49 goes to the jurisdiction or substantive law authority of the court to enforce a settlement, and the parties cannot confer or take away the court’s jurisdiction.

[75] Second, in the immediate case, the principle of the Charter Building Co. and Rule 49 applied as of the fall of 2018 when Ms. Atkinson chose to proceed with the assessment procedure, which is to say she chose not to proceed with the Rule 49 motion. The point of the Charter Building Co. is that the party cannot change their mind, and so what Whaley Estate Litigation may have said later is ultimately irrelevant.

[76] Third, Whaley Estate Litigation never represented that it would not rely on the Charter Building Co. case, which it was not aware of until my April 2019 decision, else it would have mentioned the principle to Justice Diamond. There is no basis for an estoppel.

[77] Fourth, what Whaley Estate Litigation actually represented was that Ms. Atkinson’s position in determining what was the quantum of the law firm’s account would not be prejudiced by proceeding with (not adjourning) the assessment hearing and conversely the assessment procedure would not prejudice the outcome of the Rule 49 motion; they were separate matters. This representation was true. Whether or not the assessment procedure was adjourned pending the Rule 49 motion would not have affected the outcome of the Rule 49 motion; the die (the death, not the dice) had been cast for that motion when Ms. Atkinson chose to pursue and continue the assessment procedure in the summer and fall of 2017, which foreclosed her from subsequently changing her mind and pursuing the enforcement of the settlement.

[78] Fifth, for there to have been an estoppel, Ms. Atkinson must have detrimentally relied on the representation. There was no detrimental reliance in the immediate case. Ms. Atkinson did not rely on the non-application of the Charter Building Co. principle, which she also was unaware of until my April 2019 decision.

[79] Sixth, there was no detrimental reliance for the additional reason that Ms. Atkinson never changed her position in light of anything Whaley Estate Litigation said. Her position was that she could proceed with the assessment procedure reserving the right to bring a Rule 49 motion. The debate between the parties that embroiled Justice Diamond and the Assessment Officer was about whether the Rule 49 motion should come before or after the assessment hearing. As matters have unfolded, the Rule 49 motion has come during the assessment hearing, but Ms. Atkinson never altered her position that she could bring a Rule 49 motion, which she did do, now twice, before the completion of the assessment procedure.

[80] In short, having now heard argument about the application of the Charter Building Co. principle, which is baked into Rule 49, I see no reason to reverse the decision I made in April and this provides a third reason for dismissing this reconsideration motion.

D. Conclusion

[81] For the above reasons, Ms. Atkinson’s application is dismissed, this time with costs.

[82] If the parties cannot agree about the matter of costs, they may make submissions in writing beginning with Whaley Estate Litigation’s submissions within twenty days from the release of these Reasons for Decision, followed by Ms. Atkinson’s submissions within a further twenty days.

Perell, J.

Released: June 19, 2019

COURT FILE NO.: CV-15-519879-0000

DATE: 2019/06/19

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Christina Atkinson

Applicant

• and -

WHALEY ESTATE LITIGATION

Respondent

REASONS FOR DECISION

PERELL J.

Released: June 19, 2019

[^1]: Atkinson v. Whaley Estate Litigation, 2019 ONSC 2383.

[^2]: 2011 ONCA 487 at paras. 30-31.

[^3]: 1711811 Ontario Ltd. v. Buckley Insurance Brokers Ltd., 2014 ONCA 125; Brown (Trustee of) v Municipal Property Assessment Corp., 2014 ONSC 7137 (Div. Ct.); Montague v. Bank of Nova Scotia (2004), 2004 CanLII 27211 (ON CA), 69 O.R. (3d) 87 (C.A.), leave to appeal refused [2004] S.C.C.A. No. 79 (S.C.C.); Holmes Foundry Ltd. v. Point Edward (Village), 1963 CanLII 197 (ON CA), [1963] 2 O.R. 404 (C.A.).

[^4]: Clatney v. Quinn Thiele Mineault Grodzki LLP, 2016 ONCA 377; Cookish v. Paul Lee Associates Professional Corp., 2013 ONCA 278; Stoughton Trailers Canada Corp. v. James Expedite Transport Inc., 2008 ONCA 817.

[^5]: El-Khodr v. Lackie, 2018 ONCA 66; Mujagic v. Kamps, 2015 ONCA 360, leave to appeal refused [2015] S.C.C.A. No. 330 (S.C.C.); First Elgin Mills Developments Inc. v. Romandale Farms Ltd., 2015 ONCA 54.

[^6]: Mujagic v. Kamps, 2015 ONCA 360, leave to appeal refused [2015] S.C.C.A. No. 330 (S.C.C.).

[^7]: Marlin-Watson Home Corp. v. Taylor, [1991] O.J. No. 1888 (Gen. Div.); Jimenex v. Markel Insurance Co. of Canada (2000), 2000 CanLII 22389 (ON SC), 49 O.R. (3d) 402 (S.C.J.).

[^8]: Capital Gains Income Streams Corp. v. Merrill Lynch Canada Inc. (2007), 2007 CanLII 39604 (ON SCDC), 87 O.R. (3d) 464 (Div. Ct.); Exponents Canada Inc. v. Sharma, 2015 ONSC 2940; Bayerische Landesbank Girozentrale v. R.S.W.H. Vegetable Farmers Inc., (2001), 2001 CanLII 28050 (ON SC), 53 O.R. (3d) 374 (S.C.J.).

[^9]: Hodaie v. RBC Dominion Securities, 2011 ONSC 6881, affd [2012] O.J. No. 5428 (C.A.); Wilson v. BKK Enterprises Inc., 2015 ONSC 4394; Ferron v. Avotus Corp., 2005 CanLII 29655 (ON SC), [2005] O.J. No. 3511 (S.C.J.); Cellular Rental Systems Inc. v. Bell Mobility Cellular Inc., [1995] O.J. No. 721 (Gen. Div.), affd [1995] O.J. No. 3773 (C.A.).

[^10]: H. (J.) v. Smith, [2007] O.J. No. 269 (S.C.J.); Perri v. Concordian Chesterfield Co., [2003] O.J. No. 5852 (S.C.J.).

[^11]: Hodaie v. RBC Dominion Securities, 2011 ONSC 6881, affd [2012] O.J. No. 5428 (C.A.).

[^12]: Fox Estate v. Stelmaszyk (2003), 2003 CanLII 36922 (ON CA), 65 O.R. (3d) 846 (C.A.); Richard (Litigation Guardian of) v. Worth, (2004), 2004 CanLII 34517 (ON SC), 73 O.R. (3d) 154 (S.C.J.); Milios v. Zagras (1998), 1998 CanLII 7119 (ON CA), 38 O.R. (3d) 218 (C.A.); Smith v. Robinson (1992), 1992 CanLII 7504 (ON SC), 7 O.R. (3d) 550 (Gen. Div.).

[^13]: Milios v. Zagras (1998), 1998 CanLII 7119 (ON CA), 38 O.R. (3d) 218 (C.A.); C.I.B.C. v. Weinman, [1992] O.J. No. 302 (Gen. Div.); Draper v. Sisson, [1991] O.J. No. 1207 (Gen. Div.).

[^14]: Srebot v. Srebot Farms Ltd., 2013 ONCA 84.

[^15]: Wilson v. Johnston, 2015 ONSC 3016 (Master); Sentry Metrics Inc. v. Ernewein, 2013 ONSC 959.