COURT FILE NO.: CV-18-0255 DATE: 2019 07 16
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
JOACHIM ZWYGERS Applicant
David Silver, for Applicant
- and -
LINDA APPIAH-KUBI, DOREEN APPIAH-KUBI and COLDWELL BANKER RONAN REALTY BROKERAGE Respondents
Doreen Appiah-Kubi for Respondents, Linda Appiah-Kubi and Doreen Appiah-Kubi
HEARD: June 3, 2019
ADDENDUM: REASONS FOR DECISION ON APPLICATION
The Error
[1] On Thursday, July 12, 2019, I released reasons for decisions on an application brought by Zwygers (2019 ONSC 4259). I have discovered that my order (set out in paragraph 47) was drafted incorrectly. That paragraph was drafted using paragraph 39 of the Applicant’s factum as a template. However, as drafted, paragraph 47 does not reflect what my findings are in relation to this matter.
[2] As I set out in paragraph 36 of the reasons, there was a binding settlement agreement. I also stressed at paragraph 45 that the terms of the a settlement are clear and there has been no credible defence put forward on this application. I concluded that the settlement should be enforced.
Amended Paragraph 47
[3] In order to enforce the settlement, the order at paragraph 47 should read:
After considering the ability of Linda and Doreen to pay, I conclude that Zwygers is entitled to the following orders:
Linda Appiah-Kubi and Doreen Appiah-Kubi (the "Respondent Purchasers") are to pay to the Applicant Zwygers the sum of $100,000 and $5000 in legal costs, in accordance with the terms of settlement agreed upon by the parties, pursuant to Rules 14.05(3)(d) and (h) of the Rules of Civil Procedure. For clarity, I order that the sums of $100,000 and $5000 be paid in twelve monthly installments. The first remittance date for the installment payments is August 30, 2019;
In the event the Respondent Purchasers do not comply with the judgment for payment of the amounts as set out in these reasons, the Applicant is entitled to the full amount of the judgment owing at the time of default. The Applicant, in the case of default by the Respondent Purchasers may immediately take steps to bring a motion to this Court to enforce judgment;
Any Harmonized Sales Tax which may be payable on any amount pursuant to the Excise Tax Act, as amended, or any other legislation enacted by the Government of Canada;
Pre-judgment and post-judgment interest in accordance with the Courts of Justice Act, R.S.O. 1990, c. C.43, as amended.
[4] In all other respects, the reasons for decision remain the same.
Does the Court have Jurisdiction to Amend Paragraph 47?
[5] A correction at paragraph 47 of my original reasons will reflect my intent to enforce the settlement that I set out at paragraphs 15 to 19 of those reasons.
[6] In my view, I have jurisdiction to correct paragraph 47. I say this for two reasons.
[7] First, I am not functus officio, because a judgment can be said only to become final when the formal judgment is entered. I have no evidence that a formal order has been drawn up and entered: see Paper Machinery Ltd. v. J.O. Ross Engineering Corp., [1934] S.C.R. 186, [1934] 2 D.L.R. 239. Therefore, I retain jurisdiction to correct errors and omissions in the reasons.
[8] Second, counsel for Zwygers could, under Rule 59.06(1) of the Rules of Civil Procedure, move for an order amending my original order because it contains an error arising from an accidental slip or omission.
Conclusion
[9] I have the inherent jurisdiction to correct an error arising from an accidental slip or omission. I intended to enforce settlement and I found that there was no defence to the application. As I set out in paragraph 45, the settlement terms are clear. If there was a default, then the Respondent Purchasers were required to consent to a judgment. Again, Linda and Doreen do not dispute that there was a binding agreement and that their lawyer had the authority to bind them to the agreement.
[10] As of June 3, 2019 (the date of the hearing of this application), enforcing the settlement required me to specifically order judgment to Zwygers in the amount of $100,000 and $5,000 in costs. As I set out in my earlier reasons, to date, no payments have been made pursuant to the settlement and Linda and Doreen are in breach of the terms of settlement. Paragraph 47 in my original reasons does not reflect this finding. That was not my intention. I erroneously drafted the orders at paragraph 47 in such a way that is inconsistent with my reasons.
[11] I stress that this is not a “do-over” or a reconsideration of my reasons. Nor, is this an attempt to consider an issue properly dealt with by way of appeal. It is in the interest of justice that I release this addendum because Zwygers is entitled to have a proper order that reflects my findings. In order to save the parties the time and expense of having to bring a motion and another appearance in court, I have caught my error and I have decided to release this addendum.
[12] I apologize to the parties for the error.
Coroza J.
Released: July 16, 2019