COURT FILE NO.: CV-14-513402

DATE: 20191028

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: North Toronto Chinese Alliance Church, Plaintiff

AND:

Roderick John Byrnes, a.k.a. Rob Byrnes, Chan & Associates and Byrnes & Associates, Defendants

BEFORE: Pollak J.

COUNSEL: Sean S. Carter, for the Plaintiff

Roderick John Byrnes, for the Defendant in person

HEARD: September 18, 2019

ENDORSEMENT

[1] This is a motion by the Plaintiff, North Toronto Chinese Alliance Church (“NTCAC”), for judgment against the Defendants in accordance with the terms of an accepted offer pursuant to Rule 49.09.

[2] The Defendant, Mr. Byrnes has also brought a motion to have NTCAC’s action dismissed with costs payable to Mr. Byrnes.

[3] On December 19, 2018, counsel for NTCAC was advised by the Registrar that their consent dismissal Order could not be granted because LawPRO was not “On the Record” for Mr. Byrnes, who was representing himself.

[4] NTCAC commenced an action against the Defendant Mr. Byrnes and his former law firm for professional negligence. Mr. Byrnes had represented NTCAC in an action against an engineering firm. In this Action, NTCAC sought $2,574,000 in damages for negligence against the Defendants resulting from the dismissal for delay of that action.

[5] Mr. Byrnes, who was insured by LawPRO, represented himself, but LawPRO retained counsel to investigate NTCAC’s Claim.

[6] NTCAC and LawPRO settled the Action against all Defendants, including Mr. Byrnes, who did not consent to the settlement, on a without costs basis in exchange for a $7,500 payment from LawPRO to NTCAC on Mr. Byrnes’ behalf.

[7] LawPRO advised Mr. Byrnes of its intention to accept the offer to settle from NTCAC on his behalf and relies on the LawPRO Insurance Policy (the “Policy”), which it submits provides it the contractual right and authority to settle the claim against Mr. Byrne’s without his consent. As an “insured person” Mr. Byrnes is contractually bound by the Policy.

[8] Mr. Byrnes’ objection to the settlement is that he is entitled to a payment of costs from NTCAC for defending himself in the action. NTCAC’s position on this motion, is that the action was settled on a without costs basis by LawPRO, which had authority to settle the action. The settlement funds have been paid to NTCAC and Mr. Byrnes’ counterclaim in the Action remains. It is submitted that there is a dispute between Mr. Byrnes and LawPRO which must be decided in the binding arbitration process provided for in the Policy and not on this motion.

[9] LawPRO relies on a term of the Policy, which provides LawPRO with the contractual right to settle the Action against Mr. Byrnes’, without his consent. For any disputes with lawPRO, Mr. Byrnes has an arbitration dispute resolution mechanism under the Policy.

[10] On November 28, 2018, Mr. Byrnes filed a Notice of Motion for a further and better affidavit of documents and a Supplementary Notice of Motion seeking dismissal of the Action with costs payable to himself. The motion was adjourned on consent to April 29, 2019. NTCAC responded to Mr. Byrnes’ motion by seeking judgment on the terms of the accepted offer. On April 29, 2019, a Master held that he had no jurisdiction to determine the enforceability of a settlement, which must be decided by a Judge.

[11] The issue on these motions is whether judgment should be granted in accordance with the terms of the settlement agreement entered into between NTCAC and LawPRO on August 10, 2018, notwithstanding the fact that Mr. Byrnes who is self-represented did not agree to the settlement terms and has incurred costs of defending the action.

[12] The Policy provides that LawPRO may settle any claim without the insured’s consent if proper notice is given to the insured. The relevant sections are:

B. Defence settlement expenses;

O. Compromise or settlement; and

G. Assistance and cooperation of the insured.

[13] The provisions of the Policy are clear. Mr. Byrnes, as an insured person, is contractually bound by the Policy and is therefore subject to the terms of that Policy. I find that its terms clearly give LawPRO the right to settle the claim against Mr. Byrnes in the Action.

[14] Mr. Byrnes does have a remedy with respect to any dispute he has with LawPRO of arbitration, pursuant to the Policy.

[15] For the above noted reasons, I find that NTCAC’s motion to enforce the settlement should be granted. It follows that Mr. Byrnes’ motion for a dismissal of the action with costs payable to himself must be dismissed.

Costs

[16] At the beginning of the hearing of these motions, the parties agreed that costs of $2,000 on a partial indemnity basis be awarded to the successful party. As the Plaintiff was successful on these motions, it is entitled to costs of $2,000 payable by Mr. Byrnes.

[17] Should the Plaintiff wish to make submissions that costs on a higher scale should be awarded, written submissions may be made as follows:

The Plaintiff submissions no more than 3 pages in length by 12 p.m. on November 11, 2019 and Mr. Byrnes’ responding submissions no more than 3 pages in length by 12 p.m. on November 19, 2019.

Pollak J.

Date: October 28, 2019