Court File and Parties

COURT FILE NO.: CV-18-594174 DATE: 20210519 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: OSE IHENYEN Plaintiff AND: LAKERIDGE HEALTH CORPORATION and DURHAM REGIONAL POLICE SERVICES BOARD Defendants

BEFORE: Mr. Justice Chalmers

COUNSEL: O. Ihenyen, self-represented K. Deakon, for the Defendant, Lakeridge Health Corporation N. Marotta, for the Defendant, Durham Regional Police Services Board

HEARD: In writing

ENDORSEMENT

Overview

[1] On March 17, 2016, the Plaintiff was apprehended by Durham Regional Police Services (DRPS) officers under the provisions of the Mental Health Act, R.S.O. 1990, c. M.7. He was taken to the Lakeridge Health Centre for examination by a physician. The Plaintiff alleges that his human rights were violated because he was detained without cause, physically assaulted and improperly restrained.

[2] The Statement of Claim was issued on April 16, 2018. DRPS delivered its Statement of Defence and Crossclaim on June 7, 2018. The Lakeridge Health Corporation delivered its Statement of Defence and Crossclaim on July 16, 2019. The Plaintiff also commenced an application to the Human Rights Tribunal of Ontario (HRTO), on March 17, 2016. The named Respondents were the DRPS and the Chief of Police, Paul Martin and a DRPS civilian employee, Lisa Wright.

[3] On June 7, 2019, counsel for DRPS wrote to the Plaintiff and presented an Offer to Settle the HRTO application and the claims against DRPS in this action. The letter provided as follows:

I have instructions to resolve your civil lawsuit and your Human Rights Tribunal application as follows:

You will sign a global Full and Final release (enclosed);

You will sign a Consent for the dismissal of your civil lawsuit as against the Durham Regional Police Services Board, without costs (enclosed);

You will complete and sign a Form 9 – Request to Withdraw an Application, withdrawing your HRTO Application against all of the Respondents (enclosed);

My clients will not take steps against you to recover the legal costs they have incurred with respect to the civil lawsuit and the Human Rights Tribunal application.

The terms of this offer are not severable.

[4] On July 22, 2019, the Plaintiff e-mailed counsel for DRPS and delivered a signed consent to the dismissal of the action. On the same day, the Plaintiff wrote to the Registrar of the HRTO and filed a request to withdraw his application.

[5] On July 23, 2019, counsel for DRPS wrote to the Plaintiff and requested the signed Full and Final Release in favour of the DRPS. The Plaintiff did not respond to counsel’s letter dated July 23, 2019. Counsel followed up on September 2, 2019 and December 19, 2019. On December 25, 2019, the Plaintiff e-mailed counsel and advised that he considered the case closed. On January 2, 2020, counsel e-mailed the Plaintiff and stated that the execution of the Full and Final Release was a pre-requisite to the settlement. On January 31, 2020, counsel spoke with the Plaintiff by telephone. The Plaintiff advised that he was unwilling to execute the Full and Final Release. On February 20, 2020, counsel spoke to the Plaintiff again. Counsel for Lakeridge participated on the call. The Plaintiff again confirmed that he was unwilling to execute the release.

[6] On March 31, 2020, the Plaintiff e-mailed counsel for the Defendants and stated that he was “willing to work with (them) to resolve the matter”. There was an exchange between counsel and the Plaintiff from April 2, 2020 to May27, 2020 with respect to the wording of the release, however the parties could not come to an agreement.

Analysis

[7] The DRPS brings this motion pursuant to R. 49.09 to enforce an accepted Offer to Settle. The test on a motion under Rule 49.09 is: (i) whether an agreement to settle was reached, and (ii) whether the settlement should be enforced on all the evidence: Bank of Montreal v. Ismail, 2012 ONCA 129, at para. 5. The discretion to not enforce a settlement should be applied rarely as the policy of the court is to promote settlement: Catanzaro v. Kellogg’s Canada Inc., 2015 ONCA 779, at para. 9.

[8] I am not prepared to exercise my discretion to not enforce the settlement in this case. The letter from counsel for DRPS dated June 7, 2019 set out the essential terms of the settlement, including the term that the Plaintiff execute a release. The form of release was enclosed with the letter. The letter provides that the terms of the offer were not severable. I find that the