COURT FILE NO.: CV-14-5128
DATE: 2021 06 04
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
OMAR FAROOQ KALAIR
Peter Waldman, for the Plaintiff
Plaintiff
- and -
KABIR UDDIN KABIR, ZEBINISA KABIR, SYMA KABIR, AMIR KABIR, ASHRAF CHATHA, ISHRAT CHATHA, MUNIR (MOONEY) FERRIS, GELAREH JIN, HAIG DERUSHA, JULIAN B. KELLER, DR. ATIF KABIR, COLDWELL BANKER HARTLAND REALTY, BROKERAGE, CARLOS RITES and ANTONIA VICOSO
Jody Brown, for the Defendant, Julian B. Keller
Defendants
HEARD: May 13th, 2021
REASONS FOR JUDGMENT
LEMAY J
[1] This motion is part of a larger complicated action involving Mr. Kalair and a whole series of Defendants. The litigation flows from proceedings between Mr. Kalair and his former wife, Ms. Syma Kabir. There are more than ten other defendants in this action.
[2] The portion of the action that I am dealing with involves Mr. Kalair’s claims against Mr. Julian Keller, a lawyer. Mr. Keller acted for Ms. Kabir on the sale of the matrimonial home, which was carried out pursuant to a Court Order. The materials filed on the motion do not make it clear as to when, precisely, the home was sold.
[3] Mr. Kabir commenced his action against Mr. Keller by way of a notice of action in November of 2014. A statement of claim was served and filed sometime in late 2014. An order was made by Barnes J. in May of 2016 requiring Mr. Kabir to produce an Affidavit of Documents and to pay costs in the sum of $750.00. This order has not been complied with. Counsel for Mr. Kabir and counsel for Mr. Keller had ongoing discussions about this order and about settlement throughout the summer and fall of 2016.
[4] Mr. Keller alleges that Mr. Kabir’s claim with him was settled on November 30th, 2016 and seeks an order from this Court enforcing the settlement. In the alternative, Mr. Keller seeks an order dismissing Mr. Kabir’s claim either for delay or for breaching the May 12th, 2016 Order of Barnes J. Finally, if the Court is not prepared to either enforce the settlement or dismiss the action, Mr. Keller seeks security for costs. Mr. Kabir opposes all the relief sought by Mr. Keller.
[5] For the reasons that follow, I find that Mr. Kabir’s claim against Mr. Keller was resolved by way of the communications between counsel leading up to November 30th, 2016. As a result, it is not necessary to consider the other issues that have been raised by Mr. Keller.
Background Facts
a) The Parties and the Claim
[6] Mr. Kalair was married to Ms. Syma Kabir. They separated sometime prior to 2014. They owned a matrimonial home, which was ordered to be sold by way of a Court order. Mr. Kalair’s approval as to the sale of the matrimonial home was dispensed with by the Court order.
[7] Julian Keller is a lawyer who practices real estate law. He was retained by Ms. Kabir to sell the matrimonial home. Rather than registering the Court Order dispensing with Mr. Kalair’s approval of the sale of the matrimonial home, Mr. Kalair attended at Mr. Keller’s office and signed an Acknowledgement and Direction that had the Agreement of Purchase and Sale attached to it. This attendance appears to have been arranged by Mr. Haig De Rusha, who was Mr. Kalair’s family law lawyer at the time.
[8] Sometime after the home was sold, on November 14th, 2014, Mr. Kalair commenced an action against a whole series of Defendants. As I understand it, the allegations against Mr. Keller are that Mr. Kalair told him not to sell the home and Mr. Keller ignored Mr. Kalair’s instructions.
[9] Mr. Keller retained the firm of Goldblatt Partners to act for him on Mr. Kalair’s claim. This retainer was a LawPRO retainer, which is clear from the materials that were filed on this motion. Mr. Charles Sinclair has been the lead lawyer from Goldblatt Partners associated with this file and has provided an Affidavit and a Responding Affidavit on this motion.
[10] Mr. Kalair was represented by Robyrt Regan from sometime in March of 2016 through to Mr. Regan’s suspension by the Law Society on December 15th, 2016. Mr. Regan returned Mr. Kalair’s file to him on December 29th, 2016.
b) The Progress of the Litigation
[11] The litigation did not progress in any meaningful way between November 14th, 2014 and March of 2016. As a result, Mr. Sinclair filed a motion to compel the production of an Affidavit of Documents on March 31st, 2016. That motion was resolved by way of the consent Order of Barnes J. dated May 12th, 2016.
[12] The Order of Barnes J. required Mr. Kalair to produce an Affidavit of Documents by May 20th, 2016 and to pay costs in the sum of $750.00 within thirty (30) days which would have been by June 11th, 2016. This was a consent order. However, its terms remain unfulfilled even up to the day that the motion before me was heard.
[13] After the Order of Barnes J. was made, the parties then engaged in settlement discussions. On July 19th, 2016, Mr. Regan asked Mr. Sinclair for a copy of the retainer agreement between Mr. Kalair and Mr. Keller. On July 26th, 2016, Mr. Sinclair responded that no such document existed as Mr. Kalair had not retained Mr. Keller at any point. Mr. Keller had been acting for Ms. Kabir throughout as the property was in Ms. Kalair’s name alone.
[14] Mr. Regan did not respond to Mr. Sinclair’s July 26th, 2016 e-mail for several weeks. There was then a series of e-mail exchanges between the two of them that culminated in a November 30th, 2016 conversation and subsequent e‑mail that Mr. Sinclair says encapsulated the final resolution of the claim.
[15] Mr. Regan and Mr. Kalair disagree as to the effect of the November 30th, 2016 e-mail and the conversation that led up to it. I will set out the details of the e-mails and conversations leading up to the final e-mail more fully below.
c) Events Subsequent to November 30th, 2016
[16] Mr. Regan was suspended by the Law Society of Ontario on December 15th, 2016. Mr. Regan returned the file to Mr. Kalair on December 29th, 2016.
[17] Between that time and approximately December of 2019, I am not aware of any steps being taken by Mr. Kalair with respect to this litigation. In December of 2019, Mr. Kalair brought a motion for a status hearing before Baltman J. This status hearing was adjourned to a long motion on July 15th, 2020. The July 15th, 2020 date did not proceed.
[18] Counsel for Mr. Kalair alleges (at paragraph 27 of his factum) that “[d]ue to the COVID-19 pandemic and the closure of the courts, this motion could not be heard on [the July 15th, 2020] date.” This statement is unsupported by any Affidavit evidence. Further, this statement is clearly contradicted by the Central West Region practice directions in force at the time. Those practice directions make it clear that the Court began honouring previously booked motion dates as of the beginning of June 2020. For a fuller discussion on this point, see VIVO v. GEO T.V. 2020 ONSC 6095 at paras. 11-16. I do not have to decide why the status hearing was not heard in July of 2020. I simply point this fact out to ensure that the record is clear and that Counsel understands that the Court was operating in the summer of 2020.
[19] In any event, this motion was separated from the rest of the issues raised at the status hearing and scheduled separately. This motion was originally returnable on February 9th, 2021. It was ultimately heard before me on May 13th, 2021.
[20] I have received both an Affidavit and a Supplemental Affidavit from Mr. Kalair for the purposes of this motion. These Affidavits indicate that Mr. Kalair was involved in a Motor Vehicle Accident in 2013 and that Mr. Kalair has been in receipt of Ontario Disability Support Program benefits since 2017. Mr. Kalair has deposed that the ODSP payments are his only source of income. Mr. Kalair also deposes that he never provided instructions to settle this case.
[21] I have also received an Affidavit from Mr. Robyrt Regan who was Mr. Kalair’s counsel at the material times. I will review all of this material in my analysis of the issues.
Issues
[22] The following issues have been raised by Mr. Keller on this motion:
a) Was this matter resolved on November 30th, 2016?
b) Should this matter be dismissed for breach of the Order of Barnes J. and/or for delay?
c) If the action is permitted to proceed, should Mr. Kalair be required to post security for costs?
[23] I will set out my resolution of the first issue below. Given my disposition of this issue, it is not necessary to resolve the other two issues.
[24] I also note that Mr. Kalair’s counsel has raised the question of whether the second and third issues are properly before me or should have been raised as part of the Status Hearing, which was scheduled separately. Given my disposition of the first issue, it is not necessary to resolve that question either.
[25] I will, however, make one comment about Mr. Kalair’s position on the second and third issues. Counsel for Mr. Kalair alleges that, by raising these questions as part of a supplementary notice of motion, Mr. Keller was engaged in an abuse of process. I reject that assertion. Although I have not determined either issue, on the facts of this case they are not unreasonable questions for Mr. Keller to have raised with the Court.
Issue #1 – Was the Matter Resolved on November 30th, 2016?
[26] Yes.
[27] Counsel for Mr. Keller relies on Rule 49.09 and the decision of this Court in Gelber v. Gelber 2020 ONSC 1570. Rule 49.09 provides that, where a party to an accepted offer fails to comply with the terms of the offer, the other party may bring a motion for judgment in accordance with the terms of the accepted offer. That is the relief sought by Mr. Keller in this case.
[28] Specifically, Mr. Keller seeks an order that:
a) Mr. Kabir’s claim against Mr. Keller shall be dismissed on a without costs basis;
b) Mr. Kabir will sign a release in LawPRO’s standard form; and
c) Mr. Keller and LawPRO will forgive and/or not enforce the prior costs award of Barnes J.
[29] Gelber, supra sets out the following principles that the Court considers when determining whether a matter has been settled (paras. 18 to 21):
[18] Pursuant to rule 49.09 and the jurisprudence, the test for granting judgment requires the judge to consider: a) whether an agreement to settle was truly reached, and b) whether the agreement should be enforced. In determining whether an agreement has been reached, the court must find that the parties intended to create a legally binding contract and that there was an agreement on all essential terms of the settlement agreement: Olivieri v. Sherman, 2009 ONCA 772, [2009] O.J. No. 6235, at para. 41.
[19] Settlement agreements among parties should be enforced unless the court is satisfied that, in all the circumstances, there is a real risk of clear injustice: L-Jalco Holdings Inc. v. Lawrynowicz & Associates, 2018 ONSC 4002, 294 A.C.W.S. (3d) 274, at para. 34; or there is prejudice, mistake or any other “good reason not to enforce”: Sentry Metrics Inc. v. Erenwein 2013 ONSC 959, [2013] O.J. No. 685, at para. 16.
[20] A judge has discretion to refuse to enforce an agreement where: a) a material fact relevant and significant to the resolution has not been disclosed; and b) the existence of the material fact was or could reasonably have been within the knowledge of the party seeking to rely on the settlement agreement: Saballoy Inc. v. Techno Genia S.A., [1993] A.J. No 276 (Alta QB), at paras. 22-24.
[21] Where parties are engaged in litigation and have properly retained solicitors who enter into settlements on their behalf, these settlements ought to be binding upon the parties and the court should so order: Marcel Equipment Ltd. v. Equipements Benoit D’Armours et Fils Inc., [1995] O.J. No. 673 (Gen. Div.), at para. 78.
[30] The question of whether a settlement has been reached is a factual question. There are several factual considerations that lead me to the conclusion that this action was settled.
[31] First, there is the strength of Mr. Kalair’s action against Mr. Keller. Mr. Keller was not counsel to Mr. Kalair and there does not appear to be any dispute that Ms. Kabir had sole title to the matrimonial home. It is, therefore, difficult to see what duties Mr. Keller would have owed to Mr. Kalair.
[32] In his Affidavit, Mr. Kalair states that “I have a valid case against” Mr. Keller. On the evidence I have, it is difficult to see either how there is a valid case or how Mr. Keller would be responsible for any significant amount of damages. As noted at paragraph 13 no retainer agreement existed between Mr. Kalair and Mr. Keller as Mr. Keller was not acting for Mr. Kalair. I am not determining that Mr. Kalair’s case against Mr. Keller had no merit. I am only finding that there was good reason to believe that Mr. Kalair’s case against Mr. Keller was quite weak. This finding assists me in concluding that the settlement that Mr. Keller claims was reached was a reasonable settlement.
[33] In addition, by November 30th, 2016, some efforts including various correspondence, a motion and the drafting of a Statement of Defence had been undertaken by Mr. Sinclair on behalf of Mr. Keller. As a result, some costs had been incurred. Given that fact and given my observations about the merits of the case, the settlement that was offered which was a without costs dismissal plus the forgiveness of $750.00 in costs previously awarded, was not an unreasonable settlement offer for Mr. Keller to propose and for Mr. Kalair to accept.
[34] This brings me to the question of how the communications between the parties should be construed. The key e-mail is an e-mail from Mr. Sinclair on November 30th, 2016. The parties agree that there was a teleconference between Mr. Regan and Mr. Sinclair earlier that day about settling the case. The e-mail from Mr. Sinclair, sent approximately twenty minutes after the time set for the teleconference, states:
Rob – here is LawPRO's standard form release. Once you send it to me signed by your client I will take out the dismissal order. I confirm that the dismissal of the claim against Mr. Keller is on a without costs basis and that LawPRO will waive the previous cost award obtained against your client.
I look forward to receipt of the signed Release.
Charlie
[35] Mr. Sinclair’s Affidavit alleges that this e-mail represented the final settlement of the matter. Mr. Kalair and Mr. Regan disagree with that assertion. Paragraph 13 of Mr. Regan’s Affidavit states:
- With respect to Paragraph 13 of the Sinclair Affidavit, during the teleconference which took place on November 30, 2016, I confirm that Mr. Sinclair and I discussed the terms of a potential settlement, however I clearly indicated to him that any terms we agreed upon would not be binding without the approval of Mr. Kalair. Moreover, at the end of the teleconference, Mr. Sinclair indicated that he needed approval from his client regarding the waiver of the $750 costs award. As such, there I can confirm that there was no binding "deal" reached at the end of our teleconference.
[36] The history of the parties’ communications does not support Mr. Regan’s assertions, and I reject them. In order to understand why I reach that conclusion, it is necessary to lay out the communications between Mr. Sinclair and Mr. Regan in detail.
[37] As I have noted at paragraph 13, the first communication that I was referred to was the exchange about the retainer agreement. By July 26th, 2016 Mr. Regan and, by implication, Mr. Kalair, was aware of the fact that Mr. Keller had no retainer agreement with Mr. Kalair.
[38] Mr. Sinclair followed up on several occasions in August. Specifically, on August 30th, 2016 Mr. Sinclair sent an e-mail to Mr. Regan stating:
Rob – where are we on this? I don't have the $ or the affidavit of documents from your client. Any update on your discussion with your client about possibly dismissing its claim against Mr. Keller? My client is getting impatient about this – if it doesn't move forward LawPRO will want me to bring another motion.
[39] This e-mail generated a response from Mr. Regan on September 3rd, 2016 in which Mr. Regan stated that he had “just sent another e-mail to the client, recommending that he discontinue the action against your client on terms.”
[40] On September 29th, 2016, Mr. Sinclair sent Mr. Regan the standard release that LawPRO expected Mr. Kalair would sign if there was a dismissal of the action without costs. In that e-mail, Mr. Sinclair indicated that he would follow up with Mr. Regan in two weeks.
[41] Mr. Sinclair sent two subsequent e-mails to Mr. Regan asking for status updates. On October 18th, 2016, Mr. Regan sent an e-mail stating that “I am still working on my client. Getting him to “yes” is taking some doing.”
[42] Mr. Sinclair responded to this October 18th, 2016 email by way of a reply e-mail sent on November 1st, 2016. Mr. Sinclair made it clear that, if Mr. Regan did not provide Mr. Kalair’s consent to a dismissal by Friday, November 11th, 2016 then Mr. Sinclair would move the matter forward.
[43] On November 29th, 2016, Mr. Regan sent Mr. Sinclair an e-mail that stated “I believe I have my client to “YES”, subject to terms. Are you available for a teleconference tomorrow (Wednesday)?” Mr. Sinclair responded and suggested 11:30 a.m. for the teleconference.
[44] This brings me back to Mr. Sinclair’s e-mail of November 30th, 2016, reproduced at paragraph 34. I accept that this e-mail outlined the full and final settlement of the matter for the following reasons:
a) The content of the e-mail does not suggest that there are any further negotiations or consultations to be undertaken. Instead, it “confirms” the terms of the dismissal of the claim and the waiver of the previous costs award. It also reads differently than the other e-mails in the correspondence.
b) Given the lengthy delays in this case and Mr. Keller’s expressed desire to move the matter forward, anything other than a full resolution of the matter on November 30th, 2016 would have come with a deadline to accept the offer or face a further motion to move the action along.
c) Mr. Regan’s communication the previous day, in which he says that he has gotten his client to “YES” subject to terms, suggests that the teleconference was about the terms of the dismissal which was agreed to in principle. Mr. Regan’s communication from November 29th, 2016 cannot be reconciled with his assertion that the terms would not be binding without the agreement of his client after the teleconference.
[45] This last point is critical. Mr. Regan’s communication on November 29th, 2016 make it clear that Mr. Regan already had instructions from Mr. Kalair, his client. The only inference that can be drawn from the subsequent events is that Mr. Regan and Mr. Sinclair discussed terms and Mr. Sinclair advised that he would check on the waiver of the previous costs order as the final term in order to complete the deal.
[46] Mr. Sinclair’s e-mail on November 30th, 2016 simply completes the discussion and confirms that his client is prepared to agree to the terms sought by Mr. Kalair. It is, in short, confirmation of a binding settlement.
[47] I am fortified in that conclusion by the previous e-mail exchanges. Those exchanges show a lengthy history of Mr. Regan attempting to obtain Mr. Kalair’s instructions to resolve this matter. The discussion on November 30th, 2016 took place because Mr. Regan had those instructions and acted on them.
[48] Counsel for Mr. Kalair suggested that evidence might be necessary to determine whether Mr. Sinclair or Mr. Regan’s memory is more correct, and that cross-examinations had not taken place. Therefore, counsel suggested that I should dismiss the motion.
[49] I disagree with these assertions for three reasons:
a) I have set out my reasons for concluding that the documentation discloses a settlement. A settlement is clear from the documents alone and cross-examinations would not assist.
b) I have already set out a series of reasons as to why Mr. Sinclair’s evidence fits more logically with the documentary record and why I reject Mr. Regan’s assertions.
c) The evidence of both Mr. Sinclair and Mr. Regan is provided many years after the fact. As a result, the weight that should be given to the viva voce evidence is less than the weight that should be given to the documentary evidence.
[50] This brings me to Mr. Kalair’s argument that he had not given Mr. Regan authority to negotiate and resolve this case. That may well be the case. However, that is an issue between Mr. Regan and Mr. Kalair. The Courts have long held that a solicitor who has been retained to conduct litigation has an implied authority to compromise a matter by virtue of the retainer. Further, the opposing party is entitled to rely on the solicitor’s authority to compromise unless a limitation on that authority has been communicated to them. See Scherer v. Paletta 1966 CanLII 286, [1966] 2 O.R. 524 (C.A.).
[51] In this case, no limitation on Mr. Regan’s authority to settle the matter was ever communicated to Mr. Sinclair. Indeed, the opposite was communicated to Mr. Sinclair. Specifically, throughout the fall of 2016, Mr. Regan was asserting that he was having difficulties getting his client to “yes”. Then, on November 29th, 2016, Mr. Regan confirmed that he had his client to yes, subject to terms. In other words, Mr. Regan had instructions from Mr. Kalair.
[52] Mr. Regan’s evidence that any terms that were agreed-upon in the November 30th, 2016 teleconference were subject to Mr. Kalair’s approval is contradicted by his own written communications from the previous day. I reject that evidence.
[53] It was reasonable for Mr. Sinclair to assume that Mr. Regan had the authority to settle this case. Given the principles set out in Scherer, supra, the settlement is binding on Mr. Kalair and will be enforced.
Conclusion and Costs
[54] For the foregoing reasons, judgment will issue incorporating the settlement of the parties as follows:
a) Mr. Kabir’s claim against Mr. Keller shall be dismissed on a without costs basis;
b) Mr. Kabir will sign a release in LawPRO’s standard form; and
c) Mr. Keller and LawPRO will forgive and/or not enforce the prior costs award of Barnes J.
[55] The parties have both provided me with their Bills of Costs. The parties are strongly encouraged to agree on the issue of costs. If there is no agreement, then the Defendant, Mr. Keller, may make written costs submissions by no later than June 14th, 2021. Those submissions are to be no more than two (2) single-spaced pages in length exclusive of case-law and offers to settle.
[56] The Plaintiff, Mr. Kabir, may make responding written costs submission by no later than June 24th, 2021. Those submissions are to be no more than two (2) single-spaced pages in length exclusive of case-law and offers to settle.
[57] There shall be no reply submissions without my leave. The costs submissions are to be filed with the Court office through the electronic portal. A copy of those submissions is to be provided to my judicial assistant by e-mail, at karen.bunbury@ontario.ca . Both methods of filing are required.
[58] There is to be no extension in the time limits for providing costs submissions, even on consent, without my leave. If I do not receive costs in accordance with this timetable, then there will be no costs for this motion.
LEMAY J
Released: June 4, 2021
COURT FILE NO.: CV-14-5128
DATE: 2021 06 04
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
OMAR FAROOQ KALAIR
Plaintiff
- and -
KABIR UDDIN KABIR, ZEBINISA KABIR, SYMA KABIR, AMIR KABIR, ASHRAF CHATHA, ISHRAT CHATHA, MUNIR (MOONEY) FERRIS, GELAREH JIN, HAIG DERUSHA, JULIAN B. KELLER, DR. ATIF KABIR, COLDWELL BANKER HARTLAND REALTY, BROKERAGE, CARLOS RITES and ANTONIA VICOSO
Defendants
REASONS FOR JUDGMENT
LEMAY J
Released: June 4, 2021