COURT FILE NO: 18-75802
DATE: 2021/11/12
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Sara Paladeau, Plaintiff
AND
Bassam Saoud, Defendant (moving party)
BEFORE: The Honourable Justice C.T. Hackland
COUNSEL: Marc Binavince, for the Plaintiff
Pasquale Santini, for the Defendant
HEARD: November 10, 2021
ENDORSEMENT
[1] The defendant moves under Rule 49.09(a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, to enforce a settlement of the plaintiff’s motor vehicle personal injury action herein. The evidence clearly demonstrates that the action was settled between the plaintiff’s former counsel and the defendant’s counsel. The relevant email correspondence, which is before the court, establishes that a settlement was reached whereby the plaintiff’s action would be dismissed without costs and the defendant would pay the sum of $609.04 as a contribution to the plaintiff’s disbursements.
[2] The plaintiff subsequently declined to dismiss her action or sign the release provided to her former counsel. The cheque in the amount of $609.04 which had been delivered in escrow was returned to defendant’s counsel. Plaintiff’s former counsel then obtained an order removing them as counsel of record for the plaintiff. The defendant moved to enforce the settlement, which, following several adjournments, came before the court today.
[3] The plaintiff contends that she ought not to be held to this settlement because she does not recall clearly authorizing her former counsel to enter into the settlement on her behalf. She feels that her former counsel did not adequately explain why she should abandon her case. It may well be that there were communication issues between the plaintiff and her former counsel, although in her cross-examination the plaintiff seems to acknowledge acquiescing in the advice she received from her former counsel, that her action needed to be withdrawn.
[4] The case law reflects that the court has a narrow discretion to refuse to enforce settlements reached between counsel on behalf of their respective clients, although the discretion can be exercised in very limited circumstances. The reason the discretion is narrow is because the policy of the law is to strongly encourage negotiated settlements and to uphold the value that people must adhere to their bargains.
[5] The type of situation where a settlement might not be enforced would be where the settlement is markedly inadequate and prejudicial to the client, particularly when the opposite party can be taken to have colluded in bringing about a clearly improvident settlement or engaged in seriously inappropriate conduct leading to the settlement. There must be clear injustice to the client in the circumstances, see Eouanzoul v.Lycee Francaise de Toronto, [2014] O.J. No. 6225 at para.15. I find there to be no such circumstances in this case.
[6] I accept the evidence of the plaintiff’s former counsel, obtained at Rule 39 examinations prior to this motion, that she advised her client to withdraw her action for sound reasons: there was a serious issue as to whether the nature and duration of the plaintiff’s injuries would meet the statutory (Insurance Act, R.S.O. 1990, c. I.8) threshold or would exceed the statutory deductibles or the statutory accident benefits; there were serious issues about the plaintiff being found to be contributorily negligent in the collision; the plaintiff had returned to work after the accident thereby eliminating a potential loss of income claim and major disbursements would need to be incurred to obtain the requisite expert reports in circumstances where the wisdom of pursuing the action was very much in doubt.
[7] In any event, there is no evidence before the court that the advice provided to the plaintiff by her former solicitor was inappropriate in the circumstances and indeed the opposite appears to be true. A difficult aspect of motor vehicle personal injury litigation is that many litigants, while suffering significant injuries in collisions, ultimately recover to a degree where they no longer meet the statutory threshold or their damages do not exceed the statutory deductibles or the relevant collateral benefit set-offs. Significantly, as noted previously, the plaintiff appears not to have had a viable future loss of income claim.
[8] Plaintiff’s counsel suggested that defence counsel should have recognized that the disbursements being sought by the plaintiff’s former counsel ($1,200) were unduly low, given amounts mentioned at an earlier point in time when the plaintiff’s former counsel was negotiating with an insurance adjuster. As noted, the defendant offered to pay $609.04 being about half the disbursements which the plaintiff’s former counsel was seeking. In any event, there is no evidence that the quantum of accrued disbursements identified by the plaintiff’s former counsel was not accurate. It cannot be reasonably suggested that defence counsel had the obligation to query whether the plaintiff’s former counsel was seeking a sufficient contribution toward her client’s disbursements. Nor would it have been proper for defence counsel to inquire as to what communications the plaintiff’s former counsel may have had with the plaintiff about settling the case. Conversations along these lines would have been improper for either counsel to engage in, having regard to the dictates of solicitor client privilege.
[9] Finally, the plaintiff’s counsel raised and then appropriately abandoned the suggestion that the defendant’s counsel who initially had carriage of this motion (who was not defendant’s counsel who appeared on this motion), had behaved improperly in some procedural steps he had taken. These suggestions are entirely without merit and should not have been raised.
[10] I find that there are no special circumstances surrounding this settlement that would justify the court in exercising its discretion to refuse to give effect to the settlement. Accordingly, I declare that a settlement of the within action was reached in the terms described above. Further, I order, pursuant to Rule 49.09(a) that the settlement is to be enforced according to its terms and the within action will be dismissed without costs. The release and payment ($609.04), will be provided to the plaintiff through her present counsel and she will execute the release.
[11] If costs are sought by any party to this motion, I will require a concise written submission within two weeks of the release of this endorsement and any party against whom costs are sought may respond within two weeks of receiving an opposite party’s submission. In the event that no submissions are received within this timeframe, the court will be deemed to have ordered that there be no costs of the motion.
Date: November 12, 2021
COURT FILE NO: 18-75802
DATE: 2021/11/12
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Sara Paladeau, Plaintiff
AND
Bassam Saoud, Defendant (moving party)
COUNSEL: Marc Binavince, for the Plaintiff
Pat Santini, for the Defendant
ENDORSEMENT
Justice Charles T. Hackland
Released: November 12, 2021