Court File and Parties

COURT FILE NO.: CV-21-660297 DATE: 20211119 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: JOSEPH VOLPE and M.T.E.C CONSULTANTS LTD., Plaintiffs -and- KRISTYN WONG-TAM, PAUL AINSLIE, YAHOO MEDIA GROUP INC., ELIZABETH DI FILIPPO, FRESHDAILY INC., MEDIA CENTRAL CORPORATION INC., ENZO DIMATTEO, MARIA RIZZO, NORM DI PASQUALE, MARKUS DE DOMENICO, IDA LIPRETI, Defendants

BEFORE: FL Myers J

COUNSEL: Paul Slansky, for the plainitffs Emma K. Romano and Carlos P. Martins, for the Defendants

HEARD: November 18, 2021

ENDORSEMENT[^1]

[1] Relief requested: An order enforcing a settlement.

[2] Disposition: The motion is granted. Order to go on or after December 1, 2021 dismissing this action and the action commenced by the plaintiff under Court File No. CV-21-658403.

[3] The meaning of the Minutes of Settlement is clear and unambiguous. Both sides agree that they intended to create a binding settlement. They agreed on the essential terms to do so. The plaintiffs argue that the settlement terms mean something different from what they say. I note that they did not raise the issue of mistake. A unilateral mistake would not have availed them in any event.

[4] The agreement requires the defendants to post the apology at “a dedicated URL on https://www.blogto.com/”. The defendants posted it on a dedicated page in that domain https://www.blogto.com/apology. It is there. It is searchable on Google.

[5] Under para. 3 of the settlement, the plaintiffs posted on their own website and tweeted a link to the apology at the “dedicated URL on https://www.blogto.com/” by linking to https://www.blogto.com/apology.

[6] The plaintiffs are upset that the apology was not posted by the defendants on their homepage or landing page with a link to the dedicated page like the original defamatory article. Moreover, the defendants have not made the apology visible on the internal search facility on their website. But nothing in the agreement between the parties required the defendants to publish the apology exactly as the original article was published or to put it on its landing page or to make it searchable on its internal search facility. The words used in the settlement agreement viewed in light of the objective surrounding circumstances do not bear any of these meanings.

[7] In their factum the plaintiffs argued that the apology was required to be posted and remain on the homepage https://www.blogto.com/ for the entire six month period. Mr. Slansky submitted that the homepage is the URL specifically named. But that ignores the words “a dedicated URL on”. If the apology was to be posted on the home page, the agreement would have said that the apology shall be “posted on www.blogto.com” or “on the homepage www.blogto.com”. But, by requiring a “dedicated URL on” the domain it can only be referring to a separate page in the domain that would be dedicated to the apology.

[8] In oral hearing, Mr. Slansky changed the argument and submitted that everything posted on blogto has its own dedicated URL as the publisher agreed in cross-examination. Therefore, the apology should have been publicized on the homepage with a link to its dedicated page. That is just not what the agreement says. The agreement allows the plaintiffs to link to the dedicated page on the plaintiffs’ own website and Twitter account. That is how the plaintiffs assured their ability to publicize the apology. The agreement says nothing about the dedicated page being linked or referenced on the homepage of the blogto domain.

[9] Mr. Slansky argues that his clients expressly rejected a pre-contractual proposal that the apology not be displayed at all on the blogto website and that it would be displayed only on the plaintiffs’ website and their Twitter. He says that the defendants have implemented this rejected proposal. Even if the pre-contractual offers and counter-offers were admissible to interpret the terms of the agreement, I do not see how this helps. The defendants do not deny that the apology has to be displayed on its website at a dedicated URL. It is. They have not implemented the rejected proposal at all.

[10] Mr. Slansky submits that the parties intended the apology to be posted in the same manner as the original defamatory article. Even assuming that the apology might properly be referred to as a news article on the defendants’ internal processes, nothing precludes a domain owner from making its own publication choices. Nothing stopped them from burying the apology by not posting a link to it on their homepage and by not including it in its indexing for searching purposes. If the plaintiffs wanted to ensure that the apology was displayed with a particular prominence or searchable on the domain’s internal search facility, they should have ensured that the contract said so. The contract is silent on prominence of posting and searchability of the dedicated page with the apology. Instead, the plaintiffs are entitled to link to it and advertise it on their Twitter account and they have done so.

[11] Mr. Slansky says that it is the very nature of an apology that it must be seen by the people who saw the initial defamatory words. That is how an apology repairs the injury to plaintiffs’ reputations. He similarly submits that industry standards dictate that an apology must be “public”. It cannot be buried. None of this helps his clients on the interpretation of the words used in this settlement agreement. I am not at all sure that burying apologies is not the norm in the newspaper industry. But, my background understanding is not evidence. The point is that the parties agreed to specific things. If the prominence of the placement of the apology on the defendants’ website was an issue for the plaintiffs, then they needed to ensure that the agreement provided for it.

[12] The defendants did exactly what they agreed to do. The apology is public. The plaintiffs assured that. They can link to it and tweet about it every day while it remains posted on its dedicated page.

[13] None of these arguments makes the settlement agreement ambiguous. The terms are perfectly clear and understandable.

[14] Finally, Mr. Slansky argues that in the event that I find that the settlement means what I have found it to mean, then it should not be enforced. He argues that it would be contrary to the interests of justice to hold the plaintiffs to a settlement that lets the defendants bury an apology and act in the manner that the plaintiffs expressly rejected during negotiations. He submits that all circumstances, including his clients’ subjective intention, must weigh in the balancing of the interests of justice.

[15] Without deciding if that submission is correct as a matter of law, I find that it does not matter. There is nothing unjust about holding sophisticated, represented parties to the words of the settlement to which they agreed. I already found that the defendants have not implemented the offer that the plaintiffs rejected. The apology is posted on a dedicated page on the defendants’ website as agreed.

[16] In any event, it is the policy of the law to favour strongly the enforcement of litigation settlements barring real injustice. There is nothing unjust about this settlement. If the plaintiffs are unhappy in retrospect that they agreed to terms that did not cover an issue of importance to them, that type of buyers’ remorse does not undermine the justness of the settlement agreement.

[17] Mr. Slansky agreed that rather than making an order requiring his clients to discontinue the two actions, it would be more efficient and convenient for me to just order them dismissed. The outcome is the same.

[18] The quantum of costs sought by the both sides were very close. The costs should follow the events. I fix the costs at $10,000 which is a reasonable sum for the steps taken in this motion.

FL Myers J

Date: November 19, 2021

[^1]: I have changed the format of the endorsement that I original released so as to put it into the Court’s standard template format. In doing so I corrected two typos. In para. 3, I changed the word “the” to “they”. IN para. 18, I changed the word “taking” to “taken”.