Court File and Parties
COURT FILE NO.: 16-68000 DATE: 07/06/2022
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
CHERIE HELEN CAMPBELL Plaintiff/Respondent
– and –
ESTATE OF J.R. MAURICE GAUTREAU and BURKE-ROBERTSON LLP Defendants/Moving Parties
Counsel: Self-Represented Robin Brown for Defendants/Moving Parties
HEARD: June 7, 2022
JUDGMENT
Justice Sally Gomery
[1] The defendants seek to enforce a settlement between the parties concluded on April 28, 2021.
[2] Maurice Gautreau was a lawyer with Burke-Robertson LLP. In 1983, he drafted a will for Cherie Campbell’s father, Howard Campbell. Mr. Campbell died in 2014. Various of his children commenced an application and three actions, including this one, seeking an interpretation of the 1983 will. In these proceedings, they alleged that Mr. Gautreau’s drafting was negligent.
[3] The defendants say that, at a mediation of the three actions held on April 28, 2021, Ms Campbell agreed to accept $20,000 in return for a full and final release of her claims against them and a consent dismissal of this action without costs. Following the mediation, she confirmed the settlement by email and executed a release. She has since, however, refused to sign a consent to dismiss the action.
[4] Under r. 49.09 of the Rules of Civil Procedure, where a party who accepted an offer to settle fails to comply with the terms of the offer, the other party may make a motion for judgment on the terms of the settlement. The Court of Appeal set out a two-part test for a r. 49.09 motion in Bank of Montreal v. Ismail, 2012 ONCA 129, at para. 5. The moving party must persuade the motion judge that:
- An agreement to settle was reached; and
- On all of the evidence, the settlement should be enforced.
[5] On the question of whether a settlement agreement was reached, ordinary contract law principles relating to offer and acceptance apply. The court must determine whether the parties had a mutual intention to create a legally binding contract, and whether they reached an agreement on all essential terms of the settlement: Olivieri v. Sherman, 2007 ONCA 491, at paras. 41 and 44, and Smith v. Coca Cola Bottling Co., 2017 ONSC 396, at para. 8.
[6] The defendants’ lawyer of record, Allison Klymyshyn, has sworn an affidavit in support of the motion. She has produced her email exchange with Ms. Campbell right after the April 28, 2021 mediation. Ms. Klymyshyn’s email to Ms. Campbell, which was cc’d to the mediator, reads as follows:
Hello Cherie,
This will confirm that you have accepted our offer of $20,000.00 all-inclusive to settle your court action against Maurice Gautreau and Burke Robertson LLP.
In exchange for the payment of $20,000.00 by my clients, you have agreed to execute a Full and Final Release in the form that I will send you. The Release includes terms requiring that you keep the details of the settlement confidential.
Also in exchange for the $20,000.00 payment, you will consent to dismissal of the court action on a without costs basis. My client will bear the cost of obtaining the dismissal order and will provide you with a copy
I will, before Monday, email you the Release that we require be signed and witnessed. I understand you will be able to take it to be printed next week and can have your signature witnessed at that time. You will need to return a signed copy of the document to me. Ideally you will mail me an original signed Release, but if that is not possible, we will accept a faxed or emailed copy with your signature and that of the witness.
Please confirm to me that we should make the cheque payable to "Cherie Campbell".
I look forward to your confirming email.
Regards, Allison
[7] Ms. Campbell’s response, emailed five minutes later and also copied to the mediator, reads simply: “I agree. The cheque should be payable to Cherie H. Campbell”.
[8] Six days later, Ms. Klymyshyn sent another email to Ms. Campbell attaching a full and final release for her review. It set out, in great detail, the claims that Ms. Campbell agreed to give up in return for the defendants’ payment to her of $20,000. Ms. Campbell signed the release, in front of a witness who counter-signed it. She returned the executed document to Ms. Klymyshyn on May 10, 2021. Ms. Klymyshyn acknowledged receipt of the signed release and told Ms. Campbell that she would let her know when she had received the settlement funds from her client.
[9] On May 17, 2021, Ms. Klymyshyn sent Ms. Campbell a consent to a dismissal order for her signature, along with a draft order. These were both absolutely standard documents. In her accompanying email, Ms. Klymyshyn reassured Ms. Campbell that the consent would not be filed with the court until the settlement amount had been paid to her, and asked Ms. Campbell to let her know if she had any questions or concerns.
[10] Ms. Campbell never returned the signed consent. In emails she sent to Ms. Klymyshyn in May and June 2021, she claimed that she had been cheated of her fair share of her father’s estate, and that she would protest the crooked Canadian legal system by picketing outside the Ottawa courthouse. On June 16, 2021, Ms. Klymyshyn advised her that she had a cheque for the settlement amount. She asked Ms. Campell for a mailing address or, in the alternative, suggested that she pick the cheque up from Ms. Klymyshyn’s office. In her responding email, Ms. Campbell wrote: “Allison, I am not taking a $ 20,000.00 cheque from Cavanagh LLP. Instead, I am going to let the world know what crooks you are ... putting me through misery for years and then thinking that amount is sufficient! HELL NO!” Other emails with a similar tone and content followed.
[11] On September 20, 2021, the parties attended a case conference before Associate Justice Kaufman to discuss a potential resolution of the situation. Ms. Campbell confirmed that she would not honour the settlement agreement. This led the defendants to bring this motion.
[12] Based on the evidence on the motion, a reasonable person would conclude that the parties intended on April 28, 2021, to create a legally binding agreement. The deal was reached during a mediation, the purpose of which was to negotiate a settlement of the actions against the defendants. Ms. Klymyshyn’s email following the mediation set out the terms of the parties’ agreement in simple, straightforward language. Ms. Campbell immediately confirmed her agreement with and acceptance of the deal. She reaffirmed her acceptance of the agreement on May 10, 2021, when she executed the full and final release forwarded by Ms. Klymyshyn. It was only when she received the draft dismissal order and consent for her signature that she changed her mind.
[13] At the motion hearing, Ms. Campbell pointed out that she had no legal representation at the mediation and claimed that felt that she had no choice but to accept the settlement offer, even though she thought it was outrageously low. She said that it was only when she received the draft order that she realized that she was a person under disability and so should not have agreed to the deal. She denied that she signed a release on May 10, 2021.
[14] Ms. Campbell’s statements at the motion are not supported by any evidence. She did not file an affidavit. There is no basis to question the genuineness of the May 2021 signed and witnessed release filed by the defendants. There is no evidence that Ms. Campbell is a person who lacks the capacity to enter into contracts independently, or that she did not understand the terms of the agreement reached on April 28, 2021.
[15] Even if I accepted, in the absence of any evidence, that Ms. Campbell felt pressured to accept the $20,000 offer at mediation, she has not explained why she did not get legal advice after the mediation, or why she did not seek to resile from the agreement in response to Ms. Klymyshyn’s email later that day in which she specifically asked Ms. Campbell to confirm her understating of the settlement terms.
[16] I therefore find that the parties intended to enter into a binding settlement agreement on April 28, 2021. I further find that the parties’ agreement, as set out in Ms. Klymyshyn’s April 28, 2021 email to Ms. Campbell, contained all of the essential terms of a settlement. Pursuant to the email:
- Ms. Campbell accepted the defendants’ offer of $20,000.00 all-inclusive to settle her court action against Maurice Gautreau and Burke Robertson LLP.
- In exchange for the payment of $20,000.00, Ms. Campbell agreed:
- to execute a full and final release prepared by defence counsel, which would include a term requiring Ms. Campbell to keep the terms of the settlement confidential; and
- to consent to a dismissal of this court action on a without costs basis, with the costs of obtaining the dismissal order to be borne by the defendants.
[17] There is nothing ambiguous about any of these terms, and there was no essential element of a valid settlement agreement that was missing.
[18] If an agreement to settle is reached, the agreement should be enforced providing there is (1) no genuine mistake as to the terms of the settlement, (2) there is no misunderstanding with respect to certain fundamental facts, (3) there was no duress while signing, and (4) the agreement is not illegal: Cox v. Baker, 2019 ONSC 2859, at para. 40.
[19] As already mentioned, at the hearing Ms. Campbell claimed that she agreed to settle under duress. There is no evidence of this, nor is there any evidence of any mistake, misunderstanding, or illegality in respect of the settlement. Ms. Campbell has simply decided, after agreeing to the settlement terms and signing a final release, that she could have and should have done better. A party’s after-the-fact change of heart is not a justification to refuse to enforce the parties’ agreement.
[20] The motion is therefore granted, with partial indemnity costs of $3,289, which shall be deducted from the settlement funds owed to Ms. Campbell. This action is dismissed without costs. Ms. Campbell has the choice, within the next 30 days, of either providing the defendants’ lawyer with her address, so that a cheque can be delivered to her, or arranging to attend at her office, so that she can pick the cheque up. If she does not take either of these steps in the next 30 days, the defendants can pay the funds into court in full and final satisfaction of the parties’ settlement.
Justice Sally Gomery
Released: June 7, 2022
COURT FILE NO.: 16-68000 DATE: 07/06/2022
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
CHERIE HELEN CAMPBELL Plaintiff
-and-
ESTATE OF J.R. MAURICE GAUTREAU and BURKE-ROBERTSON LLP Defendants
JUDGMENT
Justice Sally Gomery
Released: June 7, 2022