Court File and Parties
COURT FILE NO.: CV-20-3 DATE: 2022/06/21
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
CHARLES POISSON GENERAL CONTRACTING INC. Plaintiff
– and –
ERNEST YEE AND THIEN HUONG NGUYEN Defendants
Counsel: Robert J. Reynolds, for the Plaintiff R. Steven Baldwin, for the Defendants
HEARD: April 29, 2022
REASONS FOR DECISION
Mclean J.
[1] This is a motion for judgment. The parties contracted for the building of a house. The corporate plaintiff was the contractor. The house was to be a home for the defendants. As is sometimes the case, there were deficiencies. The plaintiff claimed that he had not been paid approximately $150,000. The other parties alleged deficiencies and counter-claimed for those. They also made a claim under the Tarion new home warranty. The litigation continued in the normal course with examinations for discovery scheduled for 29th July 2021. Before discoveries on the 28th of July, solicitors for the plaintiff made an offer to settle for the sum of $80,000. As part of that settlement, there was to be a release which comprehended the release of the Tarion warranty claim. The release was then discussed with the defendants. They refused to sign it. The difficulty was that they did not wish to release the Tarion home warranty claims that they might have in the future. The plaintiff has brought this motion to enforce the settlement, claiming that there was a clear offer to settle which was accepted by the defendants.
[2] Under Rule 49, the court must engage in a two-step process. The first step is to determine whether there was an agreement between the parties as to the terms of the settlement. The second part is an analysis to find out if there is a reason to exercise the discretion not to enforce the settlement.
[3] When we consider the matter as a whole, it is clear that there was an offer to settle which was accepted by the defendants’ solicitors. The court notes that, in the 28th of July email, the settlement was a two-part proposal. The first part was that there was an offer to settle for $54,000 plus pre-judgment interest. In that part of the settlement there was also a request for a full and final release. The other part of the settlement, as seen in the email, was $80,000 all-in. From the emails, it is clear, that the $80,000 offer was accepted. There was a discussion about a release which would seem, though it is not clear, was to be prepared by the defendant. However, the release was prepared by the plaintiff’s solicitor. It was somewhat modified by the defendants’ solicitor.
[4] The problem then arose with regard to the release which seemed to the defendants’ personally, to indicate a release of the Tarion home warranties which the defendants did not want to release. When we consider the emails between the parties, the court is satisfied on the balance of probabilities that an agreement was reached. It was made by solicitors who seemingly had authority. The court notes that it is not part of the test that the court should inquire as to the nature of that authority given solicitor-client privilege. There is no indication that the plaintiff was aware of any limitation of authority when the defendants’ solicitor accepted the offer. Therefore, it is clear to the court that the sum of $80,000 was agreed to be paid by the defendants to the plaintiff to settle the matter.
[5] This leaves the second part of the analysis that is whether the court should exercise its discretion to set aside the agreement – perhaps by mistake. The argument is that the Court of Appeal cases have said that where mistakes enter in, discretion may be exercised to obviate the agreement. However, the court finds in these particular circumstances, that is not the situation. The agreement to compromise was clearly made by solicitors and it would seem clearly within their apparent scope of authority. Indeed, according to the evidence, the defendants personally wished the matter to be over. Their only concern was with the Tarion warranties. The error, it would seem, was an error between the solicitor and his client. In this particular situation, it is not an error that the court should remediate by virtue of its discretion. It was a mistake that was made that was within the relationship between solicitor-client, and not a mistake that was made by the client itself, as is the case with some of the Court of Appeal decisions. For those reasons, the court is satisfied that the motion for judgment under Rule 49 should succeed. The court notes that the prayer for relief (at Caselines Master A2070) is simply for a judgment in the sum of $80,000, interest, and costs. After recent submissions, costs are fixed in the amount of $10,823.99. A judgment will issue in the following terms: damages, $80,000 together with interest and costs fixed in the amount of $10,823.99.
[6] There will also be any necessary ancillary orders under the Construction Lien Act, R.S.O. 1990, c. C.30.
Mr. Justice Hugh McLean
Released: June 21, 2022
COURT FILE NO.: CV-20-3 DATE: 2022/06/21
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
CHARLES POISSON GENERAL CONTRACTING INC. Plaintiff
– and –
ERNEST YEE AND THIEN HUONG NGUYEN Defendant
REASONS FOR decision
H. McLEAN J.
Released: June 21, 2022