COURT FILE NO.: CV-16-24044; CV-16-24044-A1; CV-17-25007
DATE: 20221201
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
CV-16-24044 and CV-16-24044-A1
EZIO FENOS
Plaintiff
– and –
FACCA INCORPORATED
Defendant
– and –
THE MANUFACTURERS LIFE INSURANCE COMPANY
Third Party
Paul Fruitman, for the Plaintiff
David Cowling, for the Defendant
Gordon Jermane, for the Third Party
AND BETWEEN:
CV-17-25007
EZIO FENOS
Plaintiff
– and –
THE MANUFACTURERS LIFE INSURANCE COMPANY
Defendant
Paul Fruitman, for the Plaintiff
Gordon Jermane, for the Defendant
HEARD: May 16, 2022
REASONS ON MOTION TO ENFORCE SETTLEMENT
MUNROE J.
[1] This is a dispute over the wording of a release.
[2] There are four cases and a pending appeal involving these parties.
- On November 26, 2014, Ezio Fenos (“Fenos”) filed a Statement of Claim, CV-14-21561, against 15 named defendants, including Facca Incorporated (“Facca”), seeking relief under s. 248 of the Business Corporations Act, R.S.O. 1990, c. B. 16 (“OBCA”) (“Oppression Action”);
- By Statement of Claim issued August 24, 2016, CV-16-24044, Fenos sued Facca to enforce an employment termination agreement (“Employment Action”);
- On September 29, 2016, Facca made a Third Party Claim, CV-16-24044-A1, against The Manufacturers Life Insurance Company (“Manulife”) for contribution and indemnity (“Third Party Action”);
- On May 16, 2017, Fenos filed a Statement of Claim, CV-17-25007, against Manulife seeking insurance coverage and damages (“Coverage Action”); and
- An appeal, Court of Appeal File No. C-67-864, followed the October 27, 2019 ruling by Pomerance J. granting a summary judgment against Facca in the Employment Action and denying summary judgment against Manulife in the Coverage Action (“Appeal”).
[3] All parties agree that four of the five actions have been settled: the Employment Action, the Third Party Action, the Coverage Action, and the Appeal.
[4] The present disagreement is over the wording of the release. The concern of the two main parties – Fenos and Facca – is the impact of the release on the outstanding Oppression Action.
[5] Before examination of the release positions, a review and understanding of the actions is necessary.
BACKGROUND
[6] Facca is a locally based heavy construction business that is family owned and operated. In various forms it has been in operation since 1955. In the late 1950s, Sante Facca (“Sante”) was joined in the business by his cousin, Luigi Fenos (“Luigi”), and his son-in-law, Mario Gardonio (“Mario”). By the early 1980s, Sante sold the business to Luigi and Mario. The four sons of Luigi and Mario – the Oppression Action defendants Donato Gardonio (“Don”), Anthony Gardonio (“Tony”) and George Fenos (“George”), and the Oppression Action plaintiff Ezio Fenos (“Fenos”) – began working in the business. Facca was incorporated on April 1, 1991. Shortly thereafter, the four sons, Don, Tony, George, and Fenos, together with Mario, owned all the common shares in Facca, each with 20 common shares. Over time both Mario and Luigi left the business, Luigi in 1996 and Mario when he died in 2007.
[7] In late 2005, 2090193 Ontario Inc. (“HoldCo”), a holding company and a defendant in the Oppression Action, was incorporated. In 2006, the five owners of Facca – Mario, Don, Tony, George, and Fenos – exchanged their Facca common shares for an equal amount of HoldCo common shares – each owning 20 percent of the common shares. Holdco owns all the shares of Facca. When Mario died in 2007, he left his shares to his wife, the Oppression Action defendant Regina Gardonio (“Regina”).
[8] Fenos worked for Facca until he was terminated on January 5, 2015. Fenos owned 20 percent of the common shares of HoldCo at all material times.
Oppression Action
[9] On November 28, 2014, approximately five weeks before his Facca employment was terminated, Fenos started the Oppression Action against Facca, its affiliates, and the individual defendants, alleging they had oppressed or unfairly prejudiced, or unfairly disregarded the interests of Fenos contrary to s. 248 of the OBCA.
[10] In his Statement of Claim, Fenos, made multiple allegations of the conduct that “oppressed, unfairly prejudice[d] or unfairly disregard[ed]” his interests including one of constructive dismissal:
They constructively dismissed the Plaintiff without cause, and or justification; alternatively, they substantially altered the nature, scope and duties of his employment with FACCA Inc., so as to amount in law, to constructive termination of his employment with FACCA Inc.[^1]
[11] In addition, Fenos sought a variety of relief including the following:
i) Damages in the amount of $100,000 for bad faith or unfair dealing with the Plaintiff as an employee and/or shareholder ultimately resulting in the Plaintiff’s wrongful termination from FACCA Inc;
j) Damages in the amount of $100,000 for the intentional infliction of mental suffering and/or emotional distress arising out of the alleged and/or real reasons for and the manner of the Plaintiff’s wrongful termination;[^2]
Employment Action
[12] On August 24, 2016, Fenos started the Employment Action against Facca alleging a failure to comply with the terms of the “Termination Agreement”. According to Fenos, Facca failed (1) to make enumerated payments to Fenos, and (2) to continue disability insurance coverage of Fenos on Facca’s group policy.
[13] The “Termination Agreement” is Facca’s January 5, 2015 letter to Fenos confirming his employment termination and providing Fenos with a severance package that included the following:
- One payment of $56,250 upon the return of company property;
- Two payments of $75,000 - the first on September 30, 2015 and the second on September 30, 2016 subject to Fenos seeking reasonable, alternative employment;
- Fenos return of company property to Facca; and
- “Group insurance benefits currently provided by Facca will be maintained … through to December 31, 2016.”
[14] Facca prefaced its package with the following paragraph:
To assist in your transition we are going to provide you with the following notice and severance package related to your employment with Facca. This package is inclusive of any and all obligations that the Company may have arising from the Employment Standards Act, the Human Rights Code or any other statutory or common law obligation that the Company may have resulting from your employment with Facca[.]
[15] Fenos, through his counsel, responded by letter to Facca dated January 13, 2015. In pertinent part, the letter stated:
- Fenos has complied with the return of company property;
- “You should forthwith comply with all terms of your unilateral termination notice including severance payments and group insurance benefits undertaken by you;” and
- “It goes without saying that our pleadings, as filed with the Superior Court of Justice, stand notwithstanding your Notice of Termination.”
Third Party Action
[16] On September 29, 2016, Facca commenced a Third Party Claim against Manulife alleging Manulife wrongfully declined long term disability coverage to Fenos on Facca’s group policy. Facca seeks indemnity and contribution from Manulife if Facca is adjudged liable to Fenos.
Coverage Action
[17] On May 16, 2017, Fenos commenced a coverage action against Manulife alleging wrongful denial of long term disability coverage on Facca’s group policy.
Summary Judgment
[18] Competing summary judgment motions were made and heard together by Pomerance J. in the Employment Action, the Third Party Action, and the Coverage Action: see Fenos v. Manulife, 2019 ONSC 6861 (“Fenos v. Manulife”).
[19] Pomerance J. provided the following helpful overview at paras. 2 and 3:
Ezio Fenos (“Fenos”) was terminated from employment by Facca Incorporated (“Facca”). The parties entered into an agreement whereby Fenos would receive certain payments if he “sought reasonable alternate employment” during the designated time period. Some time after his termination, Fenos became disabled as a result of serious illness. He was, therefore, unable to seek alternate employment. Facca argues that Fenos’ failure to seek alternate employment relieves the company of its obligation to pay. The company seeks summary judgment on that basis. Fenos argues that his inability to seek alternate employment excused him of that obligation. He seeks summary judgment against the company on the basis that they are required to make the payments.
After his illness developed, Fenos applied for long-term disability benefits from The Manufacturers Life Insurance Company (“Manulife”), the insurance company with whom Facca held a group policy. Manulife denied the claim arguing that Fenos’ illness occurred after the coverage period. Manulife says that the coverage period was the eight weeks provided for in the Employment Standards Act 2000, S.O. 2000, c. 41. Fenos says that the coverage period was the 24 months promised by Facca upon termination. In its third party claim against Manulife, Facca supports Fenos’ claim against the insurance company. Fenos and Facca seek summary judgment against Manulife. Manulife resists the motion, arguing that there are genuine issues for trial.
[20] The results were mixed. The court granted Fenos’ summary judgment motion against Facca concluding, at para. 35:
There is no genuine issue for trial as it relates to the termination agreement. … I am satisfied that summary judgment should be issued against Facca in relation to Fenos’ claim to enforce the termination agreement and to receive the two outstanding payments of $75,000 each.
[21] Justice Pomerance, however, dismissed the summary judgment motions of Fenos and Facca against Manulife, holding that there was a genuine issue for trial: see Fenos v. Manulife, at para. 55.
Appeals
[22] Leave to appeal to the Divisional Court was sought. By judgment dated April 19, 2021, the Divisional Court dismissed the motion for leave to appeal the decision of Pomerance J.: see Fenos v. Facca Incorporated, 2021 ONSC 2553.
[23] On December 27, 2019, Facca filed a Notice of Appeal to the Court of Appeal for Ontario concerning the decision of Pomerance J. in the Employment Action and the Third Party Action.[^3]
[24] On May 25, 2020, Fenos filed a Notice of Cross-Appeal concerning costs.[^4]
[25] The appeal was scheduled to be heard on December 6, 2021.[^5]
[26] Advising the Court of Appeal for Ontario that the matters in the Employment Action and the Third Party Action, including the appeal, had been settled in their entirety, Lauwers J.A. of the Court of Appeal adjourned the appeal sine die given the existence of a dispute over the terms of the release.[^6]
SETTLEMENT
[27] Before the scheduled appeal hearing, the parties settled.
[28] On November 18, 2021, Facca and Manulife offered to settle the Employment Action, the Third Party Action, the Coverage Action, and the related appeal as follows:
Our client and Manulife are prepared to settle the action and appeal in Superior Court of Justice Court File Nos. CV-16-24044, CV-16-24044-A1, and CV-17-25007 (and Court of Appeal File No. C-67-864) on the following terms:
Manulife and Facca, together, will pay Mr. Fenos $250,000.00;
Mr. Fenos will dismiss his claims on a with prejudice and without costs basis, Facca will dismiss its claims on a with prejudice and without costs basis, and Mr. Fenos will provide a Full and Final Release to Manulife and Facca related to those claims, and Facca will also provide a Full and Final Release to Manulife;
The parties will bear their own costs; and
This offer will remain open for acceptance until November 26, 2021.[^7]
[29] On November 22, 2021, Fenos counter-offered with an all-in lump sum payment of $300,000 payable within 60 days. Fenos’ response also included the following: “Paul [Fruitman] and I [Vlad Calina] are happy to make ourselves available for a call to explore settlement further. That said the daylight between our clients is related to quantum so there does not appear to be much to hash out.”[^8]
[30] On November 25, 2021, Facca and Manulife accepted Fenos’ counter-offer by e-mail.
My client is prepared to accept your client’s offer.
Manulife and Facca have agreed to an apportionment of the $300,000.00 and will advise in the final settlement documents and releases which our respective offices will prepare.[^9]
[31] The wording of the release quickly became contentious.
[32] On November 29, 2021, Facca circulated draft minutes of settlement that included a release. The proposed release included the following:
[Fenos hereby releases Facca and Manulife] from all manner of claims, actions, causes of action, complaints, demands or damages of whatever nature, past, present or future, known or unknown, developed or undeveloped, from any time in the past to the date hereof, which the Releasor has, may have or may hereafter have of any description whatsoever arising with regard to all claims asserted in the Action[^10] [CV-16-24044, CV-16-24044-A1, and CV-17-25007] or claims that are or could have been advanced in the Action [CV-16-24044, CV-16-24044-A1, and CV-17-25007]; and
[Fenos releases Facca] from any and all obligations the Defendant may have arisen or arising from the Employment Standards Act, the Human Rights Code, or any other statutory or common law obligation that the Defendant may have resulting from the Plaintiff’s employment with the Defendant.[^11]
[33] Fenos did not agree to the breadth of the proposed release. Numerous emails were exchanged. The position of Fenos is captured in his counsel’s December 1, 2021 email:
[T]he Minutes of Settlement have to explicitly carve out the ongoing oppression action. Mr. Fenos is willing to settle the employment claim and the coverage claim, but the fact of his termination is relevant to that action. A settlement of the claims asserted in these actions cannot impact the oppression action.
[T]he releases have to reflect the same carve-out of the oppression action. Facca and Manulife are entitled to a basic release of the claims asserted in the action. If your position is that we have a binding agreement based on earlier exchanges between counsel, that is the extent of the release.[^12]
[34] On December 2, 2021, in an email counsel for Fenos further explained his position:
Our client will not execute your form of Minutes of Settlement or release. They go far beyond what was contemplated in counsel’s correspondence; the terms of settlement were simply that Ezio Fenos would discontinue CV-16-24044 and CV-17-25007 in return for a lump-sum payment of $300,000 payable in 60 days. There was no mention of a release.
Accepting that your client is entitled to a basic release, that release cannot extend beyond what is strictly necessary to end the claims in the CV-16-24044 and CV-17-25007 actions.[^13]
[35] Various drafts were exchanged but an impasse developed.
[36] By email dated January 13, 2022, counsel for Facca attached another proposed release that provides, in pertinent part, as follows:
WHEREAS … Fenos … is a plaintiff to various actions in the Ontario Superior Court of Justice, Court File Nos. CV-16-24044, CV-16-24044-A1, and CV-17-25007, and a respondent and cross-appellant at the Court of Appeal, Court File No. C67864, … in relation to his employment at Facca Incorporated, Facca Incorporated’s employment obligations under contract, statute, and common law to Fenos, his termination of employment at Facca Incorporated, and the non-payment of insurance benefits by [Manulife] and associated matters (collectively, the “Action”);
… Fenos … hereby releases … Facca … [Manulife] … from all manner of claims, actions, causes of action, complaints, demands for damages of whatever nature, which [Fenos] has, or may hereafter have of any description whatsoever arising out of the facts and claims asserted or described in the Action.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, [Fenos] declares that the intent of this Full and Final Release is to conclude all issues arising from the matters set forth above, below, and from the Action.
WITHOUT FURTHER LIMITING THE GENERALITY OF THE FOREGOING [Fenos] releases:
a. Facca … from any and all obligations the Defendant may have arisen or arising from the Employment Standards Act, the Human Rights Code, or any other statutory or common law obligation that the Defendant may have resulting from the Plaintiff’s employment with the Defendant.[^14]
[37] By email dated April 9, 2022, counsel for Fenos provided his proposed release. In pertinent part, it provides as follows:
WHEREAS … Fenos … is a plaintiff in Ontario Superior Court of Justice Court File Nos. CV-16-24044, CV-16-24044-A1, and CV-17-25007, and a respondent and cross-appellant at the Court of Appeal, Court File No. C67684 (collectively, the “Action”);
… Fenos … hereby releases … Facca … and [Manulife] … from all manner of claims, actions, causes of action, complaints, demands or damages of whatever nature that [Fenos] raised in the Action and otherwise which [Fenos] could reasonably have raised in the Action with respect only to the termination of his employment and the insurance benefits that are the subject of the Action.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, [Fenos] declares that the intent of this Full and Final Release is to conclude all issues arising from this Action, and otherwise with respect only to the termination of his employment and the insurance benefits that are the subject of the Action.
WITHOUT FURTHER LIMITING THE GENERALITY OF THE FOREGOING [Fenos] releases:
a. Facca … from any and all obligations relating only to the termination of his employment, including those under the Employment Standards Act, the Human Rights Code, or any other statutory or common law obligations.
- FOR GREATER CERTAINTY, nothing in this release will prevent [Fenos] from leading evidence at the trial of the action under Court File No. CV-14-21561 seeking remedies for oppression.[^15]
LEGAL PRINCIPLES
[38] A settlement agreement is a contract: see Olivieri v. Sherman, 2007 ONCA 491, at para. 41.
[39] Absent a contractual agreement to the contrary, a settlement agreement implies a promise to furnish a release: see Hodaie v. RBC Dominion Securities, 2011 ONSC 6881, at para. 18 (“Hodaie SC”), aff’d 2012 ONCA 796, at para. 3 (“Hodaie CA”); Huma v. Mississauga Hospital, 2020 ONCA 644, at para. 19 (“Huma”).
[40] “[T]he implied obligation to furnish a release is to provide one that does not go beyond the terms to which the parties have agreed: see Hodaie [SC], at para. 19”; see Huma, at para. 20. “The form of the release required [is] a simple release of the … claim.”: see Hodaie CA, at para. 3.
[41] The proffering of an overly broad release does not negate the existence of a settlement without evidence that the settlement was conditioned on the execution of the release proffered: see Huma, at para. 21.
POSITIONS OF THE PARTIES
Fenos
[42] Fenos does not challenge the settlement agreement. Fenos asserts that he, Facca, and Manulife have a clear settlement agreement on the following terms:
- the dismissal of the Employment Action, the Third Party Action and the Coverage Action;
- the dismissal of the Appeal;
- the payment of $300,000 to Fenos; and
- no costs.
[43] Fenos does challenge the breadth of the release proposed by Facca.
[44] According to Fenos, the proposed Facca release goes far beyond giving effect to the settlement agreement and, in essence, provides a release to the Oppression Action, a case not included in the agreement.
[45] Facca is only entitled to a release that gives effect to the settlement agreement, namely the dismissal of the Employment Action, the Third Party Action, and the Coverage Action. It should go no further. For clarity, the release should specify that it does not include the Oppression Action. Finally, any impact of a proper release on the Oppression Action should be left to the trial judge on that case.
Facca
[46] Facca does not challenge the settlement agreement. Facca agrees it is a binding agreement.
[47] Citing Terranata Winston Churchill Inc. v. Teti Transport Ltd., 2020 ONSC 7577 (“Terranata”), Facca argues for a broad general release to bring an end to all claims flowing from the Termination Agreement and Fenos’ employment. Although its proposed release does not intentionally seek to craft a release of the Oppression Action, the impact of Facca’s proposed release on that action is for the Oppression Action trial judge. This court is to resolve the release dispute based on the terms of the settlement agreement. Facca simply seeks a release with regard to all the employment claims.
[48] Facca strongly opposes the proposed release of Fenos especially because it seeks to carve out the Oppression Action. This was not contemplated by the settlement agreement and it is wholly inappropriate to add it now.
Manulife
[49] Manulife and Facca agreed on the apportionment of the $300,000 payment to Fenos. That apportionment is not contested.
[50] Manulife is agreeable to both proposed releases.
PRINCIPLES APPLIED
[51] Both sides agree that they have reached a settlement agreement but disagree on the wording of the release. The disagreement concerns the release on the Employment Action and its impact on the unresolved case, the Oppression Action. Fenos seeks a release that includes an explicit exclusion of the Oppression Action. Facca seeks a broad general release that facially may include the Oppression Action.
[52] In my view, both positions are incorrect. Both proposed releases are overly broad.
[53] The release must reflect the agreement reached by the parties. Both proposed releases introduce terms beyond what is necessary to end the three identified claims and one appeal, on a without costs basis, upon the payment of $300,000. Those are the terms of the settlement agreement.
[54] Facca’s last proposed release of January 13, 2022, includes the following:
WHEREAS … Fenos … is a plaintiff to various actions in the Ontario Superior Court of Justice, Court File Nos. CV-16-24044, CV-16-24044-A1, and CV-17-25007, and a respondent and cross-appellant at the Court of Appeal, Court File No. C67864, … in relation to his employment at Facca Incorporated, Facca Incorporated’s employment obligations under contract, statute, and common law to Fenos, his termination of employment at Facca Incorporated, and the non-payment of insurance benefits by [Manulife] and associated matters (collectively, the “Action”);
… Fenos … hereby releases … Facca … [Manulife] … from all manner of claims, actions, causes of action, complaints, demands for damages of whatever nature, which [Fenos] has, or may hereafter have of any description whatsoever arising out of the facts and claims asserted or described in the Action.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, [Fenos] declares that the intent of this Full and Final Release is to conclude all issues arising from the matters set forth above, below, and from the Action.
WITHOUT FURTHER LIMITING THE GENERALITY OF THE FOREGOING [Fenos] releases:
a. Facca … from any and all obligations the Defendant may have arisen or arising from the Employment Standards Act, the Human Rights Code, or any other statutory or common law obligation that the Defendant may have resulting from the Plaintiff’s employment with the Defendant.
[Emphasis added.]
[55] I share the concern of Fenos that the broad language in Facca’s proposed release could be construed to include the Oppression Action, a result clearly not included in the settlement agreement.
[56] Facca responds that it is entitled to the broad release proposed, citing principally Terranata, at para. 39. I do not read Terranata as calling for a broad general release in all cases. Indeed, at para. 31, Vella J. repeats the guiding principle: “[T]he court will imply that the parties agreed to sign a standard form general release consistent with the settlement – nothing more and nothing less.” (Emphasis added.) Wording that can be construed to include the Oppression Action into this settlement is contrary to the settlement.
[57] On the other hand, Fenos seeks to add the specific exclusion of the Oppression Action into the release as follows:
… Fenos … hereby releases … Facca … and [Manulife] … from all manner of claims, actions, causes of action, complaints, demands or damages of whatever nature that [Fenos] raised in the Action and otherwise which [Fenos] could reasonably have raised in the Action with respect only to the termination of his employment and the insurance benefits that are the subject of the Action.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, [Fenos] declares that the intent of this Full and Final Release is to conclude all issues arising from this Action, and otherwise with respect only to the termination of his employment and the insurance benefits that are the subject of the Action.
WITHOUT FURTHER LIMITING THE GENERALITY OF THE FOREGOING [Fenos] releases:
a. Facca … from any and all obligations relating only to the termination of his employment, including those under the Employment Standards Act, the Human Rights Code, or any other statutory or common law obligations.
- FOR GREATER CERTAINTY, nothing in this release will prevent [Fenos] from leading evidence at the trial of the action under Court File No. CV-14-21561 seeking remedies for oppression.
[Emphasis added.]
[58] Paragraph 4 of Fenos’ proposal is an agreement that the release will not bar the leading of evidence in the Oppression Action trial. This was not a part of the settlement agreement and thus cannot be part of the release.
[59] The other paragraphs seeking to limit the release “only to the termination of his employment” are a characterization of the Employment Action. In Facca’s proposed releases, its characterization is broader and includes Fenos’ employment with Facca. Neither position was part of the settlement agreement and thus neither should be part of the release.
[60] An additional word is necessary for clarity. There may be a possible overlap between the Employment Action and the Oppression Action.
[61] The Oppression Action was commenced approximately five weeks before the termination of Fenos. In the Oppression Action Statement of Claim, Fenos identifies constructive dismissal as one alleged oppressive conduct:
They constructively dismissed the Plaintiff without cause, and or justification; alternatively, they substantially altered the nature, scope and duties of his employment with FACCA Inc., so as to amount in law, to constructive termination of his employment with FACCA Inc.
[62] Further, the following are among the various types of relief sought:
i) Damages in the amount of $100,000 for bad faith or unfair dealing with the Plaintiff as an employee and/or shareholder ultimately resulting in the Plaintiff’s wrongful termination from FACCA Inc;
j) Damages in the amount of $100,000 for the intentional infliction of mental suffering and/or emotional distress arising out of the alleged and/or real reasons for and the manner of the Plaintiff’s wrongful termination;[^16]
[63] The Employment Action was commenced almost two years later and alleged Facca’s failure to comply with the terms of the Termination Agreement.
[64] Fenos and Facca did not agree on the impact, if any, the settlement of the Employment Action would have on the Oppression Action. It simply was not part of the settlement agreement.
[65] Both Fenos and Facca urge that the extent to which, if at all, the settlement of the Employment Action impacts the Oppression Action should be left to the Oppression Action trial judge. I agree.
[66] A final word about Manulife. I respectfully decline to address release matters that are not disputed. This includes releases to Manulife that concern the apportionment, between Manulife and Facca, of the payment to Fenos. The apportionment is of no concern to Fenos and is agreed upon by Facca and Manulife. There is no dispute.
CONCLUSION
[67] Accordingly, and for the foregoing reasons, Fenos’ motion to enforce the settlement agreement is granted but only by a simple release of the claims made in the Employment Action, the Third Party Action, the Coverage Action, and the Appeal. Fenos’ motion is denied to the extent of rejecting his proposed release. Facca’s proposed release also is rejected.
[68] The release shall be worded simply as follows:
WHEREAS Ezio Fenos is a plaintiff in Ontario Superior Court of Justice Court File Nos. CV-16-24044, CV-16-24044-A1, and CV-17-25007, and a respondent and cross-appellant at the Court of Appeal, Court File No. C67684 (collectively, the “Action”);
AND WHEREAS Ezio Fenos has agreed to settle the Action against Facca Incorporated and The Manufacturers Life Insurance Company on a with prejudice and without costs basis;
IN CONSIDERATION of the payment of Three Hundred Thousand Dollars ($300.000) and other good and valuable consideration, the receipt and sufficiency of which is hereby irrevocably acknowledged:
FOR THE SAID CONSIDERATION Ezio Fenos hereby releases Facca Incorporated and The Manufacturers Life Insurance Company from all claims Ezio Fenos raised in the Action.
COSTS
[69] No costs shall be awarded to either Fenos or Facca, success was divided.
[70] If Manulife seeks costs and the parties are unable to resolve the issue of costs, Manulife shall provide me with its bill of costs and a short factum on entitlement within 30 days of the date of the release of these reasons. Fenos and/or Facca, as the case may be, shall respond in 30 days of service of the costs submissions.
Original Signed by “Justice K.W. Munroe”
Kirk W. Munroe
Justice
Released: December 1, 2022
COURT FILE NO.: CV-16-24044; CV-16-24044-A1; CV-17-25007
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
EZIO FENOS
Plaintiff
– and –
FACCA INCORPORATED
Defendant
– and –
THE MANUFACTURERS LIFE INSURANCE COMPANY
Third Party
AND BETWEEN:
EZIO FENOS
Plaintiff
– and –
THE MANUFACTURERS LIFE INSURANCE COMPANY
Defendant
REASONS ON MOTION TO ENFORCE SETTLEMENT
Munroe J.
Released: December 1, 2022
[^1]: Statement of Claim, para. 1(b)(iv). [^2]: Statement of Claim, paras. 1(i) and (j). [^3]: Affidavit of Stephanie Conte affirmed February 18, 2022 (“Conte Affidavit”), at Ex. L. [^4]: Conte Affidavit, at Ex. M. [^5]: Conte Affidavit, at Ex. N. [^6]: Conte Affidavit, at Exs. Z, BB, and CC. [^7]: Email from D. Cowling to P. Fruitman dated November 18, 2021, Conte Affidavit, at Ex. O, and Affidavit of Alexander Boissonneau-Lehner sworn March 14, 2022 (“Boissonneau-Lehner Affidavit”), at Ex. A. [^8]: Email from V. Calina to D. Cowling and G. Jermane dated November 22, 2021, Conte Affidavit, at Ex. P, and Boissonneau-Lehner Affidavit, at Ex. B. [^9]: Email from D. Cowling to V. Calina dated November 25, 2021, Conte Affidavit, at Ex. Q, and Boissonneau-Lehner Affidavit, at Ex. C. [^10]: The first “whereas” clause of the proposed release identifies “the Action” as Ontario Superior Court of Justice, Court File Nos. CV-16-24044, CV-16-24044-A1, and CV-17-25007, the Employment Action, the Third Party Action, and the Coverage Action respectively. [^11]: Attachment to email from S. Sigler to V. Calina, dated November 29, 2021, Conte Affidavit, at Ex. R. [^12]: Email from V. Calina to S. Sigler dated December 1, 2021, Conte Affidavit, at Ex. S, Boissonneau-Lehner Affidavit, Ex. G. [^13]: Email from V. Calina to S. Sigler dated December 2, 2021, Conte Affidavit, at Ex. V. [^14]: Attachment to email from D. Cowling to V. Calina and G. Jermane, dated January 13, 2022, Boissonneau-Lehner Affidavit, Ex. K. [^15]: Attachment and email from P. Fruitman to S. Sigler, G. Jermane, and D. Cowling, dated April 9, 2022, Affidavit of Stephane Conte, sworn May 11, 2022, at Ex. A. [^16]: Statement of Claim, paras. 1(i) and (j).