Court File and Parties
ONTARIO SUPERIOR COURT OF JUSTICE
RE: MARY MAGDALENE AYLWARD, Plaintiff -and- OBY EJIDIKE carrying on business as OBY EJIDIKE LAW OFFICE, Defendant
BEFORE: FL Myers J
COUNSEL: Mary Magdalene Aylward in person Adam C. Pantel, for the defendant
HEARD: December 5, 2022
ENDORSEMENT
[1]
Background
The plaintiff Ms. Aylward sued her former lawyer Ms. Ejidike for negligence concerning a construction contract.
2Ms. Aylward suffered a fire at her house and needed to rebuild. Ms. Aylward claims that she retained Ms. Ejidike to negotiate the construction contract for her and that Ms. Ejidike was negligent in doing so.
3Ms. Ejidike defended this action on the basis that she was retained only to obtain an insurance payment from Ms. Aylward’s insurer concerning her fire loss and she did so. Ms. Ejidike pleads that she was not retained to draft or advise on the construction contract. In fact, she claims that she did not see it at all until after it was signed.
4Ms. Aylward commenced this lawsuit with a lawyer in 2020. By July, 2022, Ms. Aylward had not advanced the lawsuit beyond the pleadings stage. On July 11, 2022, Ms. Ejidike’s lawyer, Mr. Pantel, offered to agree to a dismissal of the lawsuit without costs with an exchange of releases. Otherwise, Mr. Pantel advised that his client was going to push the action forward to discovery of documents and oral examinations for discovery.
5In an email dated August 2, 2022, Ms. Aylward’s lawyer wrote to Mr. Pantel:
I just talked to [Ms. Aylward]…
The offer of a without costs dismissal (walk away) is accepted.
6The parties thereby entered into a binding settlement.
7Later that day, Ms. Aylward’s lawyer sent to Mr. Pantel a draft consent form and a draft order dismissing the action. Mr. Pantel accepted the form of those documents and sent a draft release in LawPro’s standard form.
8Ms. Aylward’s lawyer advised that he had sent the release to Ms. Aylward for signing. He raised an academic issue with the wording of the release. But he accepted the wording as proposed.
9On September 6, 2022, Ms. Aylward had her lawyer deliver to Mr. Pantel a Notice of Intention to Act in Person. She now denies that she instructed her lawyer to settle.
10The defendant moves to enforce the settlement, dismiss the action, and require Ms. Aylward to deliver her release.
11Rule 49.09 of the Rules of Civil Procedure, RRO 1990, Reg 194, provides, in part,
49.09 Where a party to an accepted offer to settle fails to comply with the terms of the offer, the other party may,
(a) make a motion to a judge for judgment in the terms of the accepted offer, and the judge may grant judgment accordingly…
12The court retains a discretion to refuse to enforce an accepted offer to settle where the interests of justice require. This assessment involves a balancing of the strong public interest in favour of settlement of civil litigation against factual issues in the case such as: the relative prejudice to the parties of enforcing or not enforcing the settlement agreement; any mistake made by a party; any abusive conduct carried out by a party; or any other special circumstances that may undermine the justness of enforcing the parties’ settlement agreement. See. for example, Magnotta v. Yu, 2021 ONCA 185, Fox Estate v. Stelmaszyk (2003), 2003 CanLII 36922 (ON CA), and Bailey v. Plaxton, 2001 CanLII 28180 (ON SC).
[13]
Submissions
At the motion, with Mr. Pantel’s consent, Ms. Ms. Aylward gave me a brief written response to the motion. She also made unsworn evidentiary submissions.
14Ms. Aylward submits that she was first subjected to mistreatment by the defendant and now by her lawyer in this action. She says she is unimpressed by the legal system.
15Ms. Aylward advises that the defendant was disbarred in 2018 partly as a result of her misconduct in relation to Ms. Aylward. Ms. Aylward says that she has lost her life savings as a result of her misadventure with her prior builder and Ms. Ejidike.
16Much of the loss claimed by Ms. Aylward is referable to the costs of her unsuccessful lawsuit and appeal against the builder. The Law Society Tribunal made findings against the defendant in relation to the hiring of the builder and the advice that she gave to the plaintiff concerning the construction contract. Those findings do not accord with the defendant’s plea in her statement of defence that she was not involved in advising on the building contract.
17Ms. Aylward advises further that her lawyer in this action agreed to take this case on contingency basis. He then told her that the case could not win so he changed his mind and required $5,000 to advance the claim.1 He pushed her for money that she did not have or to walk away.
18Ms. Aylward says that she never instructed the lawyer to settle for a dismissal without costs. She cannot fathom how she could have costs liability to the defendant so as to see any benefit from being saved the risk of payment of costs in the settlement as agreed. I am not sure I understand that submission given that Ms. Aylward’s main economic complaint in this lawsuit is from the crippling costs awarded against her in her prior litigation against the builder.
19It seems apparent that Ms. Aylward had serious grounds for complaint against Ms. Ejidike. The Law Society Tribunal upheld them. But that does not necessarily mean that she has a strong lawsuit for the damages that she claims.
20It was Ms. Aylward’s choice to sue the builder for the return of a deposit and then to appeal the adverse trial decision. Her lawyer in this action was also her lawyer on the unsuccessful appeal against the builder. Ms. Aylward confirmed that she gave him the trial transcripts and he knew the details.
[21]
Analysis
The issue for me is whether Ms. Aylward’s concerns amount to a good reason to refuse to enforce the settlement. There is ample case law that issues between a litigant and her lawyer are not a basis to undermine a settlement. A lawyer has authority to bind his or her client unless the other party to the settlement knows that the lawyer’s authority is impaired. Scherer v. Paletta, 1966 CanLII 286 (ON CA).
22I do not like the idea of consigning Ms. Aylward to yet another claim against a different lawyer. If her lawyer in this proceeding settled without her authority, then she may have a claim against him (if she can show that she had a valuable claim against Ms. Ejidike).
23I also do not like the idea of seeing a litigant with serial complaints concerning her treatment at the hands of licensed lawyers in Ontario. But it is jumping the gun to assume that just because Ms. Ejidike was found to have committed professional misconduct, that Ms. Aylward’s most recent lawyer acted at all improperly.
24If Ms. Aylward instructed her lawyer to settle and now has buyer’s remorse, there is no prejudice to her in approving the settlement. If she actually never instructed her lawyer to settle, then to seek the recovery she says she should have received in this litigation, she will have to start a new claim against her more recent lawyer. But the prior claim was still at the pleadings stage. There is little lost.
25The prejudice to Ms. Ejidike of a refusal to recognize the settlement is more significant. Even a disbarred lawyer is entitled to rely on finality in litigation.
26There is no issue of a mistake having been made. Nor is there proof of abuse. Ms. Aylward’s statements, even if sworn evidence, are just one side of the story. Her lawyer’s file has not been seen. His evidence has not been heard. Given the email that he wrote to Mr. Pantel quoted above, it seems likely that he will say that he spoke to Ms. Aylward and proceeded in accordance with her instructions. I cannot presume an outcome of the issue between Ms. Aylward and her lawyer.
27In all, I do not see a basis to refuse to enforce the settlement. The agreement is clear. The terms of the documents are clear and were agreed upon by counsel with ostensible, if not actual, authority. My visceral reaction to seeing proven misconduct by a lawyer is not a basis to undermine an apparently valid settlement entered into in the ordinary course.
[28]
Disposition
Accordingly, the action is dismissed. Mr. Pantel submits that requiring Ms. Aylward to sign a release creates yet further opportunities for issues to arise. In my view, the more efficient and affordable course is to declare that Ms. Ejidike is fully and finally released from any and all claims by or on behalf of Ms. Aylward related to the claims made or that could have been made by, for, or through her in this action.
29Ms. Aylward says that she cannot afford a costs award and her status is due to the misconduct of the defendant. However, that was the subject matter of the lawsuit. The motion was made necessary by Ms. Aylward and was successful. Costs should therefore follow the event. I order Ms. Aylward to pay Ms. Ejidike’s costs of this motion on a partial indemnity basis fixed in the amount of $1,000.
30Mr. Pantel may submit a draft order to my Judicial Assistant without seeking the approval of the form and content by Ms. Aylward. I will ensure that the formal order tracks only the operative terms of this endorsement.
FL Myers J
Date: December 5, 2022