Court File and Parties

COURT FILE NO.: CV-21-00001546

DATE: 20221219

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Zsuzsanna Knight, Applicant

AND:

Bruce Chappel, Respondent

BEFORE: J. Di Luca J.

COUNSEL: Riley Brooks, Counsel for the Applicant

Bruce Chappel, in person

HEARD: October 4, 2022 by ZOOM

ENDORSEMENT

[1] This matter originally came before me on October 4, 2022, as a motion by the applicant under Rule 49.09 of the Rules of Civil Procedure for an order that the Minutes of Settlement signed by the parties be incorporated into final orders without further input from the respondent.

[2] For reasons set out in an Endorsement dated October 5, 2022, I adjourned the motion and invited further submissions on whether this motion was properly constituted under Rule 49.09. I also invited Mr. Chappel to provide the court with copies of the surveys in his possession which he submits undermine the agreement he reached with counsel in relation to the merits of the application.

[3] Following the Endorsement, the applicant filed an Amended Notice of Motion and Supplementary Factum seeking judgment based on the agreed upon Minutes of Settlement. Mr. Chappel provided a package of material including an affidavit, surveys, a photo, maps, a credit card statement and a copy of a letter from the applicant’s counsel containing some handwritten notations.

[4] On November 30, 2022, the parties appeared before me by zoom and made additional submissions in support of their respective positions. I have considered all the submissions made and for the reasons that follow, I am prepared to grant judgment on the basis of the agreed upon Minutes of Settlement.

Background to Motion for Judgment

[5] This application concerns the overburdening of a deeded right of way by the respondent, as well as ancillary issues such as trespass, damage to property, and interference with the applicant’s use and enjoyment of her property.

[6] When this application initially came up for hearing before Dawe J. on March 29, 2022, the parties were given time to discuss a possible settlement. The respondent indicated that he was willing to have the matter mediated. The matter was adjourned pending further discussions, and Dawe J. directed that the parties have 10 days to negotiate a settlement failing which they could return before him for a case conference.

[7] The parties eventually reached an agreement and Minutes of Settlement were drafted. The Minutes of Settlement were provided to the respondent on April 5, 2022. Further negotiations ensued and revised Minutes of Settlement were drafted.

[8] On May 9, 2022, the revised Minutes of Settlement were provided to the respondent. In a covering letter, counsel advised the respondent that he was not obligated to sign the Minutes of Settlement and that if he chose to do so, he could simply return the signed copy by mail.

[9] On May 20, 2022, the respondent chose instead to drive to counsel’s Barrie office to execute the Minutes of Settlement in person. The applicant then executed the Minutes of Settlement on May 25, 2022. A conference call was held before Dawe J. at which time the parties advised that Minutes of Settlement had been agreed upon.

[10] The executed Minutes of Settlement contemplate two orders, one of which was to be registered on title. Draft orders and consents were provided to the respondent on June 23, 2022.

[11] The respondent refused to sign the consents.

[12] On September 9, 2022, the respondent sent correspondence to the applicant’s counsel in which he indicated that he is prepared to sign one of the consents, subject to deletion of the clause relating to costs, which was blank on the draft order. On this issue, the respondent indicated that the clause could be re-inserted once a judge determines the amount of costs.

[13] In relation to the second draft order, the respondent asked for clarification about the proposed registration on title. In particular, he asked whether the order was to be registered on title to his property, which he suggested does not form any part of the agreement.

[14] I pause to note that this clarification was requested despite the clear language in the draft order suggesting that the order would be registered on title on both the applicant’s and the respondent’s property.

[15] On September 21, 2022, the respondent sent by courier a letter to all the partners at the applicant’s counsel’s law firm. The letter contains accusations of bullying and pressuring by the applicant, Ms. Knight. The letter also seeks to undermine the agreed upon Minutes of Settlement and suggests that the applicant’s claim lacks a factual and legal basis. Lastly, the letter implicitly threatens a complaint to the Law Society regarding the conduct of applicant’s counsel.

[16] On that same date, counsel replied denying the various accusations and confirming that the applicant would be proceeding with this motion as scheduled.

The Position of the Parties

[17] The applicant’s position is that the test for a binding and properly enforceable settlement has been satisfied in this case and that the court should simply make the orders as contemplated by the Minutes of Settlement; see Milos v. Zagas (1998), 1998 CanLII 7119 (ON CA), 38 O.R. (3d) 218 (Ont. C.A.) and Capital Gains Income Streams Corporation. v. Merrill Lynch Canada Inc., 2007 ONCA 497.

[18] The respondent seeks to resile from the Minutes of Settlement and seeks to establish that the application is without merit. At the initial hearing of the motion, the bulk of the respondent’s submissions were aimed at arguing his substantive position on the application as opposed to explaining why he should be permitted to resile from the Minutes of Settlement.

[19] On the return of the motion, the respondent reiterated his earlier arguments and made reference to the various surveys and maps he has now filed, which he submits undermine the position taken by the applicant on the merits of the application.

Analysis and Findings

[20] The applicant advises that the Minutes of Settlement were not arrived at through an offer to settle. As such, counsel agrees that Rule 49.09 does not appear to apply to this case. That said, there is no issue that apart from Rule 49.09, the court has common law jurisdiction to enforce a settlement agreement arrived at between parties to an action or application, see Dodla v. Dodla, 2022 ONSC 5648 at paras. 14-16.

[21] On a motion to enforce Minutes of Settlement the court must address two issues: (1) was there a settlement? and (2) if there was, should the court exercise its discretion to enforce the settlement?

[22] A settlement agreement is subject to the ordinary rules of contract regarding offer and acceptance, see Hodaie v. RBC Dominion Securities et al., 2011 ONSC 6881 at para. 17, aff’d 2012 ONCA 796 and Donaghy v. Scotia Capital Inc./Scotia Capitaux Inc., 2009 ONCA 40 at para. 41, leave to appeal dismissed, 2009 CanLII 27234 (SCC).

[23] As such, the court must find that the parties had a mutual intention to create a legally binding contract, and further that they reached an agreement on all the essential terms of the settlement, see Dodla, at para. 19 and Bawitko Investments Ltd. v. Kernels Popcorn Ltd., 1991 CanLII 2734 (ON CA).

[24] I turn next to assessing the evidence and submissions before me. I note that the respondent, who is self-represented, has filed no affidavit evidence supporting his submission that he was improperly pressured into settling this matter. That said, I will consider his submissions as a rough surrogate for what he would have reduced to writing in an affidavit if he had been able to do so.

[25] I do not accept Mr. Chappel’s claim that he was inappropriately pressured into signing the Minutes of Settlement. When this application was first before Dawe J. on March 29, 2022, it was Mr. Chappel who suggested that he was willing to engage in mediation in order to settle the matter. Dawe J. granted the parties time to consider settlement and the parties availed themselves of the offer. Mr. Chappel filed no responding material on the application.

[26] I accept that the Minutes of Settlement that were ultimately signed in counterpart on May 20, 2022 and May 25, 2022 respectively, were the product of continued contemplation, negotiation, and revision based on the initial position taken by the applicant. This was not an agreement reached under time pressure or other similar circumstances. This is also not a situation where Mr. Chappel simply capitulated to counsel’s demands. The initial proposed Minutes of Settlement went through various iterations over almost two months time. Mr. Chappel asked a number of questions which counsel answered. Changes he suggested were incorporated into later versions of the settlement.

[27] Importantly, when the final version was provided to Mr. Chappel, counsel advised him that he was under no obligation to sign the final version. As well, following receipt of the final version, Mr. Chappel indicated that he was planning on attending counsel’s office in person to sign the Minutes of Settlement. He did so, and raised no further issues until September 9, 2022, when he sent a fax suggesting that he opposed inclusion of a costs clause until such time as costs were determined by a judge, and further asking a question about the registration of the proposed order on title.

[28] It was only on September 21, 2022, that Mr. Chappel’s position transformed significantly. On that date, he sent a letter to counsel alleging that the claims underlying the application were simply false. He further alleged that he was bullied by the applicant and ultimately signed the Minutes of Settlement under duress. He also made spurious allegations against the applicant’s counsel and sent copies of the letter to all the partners at the law firm.

[29] When viewed in context, I find that Mr. Chappel’s complaints were contrived in an effort to get out of an agreement he ultimately regretted. There is nothing in the record before me that suggests that Mr. Chappel was forced or pressured into signing the Minutes of Settlement. I am satisfied that he signed them freely, knowing precisely what it was he was agreeing to.

[30] In terms of considering whether I should exercise my discretion to not enforce the agreement, I have considered the additional evidence filed by Mr. Chappel as supplemented by his oral submissions. While the precise thread of Mr. Chappel’s submissions is difficult to follow, he argues that he has not overburdened the easement by building a “second road.” In short, he believes he has done nothing wrong in relation to either his or the applicant’s property. He ultimately submits that regardless of the Minutes of Settlement, there is simply no basis for making the order sought.

[31] I disagree. In my view, none of the material tendered by Mr. Chappel viewed alone or in combination with his submissions supports his claims. As a result, I am satisfied that I should exercise my discretion to enforce the Minutes of Settlement.

[32] I have reviewed the draft order provided on this motion. It provides that the Minutes of Settlement be incorporated into two final orders. I am satisfied that the two draft final orders provided are in accordance with the Minutes of Settlement, though the orders should be revised to remove the reference to a “consent.” I invite counsel to prepare amended orders for the court to sign. I dispense with Mr. Chappel’s consent as to form and content of these orders.

[33] In terms of costs, the applicant has incurred costs of $10,587.30 all inclusive in relation to the application and a further $3,032.57 all inclusive in relation to this motion. The applicant seeks costs on a partial indemnity scale in relation to the application and on a substantial indemnity scale on the motion, in view of the unfounded allegations made by Mr. Chappel. In total, the applicant seeks costs of $10,000 all inclusive.

[34] I have reviewed the bill of costs provided and the costs claimed are reasonable. The request for substantial indemnity costs for the motion to enforce the Minutes of Settlement is also appropriate in the circumstances of this case.

[35] In view of principles of proportionality and reasonableness, I am prepared to order costs payable to the applicant by Mr. Chappel in the amount of $6,500 on the application and $2,500 on the motion, for a total of $9,000 all inclusive.

J. Di Luca J.

Date: December 19, 2022