Court File and Parties
Court File No.: CV-22-00000043-0000 Date: 2023-05-11 ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
JACOB POIRIER AND JENNIFER POIRER Jennifer Vrancic, for the Applicants Applicant
- and -
Kevin Hunt, Lucia Hunt, Ryan Hunt and Anthony Hunt Catherine E. Roberts, for the Respondents Respondent
HEARD: April 27, 2023
REASONS FOR DECISION ON MOTION
The Honourable Justice R. J Harper
Issues
[1] This is a motion for the following relief:
Judgment in accordance with the Settlement Agreement reached by the parties on November 1, 2022 as follows:
(i) an Order that title to the property located in Schedule “A” to the Motion and supporting affidavit, is vested in the names of Jacob Poirier and Jennifer Poirier, in fee simple;
(ii) an Order that all rights, title and interest in and to the said lands held by the respondents, their successors and assigns is hereby extinguished;
(iii) an Order directing the Land Registry Office, upon registration of the application for vesting Order, to enter the applicants as the owners of the said lands;
(iv) an Order directing A.J. Clarke and Associates to deposit the refence plan at Schedule “A” on the tile to the said lands, and,
(v) a declaration that the Poiriers have fulfilled their obligations under the Settlement Agreement.
[2] The applicants are the owners of 1414 River Road, Cayuga Ontario. The respondents own the adjoining property located at 1370 River Road, Cayuga Ontario. There was a certain track of land between the properties that formed what will be described as the “Disputed Lands”.
[3] This land property dispute resulted in an attendance before Justice Nightingale on August 23, 2022. At that hearing, the respondents undertook not to take any steps to cut, clear or construct upon, the Disputed Lands pending an agreement of the parties or an Order of the Court.
[4] The parties, through their counsel, had numerous settlement discussions and exchanged offers to settle between October 18, 2022 and November 1, 2022.
[5] On November 1, 2022, the respondents made an offer to settle and this offer was accepted by the applicants. The applicant’s acceptance was confirmed in an email of the date. The email read as follows:
For clarity, the parties have agreed:
The respondents will consent to an order which states that the lank may be severed in accordance with the diagram at Schedule “A” to the Applicants’ Offer to Settle dated October 18, 2022 (the Disputed Lands), and transferred to the applicants;
The respondents will provide any consents required to transfer title to the Disputed Lands, but the costs of the transfer will be borne by the applicants;
The Applicants shall retain A.J. Clarke or another third party surveyor (not Rasch & Hyde Ltd) to place iron bars along the new boundary line. In accordance with the markings on the diagram referenced at paragraph 1;
The parties shall bear their own costs of the proceedings.
[6] A further email to clarify the agreement was sent by counsel to the respondents on November 1, 2022. That email reads:
For further clarity, the iron bars must be placed/verified by A.J. Clarke or a third- party surveyor as a precondition to the execution of any consents to transfer the title
Assuming that your client consents to this, I confirm we have an agreement.
[7] The Applicants prepared Minutes of Settlement in accordance with the Settlement Agreement reached on November 1, 2023. In reliance on the agreement, the applicants retained A.J. Clarke and Associates Ltd. This was the respondents’ preferred surveyor. A.J. Clarke carried out the work in accordance with the agreement and placed the iron bars as required by the agreement. This survey work was at a significant cost to the applicants.
[8] On January 24, 2023, the respondents stated that they required additional terms to be added to the Minutes of Settlement that were not included in the confirmed settlement agreement.
[9] The Application of Jacob and Jennifer Hunt was issued on August 8, 2022. The application sought a declaration that they were the legal and beneficial owners of the “Disputed Lands”.
[10] The impetus for commencing the application was that the Hunts had begun installing a fence between 1414 and 1370 River Road, Cayuga. They told Jacob Hunt that they intended to cut down certain trees on the Disputed Lands in order to complete the fence installation.
[11] The appearance before Justice Nightingale on August 23, 2022, was to obtain a timetable Order to move the litigation along. By the time of the hearing, the Poirier’s had brought a motion for an interim injunction to restrain the Hunts from cutting down any trees on the Disputed Lands. In lieu of the restraining Order, the Hunts gave their undertaking to cease any work until agreement of the parties or further order of the court.
[12] After the parties had exchanged multiple affidavits and scheduled cross examinations on the affidavits for November 2, 2022, counsel for the applicants, Jennifer Hunt, sent an email to counsel for the respondent, Ms. Roberts, that included serving of an Offer to Settle the case, which would require the transfer of the Disputed Lands, payment of costs and the dismissal of the application.
[13] By email dated November 1, 2022, Ms. Roberts served an Offer to Settle whereby the Hunts would consent to the transfer of part of the Disputed Lands as described in that offer.
[14] Those two offers became the catalyst for numerous discussions relating to the settlement of the issues between the parties. Those discussions culminated in the November 1, 2022 emails that clarified the settlement agreement.
[15] A draft of “Minutes of Settlement” was sent by Vrancic to Roberts on November 24, 2022. The draft included that the parties were seeking an order in accordance with the settlement of the parties.
[16] From the confirmation of the agreement of the parties on November 1 and 2 of 2022 until January 24, 2023, there was no indication from Roberts that the Minutes of Settlement were not reflective of the agreement of the parties. Roberts communicated that she had other cases that she was dealing with and did not have the opportunity to review the Minutes of Settlement. She also indicated that she had personal issues that she was dealing with and could not review the file until they were dealt with.
[17] During the lapse in time, the Surveyors proceeded to work on the property in accordance with the confirming emails. Vrancic stated that she trusted that Roberts would complete the matter when she had dealt with her personal issues.
[18] It was on January 24, 2023, that for the first time, Roberts indicated that her clients wanted the fence to be completed prior to transferring title and that would be a necessary addition to the Minutes of Settlement. The parties could not agree to this. The result would be an encroachment of approximately 6 inches of the fence on the new boundaries.
The Law and Analysis
[19] The Rules of Civil Procedure and multiple court decisions encourage the settlement of disputed issues that are before the courts. I accept the review of Peterson J. in this regard as set out in Thompson v. Broeze, 2018 ONSC 4268, commencing at para. 30:
[30 ] Although the interests of justice at times require the Court to decline enforcement of a settlement concluded by a lawyer based on a misapprehension of their client’s instructions, the jurisprudence is clear that a lawyer ’s misapprehension of facts relating to the consequences of a settlement does not justify the Court setting aside or refusing to enforce a settlement : Cambrian Ford Sales (1975) Ltd. v. Horner (1989), 69 O.R. (2d) 431 (Div. Ct.) , at paras. 12 , 13, 16; Milios v. Zagas (1998), 38 O.R. (3d) 218 (C.A.) , at para. 17 ; and Vanderkop v. Manufacturers Life Insurance Company (2005), 78 O.R. (3d) 276 (S.C.) , at paras. 27-29 , aff’d , 40 C.C.L.I. (4th) 180 (Ont. C.A.) .
[31] The policy considerations underlying this jurisprudence are obvious. Settlements are an essential feature of our justice system, necessary to the effective functioning of the courts. They are encouraged and incentivized by the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (such as Rule 49) and by pre-trial court proceedings. The principle of finality in settlements is fundamental because, without the expectation of irrevocable closure, parties would have little reason to invest time and resources in efforts to settle their own disputes.
[32] Parties must be encouraged to approach settlement discussions carefully and to take settlement agreements seriously, knowing that enforcement of such agreements cannot easily be defeated. The motivation for parties to settle would be eroded if litigants could avoid enforcement of a settlement because they failed to exercise due diligence in protecting their own interests, were influenced by incorrect and unverified assumptions, or simply had second thoughts about the desirability of the resolution reached. The principle of finality in settlements is even more important where the terms of settlement are negotiated with the assistance of counsel, since the opposing party may reasonably assume that the compromise was reached with the benefit of appropriate and independent legal advice.
[20] The respondents submit that since this matter deals with the title to land, it is essential that any agreement must be in writing and signed be the parties in order to comply with the Statute of Frauds.
[21] I accept and adopt the outline of the legal requirements of enforcement of a settlement agreed as stated by Perrel J. in Zaidi v. Syed, Estate of, et al, 2023 ONSC 1244, commencing at Para 11:
C. Legal Background
[11] The legal background to resolving the issues in the immediate case is an aspect of the law of contract.
[12] The law associated with the enforcement of settlement agreements, which is an aspect of the well-settled law of contract, is also well settled, and the parties in the immediate case did not dispute the applicable law. The dispute was about how that law applied to the facts of the immediate case .
[13] A settlement agreement is a contract, [5] and the court has jurisdiction at common law and under rule 49.09 to enforce settlements . [6] A motion to enforce a settlement involves two elements. The first element is whether or not there is any genuine issue about the existence of an agreement to settle, and the second is to determine whether there is any reason not to enforce the settlement .
[14] For there to be a binding settlement agreement, there must be a mutual intention to create a legally binding agreement and the essential terms of the agreement must have been agreed upon. [8] However, it is not necessary to have reached agreement on incidental matters, such as the method of payment or the exchange of releases.
[15] There is a strong presumption in favour of the finality of settlements ; [10] however, a settlement agreement is a contract and is subject to the law of contract formation, and a settlement agreement can be set aside in the same way that a contract may be rescinded for mistake, fraud , innocent misrepresentation, duress, undue influence, or unconscionability. [11] Below , I shall discuss the law associated with innocent misrepresentation, unconscionability, and undue influence.
[16] As a matter of contract formation, contracts may be oral or in writing. However, although a valid contract, to be enforceable a contract for the conveyance of real property ( land ) must be in writing. Subject to the doctrine of part performance agreements, for the sale of land , must be in writing. The purpose of s. 4 of the Statute of Frauds. [12] is to prevent fraudulent dealings in land based on perjured evidence, [13] and thus the Statute makes oral contracts for the sale of land unenforceable .
Application of the legal principles to this case
[22] I find that the parties did arrive at a settlement agreement in this matter. The issue that was set out in the application were the boundaries to the lands that were owned by neighbours. I find that the claryfing emails of November 1, 2022 and November 2, 2022, settled the land boundary issue and the process to be engaged in order to affect the new and agreed upon boundaries.
[23] There was no communication between the confirming emails and January 24 to suggest the parties had not settled their land dispute. The email sent by the respondents’ counsel of January 24, 2023, contained a new provision that dealt with the construction of the fence that was never part of the exchanged offers to that point, nor was it even referred to in the emails confirming the settlement.
[24] Most importantly, there was part performance with respect to the settlement agreement. The surveyors that were agreed upon set out to prepare the reference plan to be deposited on title. In addition, there were the iron bars placed on the new boundary outlines. I find that if the Statute of Frauds provision that requires that there be an agreement in writing applies, there has been sufficient performance in reliance on the agreement that takes it out of the Statute of Frauds requirement.
[25] As a result of my above analysis, there shall be an Order as set out in para. 2 herein, that sets out the Order requested by the Applicants.
[26] If there is no agreement as to costs, the parties shall each provide a copy of their summary of costs to each other within 10 days and file their costs. Any offers to settle shall be filed in a sealed envelope at the same time. The successful party shall have their costs, the quantum of which shall be ordered upon the review of the summary of costs.
Justice R.J. Harper Released: May 11, 2023