COURT FILE NO.: CV-19-672 (London) DATE: 20230608

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Stephan Wiener Plaintiff

– and –

Paul Strickland and Siskinds LLP Defendants

Counsel: Joel Vale and David Fogel, Counsel for the Plaintiff David Williams and Mana Khami, Counsel for the Defendants

HEARD: Trial May 25, 26, 27, 30, August 4, and October 6, 2022

REASONS FOR JUDGMENT

HEBNER J.

[1] The plaintiff’s claim against the defendants is one involving allegations of solicitor’s negligence. The defendant, Paul Strickland, was acting for the plaintiff at the time of the events giving rise to the claim. Mr. Strickland was, and is, a partner at Siskinds LLP in London, Ontario.

[2] Given the constellation of the family, I will, at times, refer to the parties and other family members by their first names.

Background Facts

[3] The plaintiff, Stephan Wiener is the son of Frank and Jean Wiener. Frank died on October 17, 2011. Jean died on April 28, 2012. They had three surviving children: the plaintiff, Joseph Wiener and Susan Langley.

[4] Frank and Jean had mirror wills leaving their respective estates to each other and, on the death of the survivor, after the payment of certain bequests, the residue was to be divided equally among their surviving children.

[5] The three executors of Jean’s estate were the plaintiff, Joseph Wiener and Susan’s son, Stephen Langley. The solicitor for the estate was Douglas Gunn.

[6] Before the estate was disbursed, Susan passed away leaving three sons surviving, two of whom, Stephen Langley and Curtis Langley, became the executors of her estate.

[7] Prior to their deaths, Frank and Jean appointed Joseph Wiener as their attorney for property and personal care. Joseph began using the power of attorney to help his parents while they were both still alive. After Frank’s death, he continued to manage Jean’s affairs.

[8] Frank and Jean’s primary asset was their farm located at 7400 Sunset Drive, St. Thomas, Ontario. After Frank’s death, there was disagreement among the siblings over the plans for the family farm. Joseph told Stephan that he wanted to sell the farm as Jean was residing in long-term care. Stephan disagreed. In January of 2012, Stephan retained the defendant, Mr. Strickland, to advise him on the issues he had with his brother.

[9] On March 31, 2012, Joseph, acting as power of attorney for Jean, entered into an agreement of purchase and sale to sell the family farm to the Hepburns, neighbours who wished to purchase the farm. The purchase price was $1.62 million. Stephan objected to the sale, but the sale closed anyway. Following Jean’s death, litigation ensued, with Joseph and Stephen Langley seeking to have the plaintiff removed as trustee of the estate and Stephan seeking to have Joseph removed.

[10] The parties eventually agreed to a mediation with retired Justice John McGarry. The defendant, Mr. Strickland, acted for the plaintiff. Joseph Wiener was represented by Lou-Anne Farrell. The mediation took place August 26, 2014. At the mediation a hand-written document was prepared that is alleged to set out terms of a settlement of the dispute. The plaintiff asserts that he did not give instructions to Mr Strickland to resolve the dispute on those terms and he started this action against Mr. Strickland seeking damages.

The Issue

[11] On September 27, 2021, Justice Desotti ordered that the trial be bifurcated into two separate trials, liability and then damages. Justice Desotti ordered that the sole issue to be tried at the liability trial is:

Did the defendants bind the plaintiff to anything in the one-page document (hand-written by Lou-Anne Farrell) without the plaintiff’s instructions?

[12] I heard the liability trial on the dates identified above. These are my reasons for judgment.

[13] At the trial, the court heard from the following witnesses:

• The plaintiff, Stephan Wiener;
• Mr. Sean Graham, a lawyer retained by the plaintiff to oppose the motion to enforce the settlement;
• The defendant, Paul Strickland;
• The mediator, John McGarry;
• Lou-Anne Farrell, a lawyer retained by Joseph at the time of the mediation;
• Stephen Langley; and
• Joseph Wiener.

Additional Facts

[14] According to the plaintiff, Mr. Douglas Gunn had been the Wiener’s family lawyer for 35-40 years. He was the lawyer for Jean’s estate.

[15] The family farm consisted of 140 acres and had been in the Wiener family for 130 years. Stephan did not want the farm sold. He asserts that Joseph sold the farm while Jean was still alive because he, as power of attorney, could make that decision on his own. He asserts that Joseph did not want to wait until after Jean’s death because then he would be one of three estate trustees and they would all have to agree.

[16] The plaintiff asserts that when Joseph sold the farm to the Hepburns, Mr. Gunn acted as both the estate lawyer and the lawyer for the purchaser. The plaintiff asserts that Mr. Gunn was in a conflict of interest on the sale of the farm. The plaintiff asserts that the farm was not sold for a fair price and that it was sold in haste.

Events Leading up to the Mediation

[17] The plaintiff engaged Mr. Strickland in January of 2012, prior to the sale of the farm. At that point, the plaintiff was one of the estate trustees for Frank’s estate, Jean was residing in a long-term care home, and Joseph was acting as Jean’s Power of Attorney. The letter of engagement dated January 10, 2012, identifies three issues for which Mr. Strickland was retained: what the plaintiff needed to do to satisfy his obligations as estate trustee for Frank’s estate; what issues flow from Joseph’s dealings with Frank’s financial affairs before Frank died; and what potential issues might arise with Joseph as Jean’s power of attorney.

[18] The focus of the letter and subsequent communications was the family farm. The plaintiff’s evidence was that he wanted to keep the farm himself. He wanted to carry on the legacy of the farm. It is unclear as to whether he intended to purchase the farm himself or whether he wanted the property to simply be transferred to him.

[19] Mr. Strickland suggested that if the plaintiff wished to assume ownership of the farm, he ought to make an offer to purchase, but the plaintiff never made an offer in writing. He said he “didn't make an offer as he didn't think it was pertinent at the time”.

[20] Joseph’s evidence of the events leading up to the signing of the agreement of purchase and sale, March 31, 2012, was that he received an offer to purchase from the Hepburns on March 30 at 5:00 p.m. He called Mr. Eitel, who was acting for Jean (through the Power of Attorney) on the sale of the property. Mr. Eitel told him to see him in the morning. Joseph contacted his sister, Susan, who said that the offer was fine. The next morning Joseph asked Mr. Eitel to call Stephan. Mr. Eitel called Stephan between 10:00 and 11:00 a.m. on March 31 and spoke to his wife. Mr. Eitel told Stephan’s wife to have Stephan call him back. There was no return call by 5:00 p.m. Joseph sent a counter-offer to the purchaser’s realtor, the counter-offer was accepted and the deal was made.

The Mediation – August 26, 2014

[21] Mr. McGarry conducted the mediation by way of shuttle mediation. Stephan and Mr. Strickland were in one room while Joseph and Ms. Farrell were in another room. Stephen Langley attended without counsel and was in a third room alone. Mr. McGarry shuttled back and forth between the rooms with his notes.

[22] According to the plaintiff, the real estate commission paid on the sale of the farm was $70,000. He asserts that his one-third share was approximately $23,000. The plaintiff brought the issue up at the mediation, seeking to be reimbursed for his share of the real estate commission. The issue was not well received and, according to the plaintiff, was “closed down by the mediator” and Joseph refused to talk about it.

[23] At one point during the mediation, Mr. Strickland and the plaintiff went to Stephen Langley’s room to see if he would support the plaintiff on the issue of the real estate commission. Mr. Langley was not supportive of the plaintiff’s position on any of the issues, including the commission.

[24] At the end of the day, Mr. McGarry came to the plaintiff’s room with a final proposition. The plaintiff said that he did not want to sue his brother anymore and that he would accept the proposal. The plaintiff gave those instructions to Mr. Strickland in the presence of the mediator. The plaintiff asked Mr. Strickland to speak to Ms. Farrell and then he drove home. He said it had been a “day of poisonous atmosphere”.

[25] Mr. McGarry said the case was settled between Ms. Farrell and Mr. Strickland. He left Ms. Farrell and Mr. Strickland to complete the paperwork. He said that Ms. Farrell and Mr. Strickland are very experienced lawyers, and he was confident they would “clean it up”.

[26] After the mediator left, Mr. Strickland and Ms. Farrell prepared notes in Ms. Farrell’s hand-writing setting out the terms of the settlement (the settlement document).

[27] Mr. McGarry said that settlements at mediation without a signed agreement happen all the time. He said there was “a done deal”.

The Settlement Document

[28] The settlement document provides as follows:

1. Joseph Wiener was to receive compensation of $55,000;
2. Jewelry was to be provided to Stephen Langley for him to distribute as set out in the settlement document;
3. $50,000 was to be paid to Susan Langley's estate for Richard's bequest as if he had survived Jean;
4. Legal fees to be paid as follows: $30,000 to Ms. Farrell; and $40,000 to Mr. Strickland;
5. The monies were to be paid to Mr. Gunn from the estate, with Mr. Gunn then preparing cheques;
6. Enquiries were to be made as to whether further T-forms were required for tax purposes or whether the income could flow to the beneficiaries;
7. All applications were to be abandoned without costs;
8. All beneficiaries were to sign standard releases releasing the estate and estate trustees; and
9. Minutes of settlement were to be signed in counterpart.

[29] The Minutes of Settlement were to be prepared by Ms. Farrell and Mr. Strickland was to prepare the releases.

[30] The plaintiff, in his evidence in chief, reviewed the settlement document in detail and said that he agreed with each and every point in the document, so long as he could sue Mr. Gunn. The plaintiff said that he thought he had lost money but if he sued Mr. Gunn then he would “get it back from a different tree”.

[31] The basis of the planned lawsuit against Mr. Gunn is unclear but appears to be allegations of a conflict of interest. Mr. McGarry could not recall any comments made at the mediation by anyone about Mr. Gunn.

[32] In cross-examination, the plaintiff said that he did not provide instructions to Mr. Strickland to enter into the settlement set out in the document and was waiting to hear when the mediation would continue.

[33] Mr. Strickland said that the plaintiff talked about a Law Society complaint against Mr. Gunn but decided against it for strategic reasons. The plaintiff talked about suing Mr. Gunn and Mr. Strickland said he would not act against Law Pro but would refer the plaintiff to another lawyer for an opinion as to whether the plaintiff had a cause of action. The plaintiff never asked for the referral. There was no discussion between the plaintiff and Mr. Strickland about a possible limitation period.

Events Following the Mediation

[34] According to Mr. Strickland, after the mediation, the plaintiff phoned him wanting out of the settlement. Mr. Strickland told the plaintiff that there was a settlement and that he would write to him the next day with the particulars.

[35] On August 27, 2014, Mr. Strickland wrote to the plaintiff confirming the terms of the settlement. He finished the letter with:

The goal is to have all of this completed very shortly. We will share with you the draft minutes of settlement as soon as they have arrived. We will also share with you a draft of the release documents to be executed by all parties. We will keep you advised as to the progress of the implementation of this settlement.

[36] On August 28, 2014, the following email exchange took place between the plaintiff and Mr. Strickland (PS):

PS: Here are the draft settlement agreements We did enter into a settlement on Tuesday As pointed out to you by the mediator, and as I have pointed out to you before you have a number of issues but the question is what can you prove by evidence that is admissible and satisfies the requirements under the evidence act

Plaintiff: We did put forth evidence in this matter. You personally advised that Joe would not answer to Sections 32 and 38. Joe has in two affidavits stated that he did not consult with his mother. W Eidel has given evidence he did not consult with his mother. I have told you that he did not consult with me THE close family member. The reasons of her selling the farm were personal reasons by Joe and Susan which are not in line with the POA act. He cannot do anything but that for Jean and he did not consult her. They have to give evidence as well as I have to and there is no evidence on their part even if there are two of them that satisfies evidence that there needed to be a sale and they followed correct procedure. You are telling me I need evidence under the evidence act but they do not have to due to a mutual agreement between themselves that provides for the act of selling against Jean’s wishes and or her consulting. Guess you had better tell me what evidence was required to be provided and what they had as evidence to the act.

PS: When we concluded the matter on Tuesday we discussed the issues and your concerns. We discussed that you had done everything you could to make Joe accountable. You got no support from anyone else even though Stephen Langley was provided with information that suggested Joe had improperly removed assets that his family would have had a one third interest in.

Plaintiff: Yes we did have that discussion

PS: in all the circumstances I recommended that you end this matter. You had told the mediator you did not want to go to court and I am not of the opinion that a court proceeding would get you what you want.

Plaintiff: You are correct I really do not and that is why I was so cooperative

PS: As I have advised the mediator that there was a settlement this firm could not continue to act if you decide that you do not want to proceed with the settlement

Plaintiff: You are correct, there was a settlement and I am not asking for anything that was settled to be changed. My concern is that the mediator would not allow us to table the fees incurred against Jean Wiener (not me) that did not have to be incurred and it is my responsibility to gather in all assets and have losses recovered. To sign the agreement settlement when the unrequired fee are not captured is failure to my duties as an executor. I am shocked at you next statement about not acting for me.

[37] On September 8, 2014, the plaintiff wrote to Mr. Strickland. In his letter, the plaintiff said that: “All items were mediated except one”; “The item that was not mediated was $70,000 for fee incurred on the sale of the properties for real estate and legal obligations”; “I believe that the mediation was a success on the issues that were mediated. Therefore, the day of mediation was successful. However, I do not find the mediation reached the level that closure to the estate can be made due to the refusal to mediate all issues”; “There is one remaining issue, that of the $70,000 of real estate fees and legal fees that were incurred by the POA Joe Wiener against Jean Wiener and her estate. This was presented and not mediated.”

[38] Minutes of settlement were drafted but the plaintiff refused to sign. He said he would not sign the minutes of settlement as the minutes of settlement did not expressly provide that he could sue Mr. Gunn.

The Subsequent Litigation

[39] Joseph Wiener brought a motion to enforce the settlement, with Stephan Wiener, Susan Langley and Stephen Langley as the respondents.

[40] Mr. Graham was retained by the plaintiff to oppose the motion to enforce the settlement. He met with Mr. Strickland on November 28, 2014, to discuss Mr. Strickland’s recollections of the mediation. After the meeting on December 2, 2014, Mr. Graham sent Mr. Strickland a draft letter to Ms. Farrell for his review. The letter reads:

I understand your client takes the position that Paul Strickland is examinable with respect the following statement from paragraph 4 of my client Stephan Wiener’s November 10, 2014 affidavit:

“I never gave instructions to my lawyer Paul Strickland to accept any global offer made by the other side.”

Mr. Strickland has verified that statement. Among other disagreements, the settlement your client is arguing for does not address the scope of the releases. Mr. Strickland told me that after the mediation you and he disagreed on the releases: the releases are and were fundamental to Stephan Wiener. If forced, I understand Mr. Strickland will verify that there was no agreement on at least one fundamental term. So there was never a global settlement.

[41] Mr. Strickland responded to the draft letter on the same day, December 2, 2014, with the following comment: “I believe you have to be specific about the issue of the release covering the lawyers as that was the dispute”.

[42] On the same day, Mr. Graham provided Mr. Strickland with an amended letter to Ms. Farrell, with the amendment being in the third sentence of the third paragraph as follows: “Mr Strickland told me that after the mediation you and he disagreed on whether the releases were to extend to releasing Wayne Eitel and Douglas Gunn”. Mr. Strickland responded with “agreed” And the letter was sent.

[43] Ms. Farrell’s response, dated December 3, 2014, reads:

The information set out in your letter of December 2, 2014 is not correct. Mr. Strickland and I did not disagree about releases. Mr. Strickland was the one who had agreed to prepare the releases and as far as I am aware he did not do so, or at least did not ever present draft releases for my review.

I did not at any point demand that Mr. Eitel and Mr. Gunn be released. What happened is that when I pressed Mr. Strickland about why the minutes of settlement had not been signed (and no draft releases received) approximately 2 weeks after the mediation, he came to see me to advise that his client had raised issues regarding Mr. Gunn which had not been communicated to us at the mediation, and asked whether, on a without prejudice basis, we might be willing to modify the settlement to ensure that any right Stephen Wiener had to pursue Mr. Gunn would not be barred by anything in the minutes or releases.

My client did not object to this, as long as the settlement was final for his own purposes. Mr. Strickland and I agreed that the documents would have to be drafted carefully with an indemnification in favor of my client in the event Mr. Gunn made any counterclaims which affected him. I thought we had an agreement on this basis, but then Steven Wiener again apparently changed his mind and was not prepared to proceed on this basis.”

[44] Ms. Farrell conducted an examination for discovery of Mr. Strickland on March 2, 2015. Mr. Strickland gave the following evidence:

Q. Was it your understanding that the matter was settled? A. Yes.

Q. Do you agree that it took about 20 minutes for us to write this out? A. I'm sorry?

Q. Approximately? A. Yes.

Q. Did you bind Stephan Wiener to those notes? A. Yes. Well, Stephan Wiener had told us beforehand that that, that's consistent with what he had been communicated in the room.

Q. And you bound him to those notes? A. Yes.

Q. Did you bind him to a global agreement at the mediation? A. What do you mean by global?

Q. Was the matter settled? A. I thought it was at the time.

Q. Did you bind him to the settlement reflected by those notes? A. Yes. Well, he had already instructed me to do that, but yes.

Q. Were there any issues not resolved by those notes? A. Well, we still had the, like there was still administration stuff that had to be done to clean up the estate. We had a mechanism as to how things were to be done including the disclosure of these items that were supposedly in this, I think bag, but I not sure it wasn't a briefcase or something that we found out that day existed. Now, it wasn't put to me today, but later, like if somebody had put on the table, was this supposed to be a release of Doug Gunn and Eitel, like I know that I had no instructions to do that because it would've been hotly disputed in our room, like that was not on the table. So...

Q. Would you characterize that as a fundamental term? A. Well the releases that I was expecting were releases, like a regular, like we were doing what you do in a distribution. If anybody was asking for releases that had us release Gunn in particular, I was not getting any instructions to allow that. That's absolutely clear.

Q. So you didn't bind Stephan Wiener to release Doug Gunn, and if I can be, if I can add another name, you can tell me if I'm wrong, or Mr. Eitel. A. Correct.

Q. You did not bind... A. No.

Q. ...him to release that A. No. Like that type of thing isn't contemplated in an Estate Trustee, like the standard release of an Estate Trustee, like what you'd get from everybody who gets an inheritance under a Will, two Wills in this case. And it was in that there is a waiving of the passing of accounts, so.

[45] Thereafter the motion to enforce the settlement was resolved by way of the consent order of Morissette J. dated June 30, 2015. The terms of settlement as set out in the order were:

1. Joseph Wiener was to receive $55,000 from the estate as compensation for his work as attorney for property and attorney for personal care for Jean and Frank;
2. The jewellery was to be distributed as specified;
3. $50,000 was to be paid to the estate of Susan Langley in lieu of a bequest to Richard Langley;
4. $55,000 to be paid to Advocates LLP (Joseph’s lawyers) and $45,000 to Stephan Wiener;
5. Full and final releases were to be signed by all the beneficiaries.

[46] The only difference between the Morissette order and the settlement document is the monies to be paid in para. 4 of the order were increased due to the increased legal fees.

The Releases

[47] The releases referred to in para. 5 of the Morissette J. order were prepared by Mr. Gunn as the estate solicitor and signed by Joseph, Stephan and Stephen Langley. The release signed by the plaintiff is a standard estate release that includes the following substantive paragraph:

And therefore I, the said Stephan Charles Wiener, for the consideration aforesaid, do by these presents remise, release, quit claim and forever discharge the said John Joseph Wiener and Stephen Langley, their heirs and estate trustees of and from any and all actions, claims, accounts and demands whatsoever which I now have or ever had in respect of or in connection with the estates of both of Francis Joseph Wiener and Jean Irene Wiener hereinbefore referred to.

[48] It is common ground that nothing in the release prevented Stephan from bringing a claim against Mr. Gunn and/or Mr. Eitel.

[49] The plaintiff acknowledged that he has never been asked to sign a release in favor of Mr. Gunn.

The Issue Restated

[50] The issue before me, as set out in the Desotti J. order, is:

Did the defendants bind the plaintiff to anything in the one-page document (handwritten by Lou-Anne Farrell) without the plaintiff’s instructions?

[51] If the answer is yes, then the plaintiff is successful on the liability issue and a trial on damages would have to be scheduled. If the answer is no, the defendants are successful, and the matter is concluded – there would be no trial on damages.

Position of the Plaintiff

[52] The plaintiff’s assertion is that, if the plaintiff was precluded from bringing a claim against Mr. Gunn, then there were no instructions to settle. The plaintiff asserts that there were two reasons why he could not bring a claim against Mr. Gunn: the settlement document bound him to a standard release; and the limitation period to commence an action against Mr. Gunn had passed. Accordingly, there were no instructions to settle.

Position of the Defendant

[53] The defendant asserts that the plaintiff provided instructions to the defendant to resolve the dispute on the terms set out in the settlement document with one caveat – that the settlement did not prevent him from bringing a claim against Mr. Gunn. The defendant asserts that the caveat was met. There was nothing in the Minutes of Settlement that took away his right to bring a claim against Mr. Gunn.

Analysis

[54] From the commencement of the defendant's retainer, the plaintiff’s focus was the family farm. He did not want the farm sold. He wanted to keep it for himself. The defendant told the plaintiff that if he wanted the farm, then he needed to make an offer to purchase it. The plaintiff declined to do so. Joseph, through Mr. Eitel, reached out to the plaintiff on the day Joseph signed the agreement of purchase and sale with the Hepburns to see if the plaintiff wanted to submit an offer. There was no response.

[55] After the farm was sold, the plaintiff focused on the real estate commission that was paid on the sale. In his view, the real estate commission should not have been payable because the farm should not have been sold.

[56] The plaintiff blamed Mr. Gunn for the sale of the farm. I gather from the evidence that the plaintiff believed that Mr. Gunn was in a conflict-of-interest position as he had been the family’s lawyer for many years and, at the same time, had been the lawyer for the Hepburns. The plaintiff felt that he had a cause of action against Mr. Gunn, although the basis of a claim for damages is unclear.

[57] When the plaintiff attended the mediation, he intended to recoup what he felt was his one-third share of the real estate commission that had been paid on the sale of the farm. He raised the issue, unsuccessfully, at the mediation. At the end of the day, a settlement was reached, and the terms of settlement were documented on a sheet of paper by Ms. Farrell. The plaintiff agreed to each and every one of the points of settlement, so long as the settlement did not affect a claim he planned to bring against Mr. Gunn. Immediately afterward, the plaintiff regretted the settlement and told Mr. Strickland that he wanted out.

[58] In the exchange between the plaintiff and defendant two days after the settlement, the plaintiff’s focus was the real estate commission. He agreed that there was a settlement but said that the mediator would not allow him to table the real estate commission and so that issue was not mediated, and the estate could not be closed. He made the same comments in an exchange ten days later.

[59] Against that backdrop, I return to the question at hand, namely, whether the defendant bound the plaintiff to anything set out in the settlement document without instructions.

[60] The settlement document provides that all beneficiaries, including the plaintiff, were to sign “standard releases releasing the estate and estate trustees”. The plaintiff relies on the decision of Vella J. in Terranata Winston Churchill Inc. v. Teti Transport Ltd. et al, 2020 ONSC 7577. Terranata dealt with a motion to enforce a settlement. The issue was the scope and form of the release agreed to be signed by the plaintiff and one of the defendants. The accepted offer required that Terranata sign a “full release” but was silent as to the terms of the release and no draft release was attached. The parties looked to the court to resolve the form and content of the release to be signed by the plaintiff. The issue is addressed at para. 52:

[52] In my view, claims over/contribution and indemnity clauses are usual elements of a standard general release. The court will therefore imply these types of provisions as terms of standard general releases, unless expressly carved out or narrowed by the parties prior to reaching a settlement. If there is to be any narrowing in scope of these types of provisions, it must be specifically negotiated, agreed upon and reflected in the settlement agreement. This conclusion is supported by the caselaw and informed by a purposive analysis of general releases.

[61] The plaintiff urges me to conclude that the release referred to in the settlement document must be interpreted to include a claims over clause, which the plaintiff would not accept. If he did, should the plaintiff sue Mr. Gunn, then Mr. Gunn could claim over against Joseph which would be prohibited by the release.

[62] I reject that argument. Here, the settlement document referred to a standard release “of the estate and estate trustees”. The defendant was tasked to prepare the releases. He did not do so because the solicitor client relationship broke down immediately after the mediation concluded. However, the release that the defendant and Ms. Farrell expected was a standard estate release.

[63] I conclude, based on all the evidence, that the plaintiff wanted out of the settlement because he wanted to be reimbursed for one-third of the real estate commission. This was his focus immediately afterward and he thought he could recoup what he perceived to be that loss from Mr. Gunn.

[64] There was nothing in the settlement document that prevented the plaintiff from suing Mr. Gunn. Ms. Farrell did not demand that Mr. Gunn and/or Mr. Eitel be released. The releases did not become an issue until well after the mediation. As Ms. Farrell said in her evidence, the release was a new issue. She did not consider the release to be an issue, until it was an issue months later.

[65] In the course of Ms. Farrell’s examination of the defendant in March of 2015, the defendant said that he expected the releases referred to in the settlement document to be standard estate releases “like…in a distribution”. That type of release does not generally include a claims over clause. As it turns out, at the end of the day, that is the type of release the parties signed following the Morissette order. They signed a standard estate release, without a claims over clause, prepared by Mr. Gunn as the estate solicitor. This was the case even though the Morissette order provided for “full and final” releases. The form of release that was eventually signed supports my conclusion that, at the time of the mediation, counsel and the parties expected standard estate releases without a claims over clause.

[66] The plaintiff, in his evidence, said that he had agreed with each and every point in the settlement document so long as he could sue Mr. Gunn. There was nothing in the settlement document that prevented him from doing so.

[67] I turn then to the second argument put forth by the plaintiff, namely that the limitation period prevented him from taking any action against Mr. Gunn. The plaintiff asserts that at the time of the mediation he could not sue Mr. Gunn as the limitation period had expired. He asserts that the defendant would have known there was a limitation period problem and that he therefor would have known that the plaintiff could not sue Mr. Gunn.

[68] I reject that argument for several reasons. Firstly, the plaintiff did not retain the defendant to sue Mr. Gunn. He did not retain the defendant to provide an opinion as to whether he could sue Mr. Gunn. In fact, the defendant told the plaintiff he could not act against Law Pro and offered to refer the plaintiff to another lawyer to obtain that opinion. Under those circumstances, in my view it cannot be assumed that the defendant turned his mind to any cause of action the plaintiff might have against Mr. Gunn and the applicable limitation period.

[69] Secondly, the issue of a limitation period is a complicated one and is inextricably connected to the cause of action itself. When would the limitation period have started to run? I am unable to determine the answer to that question. Indeed, I am not aware of any cause of action the plaintiff would have had against Mr. Gunn. The defendant offered to refer the plaintiff to another lawyer for a legal opinion on that point, but the plaintiff did not accept that offer. On the evidentiary record before me I cannot determine any of the following: whether the plaintiff had a cause of action against Mr. Gunn; if so, when did the limitation period start to run; by the time of the mediation, had any limitation period expired.

[70] Thirdly, a limitation period is a defence to an action (see Singh v. Trump 2016 ONCA 747). It does not operate to prevent an action from being launched in the first first place. Accordingly, it cannot be said that any limitation period prevented the plaintiff from suing Mr. Gunn.

Conclusion

[71] My conclusion is that the defendant did not bind the plaintiff to any of the points in the settlement document without the plaintiff’s instructions. The answer to the question set out in the Desotti order is “no”. Given that answer, the plaintiff’s claim must be dismissed.

[72] The parties may provide brief written submissions on costs, along with a costs outline and relevant offers to settle, based on the following timeline:

1. The defendants within 20 days;
2. The plaintiff within 20 days thereafter;
3. The defendants may reply within 10 days thereafter.

Original Signed by “Justice P.L. Hebner” Pamela L. Hebner Justice

Released: June 8, 2023