Court File and Parties

COURT FILE NO.: CV-20-84403 DATE: 2023/01/17

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Julie Caron Plaintiff/Responding Party – and – Andre Bluteau Defendant/Moving Party

Counsel: Any Mayer, for the Plaintiff Mathieu Belanger and Amani Rauff, for the Defendant

HEARD: December 13, 2022 via Zoom in Ottawa

BEFORE: R. Smith J.

REASONS FOR DECISION

[1] The Defendant Andre Bluteau (“Bluteau”) has brought a motion for summary judgment seeking a dismissal of Julie Caron’s action on the basis that she signed a Full and Final Release of all claims that she may have had against Mr. Bluteau on May 26, 2020.

[2] Mr. Blureau is a lawyer who was retained by the Plaintiff in September of 2016 to represent her in respect to a family law dispute with her former partner, Benoit Perrier.

[3] Mr. Buteau commenced Application #17-73831 on behalf of Ms. Caron, alleging contempt of court by the opposing counsel and Ms. Caron’s former partner. Ms. Caron ultimately discontinued this Application but brought a motion seeking an order that her lawyer, Mr. Buteau, be ordered to pay costs on a personal basis.

[4] The Plaintiff alleged that Mr. Bluteau was negligent in giving her erroneous legal advice including advising her to move to Sudbury with her 4 month old child without getting the court’s permission, to ignore any orders from the Ottawa Family Court that she return with the child to Ottawa, and that she sue Mr. Perrier and opposing counsel for contempt of court.

[5] The Plaintiff submits that when she signed the Full and Final Release, she only intended to release Mr. Buteau from her claim for costs against him personally made in action #17-73831. She relies on the doctrines of non est factum and duress.

[6] The Defendant argues that the terms of the wording in the Release signed by Ms. Caron is clear that it released him from all claims that Ms. Caron had against him to that date, including but not limited to those alleged in Application #17-73831. The Plaintiff signed the Release with the benefit of legal advice and as such, the doctrines of non est factum and duress are not applicable.

[7] The Defendant submits that there is no genuine issue requiring a trial and the Plaintiff’s claim for damages for negligent legal advice should be dismissed because it was commenced after the date the Release was signed.

Analysis

[8] Rule 20 of the Rules of Civil Procedures, R.R.O. 1990, O. Reg. 194 provides that:

20.04 (2) The Court shall grant summary judgment if,

a) The court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence.

(2.1) In determining under clause 2(a) whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and, if the determination is being made by a judge, the judge may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercises only at a trial:

1. Weighing the evidence;
2. Evaluating the credibility of a deponent;
3. Drawing any reasonable inference from the evidence.

(2.2) A judge may, for the purposes of exercising any of the powers set out in sub rule (2.1), order that oral evidence be presented by one or more parties, with or without time limits on its presentation.

[9] In Hryniak v. Mauldin, 2014 SCC 7 at para. 49, the Supreme Court of Canada held that the test for whether there is a genuine issue requiring a trial and thus whether summary judgement should be granted under rule 20.04(2)(a) is whether the court is able to achieve a fair and just determination on the merits on a summary motion. This will be the case where the summary judgment motion: 1) allows the court to make the necessary findings of fact; 2) allows the court to apply the law to the facts; and 3) is a proportionate, more expeditious and less expensive means to achieve a just result. Only if the court is satisfied that these three elements have been met will summary judgement be appropriate.

[10] The onus is on the moving party to show that there is no genuine issue for trial. However, each party must “put their best foot forward with respect to the existence or non-existence of material issues to be tried”. The responding party may not solely rest on allegations or denials in the party’s pleadings but must set out an affidavit material or other evidence specific facts showing that there is a genuine issue requiring a trial. The Responding party is, however, entitled to rely on the evidence filed by the moving party to show why the test for summary judgement has not been met.

[11] Summary judgement motions are appropriate in cases where the factual background and damages claimed in a proceeding are identical and the subject of a previous Full and Final Release signed between parties.

Interpretation of the Release

[12] In Corner Brook (City) v. Bailey, 2021 SCC 29, the Supreme Court of Canada held that the general principles of contractual interpretation apply to a Release, which is a contract.

[13] In Corner Brook (City) and in Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53 at paras 57 and 58, contractual interpretation requires courts to give the words of a contact their ordinary and grammatical meaning in a manner that is consistent with the surrounding circumstances of which the parties were aware at the time they formed the contract. Where the ordinary meaning of the words and the surrounding circumstances come into tension, a court must decide whether to rely on the surrounding circumstances to refine the meaning of the words. It is impermissible to rely on the surrounding circumstances where they would overwhelm the words of the agreement, in which case the ordinary meaning of the words must prevail.

[14] On June 13, 2019, the Plaintiff offered to settle her motion that Mr. Bluteau pay the costs ordered personally in exchange for payment of the amount that she had been ordered to pay in legal proceedings commenced by Mr. Bluteau, as well as a further $8,541.40 in costs. Ms. Mayer wrote to counsel for Mr. Bluteau as follows:

Furthermore, [the plaintiff] will not be proceeding with any settlement if your client requires her to sign a full and final release with confidentiality clauses. [The plaintiff] intends to continue to refer to this civil application as evidence of [the defendant’s] poor legal advice and services in the ongoing family law matter. She also wishes to reserve her right to commence a civil action against [the defendant] in negligence.

[15] By letter dated August 19, 2019, Ms. Jarda, counsel for Mr. Bluteau, advised Ms. Mayer that her offer to settle was problematic in part because of her client’s refusal to execute a Full and Final Release. Ms. Jarda set out the terms of a counteroffer to settle on the terms that the Defendant would pay the Plaintiff $28,882.00 in full and final settlement of the Plaintiff’s motion, the motion would be dismissed without costs, and the Plaintiff would execute a Full and Final Release. She enclosed a copy of a draft Full and Final Release.

[16] Ms. Jarda did not receive a response from Ms. Mayer to her offer to settle between August 2019 and February 2020 despite following up with her on several occasions.

[17] On February 4, 2020, Ms. Jarda served a Rule 49 Offer to Settle on Ms. Mayer on terms similar to those set out in her August 19, 2019 letter, and withdrew any outstanding offer to settle. On February 21, 2020, Ms. Jarda and Ms. Mayer spoke by telephone. Ms. Mayer advised Ms. Jarda that her client was agreeable to accepting the Defendant’s offer to settle but preferred the wording and terms of the Defendant’s August 19, 2019 offer, which had been revoked when the Defendant delivered his Rule 49 offer. Ms. Mayer advised that the Plaintiff was prepared to execute the version of the Full and Final Release the Defendant had provided.

[18] Ms. Mayer did not ask for any change to the language of the Release or for any carve-out that would allow the Plaintiff to commence this action against the Defendant.

[19] On May 26, 2020, the Plaintiff executed a Full and Final Release in the Defendant’s favour, the language of which includes the following:

IN CONSIDERATION of the payment, or the promise of payment, to or on behalf of the Releasors […] of the sum of […] $28,882.00 […], the receipt and sufficiency of which is hereby acknowledged, the undersigned,

JULIE CARON […] (hereinafter referred to as the “Releasors”)

HEREBY FULLY RELEASE, ACQUIT, AND FOREVER DISCHARGE, WITHOUT QUALIFICATION OR LIMITATION:

ANDRÉ BLUTEAU […] (hereinafter collectively referred to as the “Releasees”)

from all manner of actions, causes of action, suits, debts, dues, accounts, bonds, covenants, contract, complaints, claims and demands for damages, monies, losses, indemnity, costs, interest in loss, or injuries however arising which hereto may have been or may hereafter be sustained by the Releasors, with respect to any matter that may have occurred up to and including the date of the signing of this Full and Final Release, and without limiting the generality of the foregoing with respect to all facts, matters, transactions or things set forth in the Superior Court of Justice Application bearing court file No. 17-73831 […]

[20] LawPRO paid $28,882.00 to the Plaintiff by cheque dated June 2, 2020. The court dismissed the Plaintiff’s motion for costs on consent of the parties by order issued May 10, 2021.

[21] In her affidavit, Ms. Caron alleged that in a phone call between Ms. Jarda and Ms. Mayer, Ms. Jarda reassured Ms. Mayer, verbally and in writing that signing the Full and Final Release would not preclude the Plaintiff from commencing an action in negligence at a later date. She stated that she signed the Full and Final Release with that understanding.

Analysis

[22] The Full and Final Release states that Ms. Caron “hereby fully release, acquit, and forever discharge, without clarification or limitation…Andre Bluteau…from all manner of actions, causes of actions, suits,…claims, and demands of damages… with respect to any matter that may have occurred up to and including the date of the signing of this Full and Final Release, and without limiting the generality of the foregoing with respect to all facts, matters, transactions or things set forth in the Superior Court of Justice Application bearing Court File No. 17-73831…”

[23] The Defendant was advised by Ms. Mayer in her letter dated June 13, 2019, that the Plaintiff wished to reserve her right to commence an action against Mr. Buteau in negligence. In response, Ms. Jarda advised Ms. Mayer on August 19, 2019 that her offer to settle was problematic because her client refused to sign a Full and Final Release. The Defendant made a counteroffer for $28,887 that included a Full and Final Release.

[24] Ms. Jarda states in her affidavit that Ms. Mayer did not ask for any change to the language of the Release that would allow Ms. Caron to commence a future action in negligence against Mr. Bluteau. Ms. Mayer did not provide any affidavit evidence to support the allegation made by the Plaintiff that “Ms. Jarda has confirmed that her signing the Release would not prevent me from suing Mr. Bluteau for his negligence later on.”

[25] The allegation by Ms. Caron contradicts the plain meaning of the words of the Full and Final Release. In addition, Ms. Caron’s evidence is hearsay because it is presumably based on what she was told by Ms. Mayer and Ms. Mayer has not filed an affidavit to provide direct evidence.

[26] On a motion for summary judgment a court relies on the record as it is presented and assumes that no further or better evidence would be available at trial. If a respondent to a summary judgment motion seeks the court to defer the determination of facts relevant to an issue to a trial, it must give the court tangible evidence sufficient to infer that it will require a trial to make that determination in the interest of justice.

[27] In Sharif v. Shaikh et al., 2021 ONSC 6834 at paras. 19-20 and in Rebel v. Stone Mills (Township), 2015 ONSC 5703 at para. 6, the court held that the issue of whether a party is barred from pursuing a claim on the basis of a Release is appropriate for summary judgment. I agree with this conclusion.

[28] In a motion for summary judgment, the parties must put their best foot forward as if the case was proceeding to trial. Rule 20.02 of the Rules of Civil Procedure allows for affidavit evidence to be filed based on information and belief, but also indicated that the court may draw an adverse inference from the failure of a party to provide the evidence of any person having personal knowledge of contested facts.

[29] In Kawartha-Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316 at para. 80, the Court of Appeal for Ontario stated that on a summary judgment motion, the court must conduct a careful screening to eliminate inadmissible evidence. They stated that the court should not give weight to evidence on a summary judgment that would not be admissible at trial.

[30] In Drummond v. Cadillac Fairview Corporation Limited, 2019 ONCA 447, Brown JJA stated as follows at para. 24:

[24] If the evidence on information and belief in an affidavit goes to a fundamental contested aspect of the summary judgment motion, the motion judge should first determine whether the evidence would be admissible under the rules governing admissibility at trial. If the evidence meets those criteria, it is admissible on the motion. If the evidence does not meet the criteria for admissibility at trial, the onus should fall on the party proffering the evidence to justify some expansion of the rules governing admissibility in the context of the motion.

[31] Ms. Caron’s evidence about what Ms. Jarda allegedly told her counsel in a telephone call is hearsay evidence and would not be admissible at trial for the truth of its contents. Ms. Mayer is available as she is still acting as counsel for Ms. Caron and she has not given any affidavit evidence of the representations allegedly made by Ms. Jarda. Ms. Jarda did provide affidavit evidence and was cross examined on her affidavit.

[32] The Plaintiff was aware that she had to file affidavit evidence from her counsel because she sought and obtained an adjournment of the return of this motion on April 5, 2022, to file an affidavit from her lawyer and indicated that she needed to retain another lawyer. The Plaintiff has chosen not to file affidavit evidence from her lawyer about the alleged representation from Ms. Jarda. In the circumstance, I draw on adverse inference and give little weight to the Plaintiff’s allegation that Ms. Jarda represented that she could still sue Mr. Bluteau for negligence after signing the Full and Final Release.

[33] The Release is a contract and is subject to the general principles of contract interpretation as held in Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, [2014] 2 SCR 633, at paras. 21, 33, and 34.

[34] The meaning of the words used in the Release must be given their ordinary and grammatical meaning. The Plaintiff’s hearsay evidence of surrounding circumstances that she was assured that she could sue the Defendant for negligence after signing the Release is not sufficient to overwhelm the plain meaning of the words used and for which consideration was given.

[35] There is no evidence to support either a defence of non est factum or of duress because the Plaintiff was represented by counsel throughout, had the benefit of independent legal advice and also had a period of nine months, from August 19, 2019 to May 26, 2020 to consider the terms of the proposed settlement and the wording of the Full and Final Release.

Disposition

[36] For the above reasons, I find that the Plaintiff has not raised a genuine issue requiring a trial and the words of the Full and Final Release are clear, specific, and unequivocal. The Defendant’s motion for summary judgment dismissing the Plaintiff’s claim is granted.

Costs

[37] The Defendant shall have 10 days to make submission on costs, the Plaintiff shall have 10 days to respond and the Defendant shall have 7 days to reply.

Mr. Justice Robert Smith Date: January 17, 2023