Mountfort v. Vuong, 2025 ONSC 1878

Court File No.: CV-20-00652840-0000
Date: March 26, 2025
Superior Court of Justice – Ontario
Before: Ira Parghi
Plaintiff: Anna-Marie Mountfort
Defendants: Kevin Vuong, Larry Lau, and Agency for Public and Social Innovation Inc.
Plaintiff Counsel: Neil Wilson and Meaghan Coker
Defendant Counsel: Christopher Stanek and Jenna Kara
Heard: February 3, 2025, with further written submissions read March 7, 2025

Endorsement

[1] The parties entered into a settlement agreement in September 2024, pursuant to which the Defendants agreed to pay settlement funds to the Plaintiff.

[2] A case conference was held on December 16, 2024, in response to the Plaintiff’s concerns that the Defendants were not complying with the settlement agreement. The primary issue at the case conference was whether the Defendants were permitted to pay out the settlement funds in monthly installments over a period of 13.5 months, as they insisted on doing to the Plaintiff’s objection. No such “payment plan” was contemplated in the settlement agreement.

[3] I issued an Endorsement on December 18, 2024, in which, among other things, I held that there was no basis in law for the Defendants to insist on paying the settlement funds in monthly installments to which the Plaintiff had not agreed. I held that they were required to pay the funds in one installment within a reasonable time period, which I held to be no later than 45 days after the settlement agreement was entered into. This Endorsement is to be read in conjunction with that Endorsement of December 18, 2024, which is appended as Schedule A.

[4] The parties attended for a further case conference before me on February 3, 2025, for the purpose of settling the order from my Endorsement of December 18, 2024. Three issues were addressed during that case conference:

a. Whether the Order from my Endorsement of December 18, 2024 can specify the settlement amount to be paid by the Defendants to the Plaintiff, given that the Endorsement did not specify the settlement amount. The Defendants state that because the Endorsement was silent as to the settlement amount, the Order must also be silent as to the settlement amount.

b. Whether the Order from the Endorsement of December 18, 2024 can grant the Plaintiff post-judgment interest on the amounts owed to her by the Defendants. The parties agree on the payment of post-judgment interest, but disagree as to when the interest should start running. The Plaintiff says such interest should start to run on October 24, 2024, which is 45 days after the settlement agreement was entered into. The Defendants state that interest should start running when the Order is issued, which has not yet happened.

c. Whether the Plaintiff is entitled to her full indemnity costs in respect of the December 16, 2024 and February 3, 2025 case conferences. The Defendants state that because the Endorsement of December 18, 2024 did not award any costs, the Order from that Endorsement cannot order any such costs.

[5] The Defendants have not complied with the Endorsement of December 18, 2024. They have not remitted any settlement funds to the Plaintiff. They have only remitted monthly payments to their counsel for him to hold in trust. They maintain the view that they are entitled to unilaterally impose a monthly payment plan on the Plaintiff. For the reasons discussed in the Endorsement of December 18, 2024, their position is wrong at law and grossly unfair. They have, in effect, extracted a sizeable interest-free loan from the Plaintiff.

[6] During the February 3, 2025 case conference, the Defendants took great exception to the Plaintiff’s requests for costs and post-judgment interest. They made the same types of arguments they had made in the December 16, 2024 case conference regarding the appropriateness of the Plaintiff seeking, and receiving, relief by way of case conference. They reiterated their views that the Plaintiff was “not following the Rules ” by not bringing a “proper motion”.

[7] I reminded the Defendants, as I had at the December 16, 2024 case conference, and in the Endorsement of December 18, 2024, that the Rules and the jurisprudence allow a judge to grant relief in case conferences where appropriate. I invited the Defendants’ counsel, as I had at the December 16, 2024 case conference, to specify why he felt it was inappropriate for me to consider the Plaintiff’s requests. He cited the lack of evidence before me. I asked him what evidence he meant. He referred to evidence as to the settlement amount. He appeared to take issue with the fact that the settlement agreement was before me as part of the Plaintiff’s case conference materials, but not as an exhibit to a sworn affidavit.

[8] I am, respectfully, unable to accept this claim. The fact of the settlement is not in dispute. The settlement amount is not in dispute. Counsel does not suggest otherwise. I do not need formal evidence on a factual point that is uncontested and on which I am not being asked to make any factual finding.

[9] When pressed to identify any other evidence that he felt I need to have before me but did not, counsel for the Defendants advised that he had not been able to respond to the Plaintiff’s costs claim because of the timing of the exchange of the case conference materials.

[10] I accordingly provided the parties with the opportunity to provide any additional materials they wished, regarding any of the relief being sought by the Plaintiff. I advised the parties that I would make my decision in respect of all the relief sought after reviewing these additional materials. I accommodated counsel’s schedules in setting the deadlines for the exchange of these additional materials.

[11] Having now reviewed the parties’ additional materials and the materials originally provided before the February 3, 2025 case conference, and having closely considered the submissions made during that case conference, I rule as follows.

The settlement amount

[12] The Defendants state that because the Endorsement of December 18, 2024 was silent as to the settlement amount, the Order from the Endorsement of December 18, 2024 must also be silent as to the settlement amount.

[13] I confess to being surprised by this argument. During the case conference on December 16, 2024, the Defendants expressed that they did not want to have the settlement amount captured in any of the documents. Out of respect for the Defendants’ wish for confidentiality, I did not ask the parties for the settlement amount. I prepared the Endorsement in such a way that it did not refer to the settlement amount. I accommodated the Defendants’ preference. The Defendants now seek to turn that accommodation to their advantage by saying that the absence of the settlement amount from the Endorsement operates to deprive the Plaintiff of an enforceable Order.

[14] When I issued my Endorsement without the settlement amount, I did so on the assumption that the Defendants would comply with the clear terms of the Endorsement even if those terms did not specify the amount. That assumption was evidently mistaken.

[15] The matter is now before me again in a new case conference. I am issuing a new Endorsement. Given the legitimate need of the Plaintiff to be able to enforce the settlement, it would certainly be open to me to include the settlement amount in the Endorsement. Nonetheless, I am not revealing the settlement amount in this Endorsement, in accommodation of the Defendants’ preference. I do, however, disclose the settlement amount in the attached Order, so that the Plaintiff will not be impeded in her ability to seek to enforce the Order if required. While an Order is generally not to contain substantive terms that are not set forth in the underlying Endorsement, for the reasons outlined here, I consider it appropriate to specify the settlement amount in the Order but not in the Endorsement.

Post-judgment interest

[16] The Defendants state that because the Endorsement of December 18, 2024 did not award post-judgment interest, the Order from the Endorsement of December 18, 2024 cannot do so either.

[17] Without deciding that issue, I simply note that this matter came back before me for a new case conference on February 3, 2025. This Endorsement arises from that new case conference.

[18] In my view, it is appropriate to now address the issue of post-judgment interest. The Plaintiff has not received any of the agreed-to settlement funds, more than five months after the settlement agreement was entered into and more than two months after my December 18, 2024 Endorsement instructed the Defendants to pay the Plaintiff promptly, and not in accordance with their own preferred payment plan.

[19] The Plaintiff states that interest should be granted commencing on October 24, 2024, which is 45 days after the settlement agreement was entered into. The Defendants state that interest should start running on the day the Order is issued. Since the Order has not yet been issued, it cannot yet have started running. It bears repeating that the Defendants requested that the Order not include the settlement amount. They then relied on the fact that the Order did not include the settlement amount to thwart the Plaintiff’s efforts to finalize the order. They now say that because the Order was not taken out, post-judgment interest has not started running.

[20] I do not accept these arguments. In my view, it is appropriate to award interest commencing on October 24, 2024. That is the date on which the funds were due, and is therefore the date on which post-judgment interest properly begins accruing. To grant post-judgment interest effective some later date, as the Defendants would have me do, would ignore the meaning of post-judgment interest. It would also unfairly benefit the Defendants and prejudice the Plaintiff. Through their refusal to pay the settlement funds in accordance with the settlement agreement, the Defendants have already effectively forced the Plaintiff to grant them an interest-free loan. Allowing interest to begin running any later than the date on which the funds were due to the Plaintiff would only increase the amount of that loan.

[21] In response to the Defendants’ position that post-judgment interest is not appropriately addressed by way of case conference, I refer to my discussion in the Endorsement of December 18, 2024, together with the discussion above. Respectfully, the Defendants’ position that these issues could only be addressed by way of formal motion is without merit, and reflects the very “motions culture” that rule 50.13(6) of the Rules of Civil Procedure is intended to combat.

Costs

[22] The Defendants state that because the Endorsement of December 18, 2024 did not award costs in respect of the case conference to the Plaintiff, the Order from the Endorsement of December 18, 2024 cannot do so either.

[23] I did not address costs in the Endorsement of December 18, 2024. Nothing precludes a party from seeking costs after a hearing. The Plaintiff is seeking costs now. In the alternative and in any event, this matter came back before me for a new case conference on February 3, 2025, and this Endorsement arises from that new case conference.

[24] In my view, it is appropriate to now consider the issue of costs. The Plaintiff has now had to incur the costs associated with preparing for and attending two case conferences, all as a result of the Defendants’ unfounded view that they are permitted to pay her what they owe her on a timetable of their own choosing.

[25] The Plaintiff seeks $12,538.00 in costs, on a full indemnity scale. This amount reflects the costs incurred preparing for and attending the December 16, 2024 and February 3, 2025 case conferences and providing the subsequent additional written submissions.

[26] In exercising my discretion to fix costs under section 131 of the Courts of Justice Act , R.S.O. 1990, c C.43, I may consider the factors enumerated in Rule 57.01 of the Rules of Civil Procedure , R.R.O. 1990, Reg 194. Those factors include the result achieved, the amounts claimed and recovered, the complexity and importance of the issues in the proceeding, the principle of indemnity, the reasonable expectations of the unsuccessful party, and any other matter relevant to costs.

[27] In the recent case of Apotex Inc. v. Eli Lilly Canada Inc. , 2022 ONCA 587 , the Court of Appeal for Ontario restated the general principles to be applied when courts exercise their discretion to award costs. The Court held that, when assessing costs, a court is to undertake a critical examination of the relevant factors, as applied to the costs claimed, and then “step back and consider the result produced and question whether, in all the circumstances, the result is fair and reasonable”. The overarching objective is to fix an amount for costs that is objectively reasonable, fair, and proportionate for the unsuccessful party to pay in the circumstances of the case, rather than to fix an amount based on the actual costs incurred by the successful litigant.

[28] In applying these factors here, I make several observations:

a. These case conferences have been necessitated by the Defendants’ ongoing, deliberate, and improper delay in paying what they owe the Plaintiff. Had they paid the settlement funds in a timely way, as required by the settlement agreement and by law, these case conferences would not have been required.

b. There is no basis in law for the Defendants’ position that they are entitled to pay the Plaintiff in monthly installments over a period of 13.5 months. They have maintained their position notwithstanding the Endorsement of December 18, 2024, which held that their view is not tenable at law.

c. The Plaintiff has been entirely successful in obtaining the remedies she has sought at the case conferences.

d. The Defendants have maintained that the Plaintiff’s concerns cannot properly be addressed by way of case conference. Had this been addressed by way of motion, as the Defendants insist it should have been, the Plaintiff would have been entitled to her costs if successful. Her costs would almost certainly have been higher.

e. Because the settlement amount has already been agreed to, every additional penny that the Plaintiff has to spend to enforce the settlement agreement effectively comes out of the settlement payment. She has no prospect of recovering it unless it is awarded to her through a costs award.

f. The Defendants challenge the quantum of the Plaintiff’s cost claim, stating that $2,500.00 would be a more appropriate costs award if one is to be granted. Notably, the Defendants do not provide their own costs outline. This diminishes the weight of their argument that the quantum sought by the Plaintiff is excessive ( LivingArt Kitchens Inc. v. Merenich , 2024 ONSC 3640 , at para. 12 ).

[29] I return to the fact that the Defendants asked this court to maintain the confidentiality of the settlement amount, and then relied on the non-disclosure of the settlement amount in support of their argument that the Plaintiff is not entitled to an Order containing the settlement amount. This, coupled with the Defendants’ steadfast refusal to pay what they clearly owe the Plaintiff, leads me to find that the Defendants are resisting their legal obligation to pay the Plaintiff, and are deliberately making it hard for her to enforce that obligation. This is inappropriate. It is not conduct that the court should countenance.

[30] I am of the view that it is appropriate to award the Plaintiff $8,000 in costs. This is between the partial indemnity and full indemnity costs sought by the Plaintiff. It is, in my view, a fair and reasonable result in light of the considerations outlined above. This is to be paid within 30 days.

Order granted

[31] A judgment shall go in the form attached, requiring the following:

a. The Defendants shall pay to the Plaintiff the entire amount owed to her in the settlement, which amount is specified in the attached judgment;

b. The Defendants shall pay to the Plaintiff interest on the above amount at the rate of 6.0%, beginning on October 24, 2024; and

c. The Defendants shall pay the Plaintiff her costs of the case conferences in the amount of $8,000, inclusive of HST, within 30 days of the date of this Endorsement.

Ira Parghi J.

Date: March 26, 2025

schedule “a”

ONTARIO SUPERIOR COURT OF JUSTICE (TORONTO REGION)

CIVIL ENDORSEMENT FORM (Rule 59.02(2)(c)(i))

BEFORE

Justice Ira Parghi

Court File Number :

CV- 20-00652840-0000

Title of Proceeding :

ANNA-MARIE MOUNTFORT

Plaintiff

-v-

KEVIN VUONG, LARRY LAU and AGENCY FOR PUBLIC AND SOCIAL INNOVATION INC.

Defendants

Case Management:

Yes

If so, by whom:

No

Participants and Non-Participants: (Rule 59.02(2)((vii))

Party

Counsel

E-mail Address

Phone #

Participant (Y/N)

Plaintiff

Neil Wilson and Meighan Coker

nwilson@swlawyers.ca , mcoker@whlawyers.ca

416-599-7900

Y

Defendants

Christopher Stanek and Jenna Kara

christopher.stanek@gowlingwlg.com , jenna.kara@gowlingwlg.com

416-862-4369

Y

Date Heard: (Rule 59.02(2)(c)(iii))

December 16, 2024

Nature of Hearing (mark with an “X”): (Rule 59.02(2)(c)(iv))

Motion

Appeal

Case Conference

Pre-Trial Conference

Application

Format of Hearing (mark with an “X” ): (Rule 59.02(2)(c)(iv))

In Writing

Telephone

Videoconference

In Person

If in person, indicate courthouse address:

Relief Requested: (Rule. 59.02(2)(c)(v))

Disposition made at hearing or conference (operative terms ordered): (Rule 59.02(2)(c)(vi))

Costs: On a

indemnity basis, fixed at $

are payable

by

to

[when]

Brief Reasons, if any: (Rule 59.02(2)(b))

The Plaintiff states that the Defendants are not complying with the terms of the settlement agreement by insisting on paying the settlement funds in monthly installments over a 13.5-month period. The settlement agreement is silent as to the deadline by which the settlement funds are to be paid. The Plaintiff states that the Defendants are required to pay the funds within a reasonable time, which the Plaintiff submits is 30 days since the date of the settlement agreement – a date that passed over 60 days ago. The Plaintiff seeks an order requiring the Defendants to pay the settlement funds in full, pursuant to Rule 49.09(a). The Defendants state that their proposed approach to payment of the settlement funds is reasonable, and that if the timing of payment was so important to the Plaintiff, terms regarding the timing of payment should have been established in the settlement agreement or negotiated after the Plaintiff accepted the Defendants’ offer. For the reasons below, I grant the Plaintiff an order requiring payment by 5 pm on December 19, 2024 of the settlement funds currently held in trust by the Defendants’ solicitor, and requiring payment by 5 pm on January 3, 2025 of the balance of the settlement funds. Merits of the Plaintiff’s Request for Relief It is not contested before me that the Defendants made a settlement offer that the Plaintiff accepted. The settlement agreement entered into by the parties does not provide that the settlement funds would be paid out over a 13.5 month period. It does not provide for any such “payment plan”. It simply provides for payment. The parties do not suggest otherwise. No payment plan was ever negotiated or agreed upon. The parties do not suggest otherwise. It is clear at law that for a payment plan to apply to a settlement, it must be bargained for, failing which it is an implied term of the settlement agreement that payment will be made in a reasonable time, and in a single instalment ( Hall v. Smith, at para. 13 ). It is also clear at law that if the settlement agreement does not establish a precise deadline for payment, then payment is to be made within a “reasonable period” ( ADT Security Services Canada, Inc. v. Fluent Home Ltd., 2023 ONSC 5052 , at para. 7 ). Applying these principles here, I find that it is an implied term of the settlement agreement between the parties that payment will be made within a reasonable period, in a single installment. In considering what a reasonable period for payment is, I acknowledge that there is no hard and fast rule. I am unable to think of a situation where more than 30 days would be required to formalize and prepare payment, barring some wildly unusual circumstance. No such circumstance is argued before me here. In ADT Security Services, the court held that the “reasonable options” in the case before it would be seven days, ten days, or 30 days, and went on to decide that 30 days would be a reasonable period (at para. 7). Even if I were to accept that the Plaintiffs in this matter might need more time, as individuals rather than corporate defendants, to organize payment, I would see no basis for giving them more than 45 days. But here, over 90 days have passed since the settlement agreement was entered into on September 9, 2024. Even on the most generous timeline, the payment is well overdue. The Defendants suggest that the issue is whether “immediate payment” is a term of the settlement agreement. I respectfully disagree. The issue is whether payment within a “reasonable period” of time is an implied term of the settlement agreement. The jurisprudence makes clear that it is. In the result, I find that the Defendants have not complied with the terms of the accepted settlement offer and relief is appropriate under s. 49.09. Defendants’ Preliminary Objections The Defendants argue, as a preliminary objection, that the Plaintiff improperly brings a motion at this case conference, without having ever served a Notice of Motion, and has “ambushed” the Defendants and the court by doing so. The Defendants assert that I do not have jurisdiction to grant the relief requested by the Plaintiff and that it would be an error in law for me to do so. As I explained during the case conference, the case law is clear that case conferences are meant to combat “motions culture” and the unnecessary delay and costs to which it gives rise. The case law (see, e.g., Miller v. Ledra et al., 2023 ONSC 4656 ) and rule 50.13(6) of the Rules of Civil Procedure are clear that I may grant substantive relief at a case conference where notice has been given and it is appropriate for me to do so. I invited the Defendants more than once to make submissions on why it is inappropriate for me to do so here. I asked them to explain what evidence or material they say I ought to have before me for the purposes of evaluating the Plaintiff’s request for relief, but do not actually have in front of me. I explained that if indeed there are materials that I should have in front of me but do not, that will be relevant to my assessment of whether it is appropriate for me to grant the relief requested. In response, the Defendants submit, first, that the Plaintiff wishes me to make a finding that the Defendants have not complied with the settlement agreement and that I should not make such a finding without evidence. Respectfully, I do not agree. I am not being asked to make any factual finding. I am being asked to determine whether, as a matter of law, the settlement funds are to be paid within a certain time frame, having regard to the terms of the agreement and any applicable legal principles. I am then being asked to decide, based on that determination, whether the Defendants are complying with the settlement agreement by paying the funds monthly over a period of 13.5 months. This is the only issue in dispute. It is a legal issue. It is one that I can determine based solely on the settlement agreement and the case law, both of which are before the Defendants and before me. Second, the Defendants submit that I ought to have before me evidence as to the Defendants’ ability to pay the settlement funds, such as evidence about their financial circumstances and the financial statements of the corporations. They say this evidence is relevant to the issue of the reasonable timing of payment of the settlement funds. I am unable to agree. I see no support in the case law for the proposition that a defendant’s ability to pay is relevant when determining what constitutes a reasonable time frame in which they are to pay an agreed-upon settlement amount. Their ability to pay may be relevant to their own assessment of what they consider to be a reasonable time frame for payment. It may therefore have been relevant to their negotiations with the Plaintiff on the timing of payment, had they chosen to negotiate on this point. But it is not relevant to the issue before me. Finally, I do not accept the intertwined arguments that the Plaintiff had to file a Notice of Motion to seek this relief, that the Plaintiff “ambushed” the Defendants and me by not doing so, and that I do not have jurisdiction to grant the relief sought. A Notice of Motion was not necessary. The Rules and the case law are clear that case conference judges may consider requests for relief that would otherwise be made by way of motion and may make orders on substantive matters where notice has been given and it is appropriate to do so. Here, notice was clearly given. The relief the Plaintiff was seeking was made known when she requested the case conference. It was explained clearly in her case conference materials, which discuss, and append, the settlement agreement, relevant correspondence between the parties, and the jurisprudence on the timing of settlement payments, together with a draft form of the order she wishes me to sign. Nothing about what she seeks, or the basis on which she seeks it, was a surprise. There was no “ambush,” as the Defendants claim. It is also appropriate for me to grant the relief sought. The Defendants provided their own case conference materials in response to the Plaintiff’s materials, in which they articulated their position regarding the relief sought. During the case conference, they had the opportunity to make all the submissions they wished and I listened closely to those submissions. I have before me all the materials that are relevant to the Plaintiff’s request. I cannot identify any additional relevant materials that I would require to consider the request. Importantly, neither could the Defendants, when asked. I am in receipt of written submissions from counsel and have reviewed them. I invited both counsel to make oral submissions before me and they both did so. I listened closely to what they both had to say. It is, in these circumstances, appropriate to grant the requested relief. Requiring the Plaintiff to instead bring a formal motion, as the Defendant says I should, would be a triumph of form over substance. It would increase the parties’ costs, only to see the parties reconvene many months from now with the same materials and the same arguments. This would not be in the interests of justice. The issue before me does not warrant a hearing that the parties would have to wait months to argue. Moreover, it would effectively deny the Plaintiff the relief she seeks (prompt payment) and grant the Defendants what they want (a lengthy delay in payment). It would force the Plaintiff to loan money to the Defendants, interest-free, for well over a year. This would prejudice her and benefit them. Additionally, there would be institutional prejudice to the justice system. As Justice Koehnen discussed in Miller v. Ledra, there are “serious delays” on the civil list in Toronto. One of the causes of these delays is a “’motions culture’ where things that should be resolved in a practical way in a short conversation or case conference are subjected to the lengthy formal processes of motions or applications” (at para. 20). The issue before me is one that should be resolved in a practical way at a case conference. Requiring the Plaintiff to bring a formal motion would “be an instance of burdening the parties with elaborate procedures that actually impede justice. It would be an example of perfection being the enemy of the good” (at para. 28). By contrast, if I grant the relief sought by the Plaintiff, the worst prejudice the Defendants will face is that they will be required to pay the money they owe to the Plaintiff on a timeline that is more onerous to them than the one they prefer. Even if this constitutes prejudice – and I am not certain it does – it is far outweighed by the prejudice to the Plaintiff and the justice system that will arise if I do not grant the relief. I accordingly grant the Plaintiff an order requiring payment by 5 pm on December 19, 2024 of the settlement funds currently held in trust by the Defendants’ solicitor, and requiring payment by 5 pm on January 3, 2025 of the balance of the settlement funds. Counsel may provide an order to this effect for my execution via email to my judicial assistant, Jessica Crispo.

Additional pages attached:

Yes

X

No

December 18

, 20

24

Date of Endorsement (Rule 59.02(2)(c)(ii))

Signature of Judge/Associate Judge (Rule 59.02(2)(c)(i))