Court File Numbers
CV-12-456495-0000
CV-12-456491-0000
CV-12-456493-0000
CV-12-456496-0000
CV-14-00501171-0000
Court and Parties
Ontario Superior Court of Justice
Plaintiffs:
- Noreen Ramji
- Zahra Ramji
- Fiaz Basaria
- Nadeem Basaria
- Talon International Inc.
Defendants:
- Talon International Inc.
- Zubair Inuwa Ahmed
Before: E.M. Morgan
Counsel:
- Cameron Wetmore, for Talon International Inc.
- Blair Bowen, for the Plaintiffs (Noreen Ramji, Zahra Ramji, Fiaz Basaria, and Nadeem Basaria) and the Defendant, Zubair Inuwa Ahmed
Heard: April 10, 2025
Amended Endorsement
[1]
Overview
Talon International Inc. ("Talon") moves under Rule 49.09 to enforce settlements that it claims to have reached with the five parties adverse to it in each of the actions at issue here. The claim relates to aborted purchases and sales of condominium units in a hotel property on Bay Street in Toronto for which Talon was vendor under each of the five agreements at issue here.
2The facts relating to the alleged settlement are identical in all five cases except for a variance in the purchase prices to be paid by the individual parties (collectively, the “Purchasers”). The five actions and five motions will be discussed here as one. For convenience, they are:
- Talon v. Zubair Inuwa Ahmed – CV-12-456495
- Fiaz and Nadeem Basaria v. Talon – CV-12-456493
- Noreen Ramji v. Talon – CV-12-456495
- Zahra Ramji v. Talon – CV-12-456491
- Nadeem Basaria v. Talon – CV-12-456496
[3]
Background
On November 17, 2022, Talon and the Purchasers attended a mediation before Justice Colin L. Campbell. During the mediation, settlement offers were canvassed, one of which was a proposal for the Purchasers to dismiss their claims against Talon in exchange for Talon returning 60% of their deposits. The evidence, which comes from affidavits filed by the lawyers for each side (who, quite properly, each had other counsel appear for their clients before me on this motion), indicates that the 60/40 concept originated with Justice Campbell but was verbally agreed to and adopted as an offer by Talon.
4None of the Purchasers agreed to the 60/40 settlement proposal during the course of the mediation, which therefore ended unsuccessfully. Further, none of the various proposals were left open for acceptance after the mediation ended. There was little doubt that the mediation ended unsuccessfully.
5Following the mediation session, Talon’s lawyers – Symon Zucker and Nancy Tourgis – and the Purchasers’ lawyer – Carol Dirks – exchanged communications which, for the most part, concerned a different purchaser's agreement to accept a settlement with Talon. The separate settlement with that purchaser was finalized in April 2023.
6The settlement discussions with respect to the five Purchasers whose actions are at issue here proceeded with a number of phone calls and emails between Ms. Tourgis and Mr. Zucker on one hand and Ms. Dirks on the other. Putting these messages together, the ensuing discussions, such as they were, can best be described as a series of misunderstandings.
7On March 10, 2023, either Mr. Zucker or Ms. Tourgis (it is unclear from the ambiguous description in Mr. Zucker’s affidavit) called Ms. Dirks to inquire whether her clients were prepared to accept Talon’s offer of a return of 55% of the deposit in return for an end to the litigation. This conversation apparently ended inconclusively, as a follow-up email was sent to Ms. Dirks on April 2, 2023, asking her to confirm her clients’ acceptance of the 55% offer. Ms. Dirks replied by email, dated April 21, 2023, stating that Talon’s 55% offer was not acceptable.
8On April 27, 2023, Ms. Dirks requested a report from the mediator that the mediation had concluded, so that the matters could be set down for trial.
9On May 5, 2023, there was another phone call between the lawyers. In Mr. Zucker’s version, Ms. Dirks stated during that call that her clients’ offer at the mediation that they would accept 60% of the deposit back remained open. In Ms. Dirks’ version, the conversation was less definite, and ended with her saying that she would have to seek instructions from her clients as to whether that remained on the table.
10On May 19, 2023, Ms. Tourgis wrote to Ms. Dirks stating that her client accepts Ms. Dirks’ client’s offer to settle for a return of 60% of the deposit. As indicated above, that was not Ms. Dirks’ understanding of the previous conversation. In that situation, one would think that Ms. Tourgis’ letter required a response from Ms. Dirks correcting the record.
11Ms. Dirks deposes that at that point, unfortunately, she was caught up in a family emergency and was unable to respond as promptly as she might otherwise have done.
12Having not heard anything from Ms. Dirks, on June 26, 2023, Ms. Tourgis sent a draft Mutual Release and Termination Agreement to Ms. Dirks. This was meant to document an agreement to end the litigation in return for 60% of the deposit. On July 24, August 10, and August 29, 2023, follow-up emails were sent by Ms. Tourgis to Ms. Dirks, but there was no reply to any of these.
13On September 5, 2023, now apparently back at work, Ms. Dirks wrote to Ms. Tourgis and Mr. Zucker indicating that she still had to get instructions from her clients. This was responded to by email from Ms. Tourgis indicating that there had been no withdrawal of the 60% offer by Ms. Dirks and that Talon therefore considered the settlement agreement to be firm. A further email was sent to Ms. Dirks on September 28, 2023, inquiring about the delay, and indicating that Talon would be seeking a case conference to discuss the matter.
14At the case conference held on October 17, 2024, I set a hearing date of April 10, 2025 for this motion.
[15]
Analysis
In their submissions at the hearing, each side contends that the other has acted in “bad faith”. Counsel for Talon says that Ms. Dirks and her clients have unduly delayed in responding, and he chalks that delay up to the Purchasers having changed their mind after agreeing to the 60% settlement.
16Counsel for the Purchasers, on the other hand, says that Mr. Zucker and Ms. Tourgis have mischaracterized the state of the settlement discussions, and that they are trying to impose a settlement where there was no agreement at all.
17In my view, there is no bad faith on either side. All three of the lawyers engaged in the settlement discussions are experienced counsel whose professionalism I respect and who have no personal stake in this matter except to protect their respective clients’ rights. I do not impugn any of their conduct. What we have here, as was famously said by Strother Martin about Paul Newman, is failure to communicate.
18It would seem that Ms. Dirks’ family circumstance took her attention away from this file for a number of months, which coincided with a misunderstanding of a phone call by Mr. Zucker and Ms. Tourgis. Neither side is at fault, and the gaps in correspondence and conversations do not suggest any bridge in the communication gap between the parties. One side thought they heard the other agree but the agreement was never confirmed; the other side thought they heard a proposal that required instructions but was distracted from obtaining those instructions.
19There was, to put it at its most basic, no meeting of the minds regarding a 60% refund or any other terms of agreement. There is no settlement.
[20]
Disposition
Talon’s motion is dismissed.
21The matter is to proceed on the merits of the claims and counterclaims.
[22]
Costs
This motion arose due to an unfortunate miscommunication and an emergency absence from the office by counsel. I understand why Talon was motivated to bring the motion and why the purchasers were compelled to resist it. Under the circumstances, I am exercising my discretion to order that there be no costs of the motion payable by either party to the other.
Morgan J.
Date: April 22, 2025