Court File and Parties

Court File No.: CV-16-00010214-00ES Date: 2025-07-28 Superior Court of Justice - Ontario

Re: Sharbjit Deol, in her capacity as Trustee of the Estate of Harpinder Singh Deol, Applicant

And: J & K Shopping Centre Inc., J & K Properties Inc., Taj Supermarket, Jasvinder Singh, The Estate of Kulbir Singh, Raghbir Singh, Kulwant Singh, John Doe Corporation Number 1, John Doe Corporation Number 2, and John Doe Corporation Number 3, Respondents

Before: Justice B. Dietrich

Counsel: Amandeep Dhillon, for the Applicant Patrick Di Monte, for the Respondents

Heard: July 23, 2025

Endorsement

[1] In this motion, the applicant/moving party, Sarbjit Deol (the "Moving Party") brings a motion seeking, among other relief, an order for judgment in accordance with the terms of a settlement reached between herself and certain of the respondents, namely, J & K Shopping Centre Inc., J & K Properties Inc., Taj Supermarket, Jasvinder Singh, The Estate of Kulbir Singh, Raghbir Singh, and Kulwant Singh, in the within application (the "Responding Parties"), and an order directing the Responding Parties to execute the draft Minutes of Settlement (the "Minutes"), to which the parties agreed. She also seeks an order that the Responding Parties sign the draft Full and Final Release and Indemnity (the "Release and Indemnity") in favour of the Moving Party, or an order that the Responding Parties have released and indemnified the Moving Party in accordance with the draft Release and Indemnity.

[2] For the reasons that follow, I find that the Moving Party should be granted the relief she seeks.

Background Facts

[3] The Moving Party is the spouse of the late Harpinder Singh ("Harpinder"), who died in 2015, at the age of 61. Harpinder had four brothers, each of whom (or his estate) is a Responding Party. At the time of Harpinder's death, he and his brothers were business partners in several ventures and real estate holdings (the "Family Business"). They operated the Family Business through one or more corporations, as well as personally, in their respective names.

[4] Following Harpinder's death, the Moving Party commenced the within application on June 16, 2017 against Harpinder's brothers and the Family Business corporations. She sought an order requiring the Responding Parties to purchase her interest (as Estate Trustee of Harpinder's estate) in the assets owned by the brothers, including Harpinder, and the assets or shares of the Family Business.

[5] On April 5, 2018, McEwen J. declared that the Moving Party had a 20-per cent interest in the real property in which she and the Singh brothers (and their families) were living. Justice McEwen J. ordered some of the Responding Parties to purchase that interest from her. They paid her for her interest on September 30, 2018.

[6] Justice McEwen also declared that the Moving Party had a 20-per cent shareholding in two corporations and ordered the Responding Parties to purchase those interests from her. The Responding Parties did not comply with this order.

[7] The Moving Party was forced to bring a summary judgment motion on September 13, 2019. On that motion, I ordered the Responding Parties to sell certain properties and pay the Moving Party 20 per cent of the sale proceeds plus her costs of the motion.

[8] The Responding Parties did not comply with my order. On February 2, 2020, I granted an order permitting the Moving Party to bring a motion to address the breaches of my earlier order.

[9] Following the February 2, 2020 hearing, the Moving Party and the Responding Parties reached a settlement in the within application in late February 2020. The keys terms of the settlement included: a) a payment to the Moving Party of $1.7 million; b) a payment by the Responding Parties of commissions due and owing to Re/Max Royal Properties Realty Ltd. ("Re/Max"); c) the execution of the Minutes; d) the execution of the Release and Indemnity in favour of the Moving Party; and e) upon payment of the settlement funds and delivery of the executed Release and Indemnity, the Moving Party would take out a consent order dismissing the application without costs.

[10] Regarding the Release and Indemnity, the Minutes provide as follows at paragraph 7:

The Singh Respondents will execute a full and final release and indemnity in favour of Deol ("Release and Indemnity"), which Release and Indemnity will include a comprehensive and unconditional indemnity of Deol for any and all claims that may be brought against her, and/or against the Respondents, … not only with respect to the matters and issues raised in the Application (including any claims made by ReMax or Ernst & Young with respect to their work in/for the Application) but with respect to any and all matters between the Settling Parties, and any and all matters with respect to the operations, management, and conducting of the business of the Corporate Respondents, including any and all prior, existing and future claims, actions, complaints and/or proceedings which may be brought against the Singh Respondents or Deol by any third persons/parties.

[11] The Responding Parties paid the settlement funds to the Moving Party by March 12, 2020, and they paid the commission to Re/Max on April 8, 2020. The Moving Party transferred her shares in the Family Business corporation to one of the brothers on March 11, 2020, as agreed.

[12] Despite the Moving Party's repeated requests, the Responding Parties have refused to sign the Minutes, and the Release and Indemnity. The Moving Party has signed the Minutes.

[13] Following the settlement in 2020, the Responding Parties brought an action against their counsel, which resulted in that counsel removing themselves from the record. The Responding Parties then retained Patrick Di Monte to represent them in their action against their former counsel.

[14] On January 30, 2025, at the scheduling appointment regarding this motion, it became apparent to Gilmore J. that the Responding Parties were refusing to sign the Release and Indemnity because they believed that it would compromise their action against their former counsel. Justice Gilmore suggested that the parties resolve the issue by considering a new Release and Indemnity with a carve-out regarding the action against the former counsel.

[15] In her endorsement dated January 30, 2025, Gilmore J. directed as follows:

a) Mr. Di Monte to obtain instructions from the Responding Parties regarding the terms of the Release and to deliver his version of the Release to the Moving Party's counsel within 14 days.

b) The Moving Party's counsel to provide an Offer to Settle the motion based on the revised Release (as amended, if necessary), inclusive of costs, to be served within seven days of receiving the Release.

c) If the matter settles, a written motion for dismissal could be sent to Gilmore J.

d) If the matter does not settle:

i. The Responding Parties' responding record to be served by March 21, 2025;

ii. The Moving Parties' reply material to be served by April 18, 2025;

iii. Cross-examinations, if any, by May 16, 2025;

iv. Motion to be heard July 23, 2025;

v. Costs outlines to be uploaded at least 2 days prior to the motion, and counsel to be prepared to address costs; and

vi. Factums served in accordance with the Rules of Civil Procedure.

[16] The Responding Parties did not comply with a single direction set out in Gilmore J.'s endorsement. They did not prepare and deliver a revised Release, and they did not file any responding material, a costs outline, or a factum in respect of this motion.

[17] The Release and Indemnity, in respect of which the Moving Party seeks an order, contains the following paragraph:

IT IS FURTHER AGREED AND UNDERSTOOD that the Singh Respondents will not make any claim or take or continue any proceedings against any other person or corporation, who might claim, in any manner or forum, contribution or indemnity in common law or in equity, or under the provisions of any statute or regulation, from Deol in connection with the matters outlined in the Minutes of Settlement or this Full and Final Release. If the Singh Respondents commence such an action or continue any such proceeding, and if Deol is added to such proceedings in any manner whatsoever, whether justified in law or not, the Singh Respondents will immediately discontinue the claim, action, complaint, application, or proceeding and will be liable for the legal costs incurred by Deol in any such proceeding on a full indemnity basis (the "Impugned Provision").

Issue

[18] The only issue before the court is whether the settlement should be enforced based on the terms of the draft Minutes and the draft Release and Indemnity.

Positions of the Parties

[19] The Moving Party submits that she is entitled to a judgment in accordance with the settlement reached and an order directing the Responding Parties to execute the Minutes of Settlement (a draft of which is attached to her affidavit sworn May 13, 2024 (the "May 13, 2024 Affidavit")), within seven days of the order. The Moving Party also submits that she is entitled to an order directing the Responding Parties to execute the Release and Indemnity (a draft of which is attached to the May 13, 2024 Affidavit).

[20] The Moving Party further submits that she is entitled to an order dismissing the within application, and her costs of this motion on a full or a substantial indemnity basis.

[21] The Responding Parties submit that the court should decline to exercise its discretion to enforce the settlement and should permit the Responding Parties to revise the Release and Indemnity to create a carve-out that would in no way impede their ability to continue their action against their former counsel.

Law

[22] Rule 49.09 (a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, states that where a party to an accepted offer to settle fails to comply with the terms of the offer, the other party can make a motion to a judge for a judgment in the terms of the accepted offer, and the judge may grant judgment accordingly.

[23] The rule contemplates a two-step inquiry: a) whether there is a genuine issue about the existence of an agreement to settle; and b) whether, on all the evidence, the agreement should be enforced.

[24] To find that a binding agreement exists, there must be a mutual intention to create a legally binding agreement, and the essential terms of the agreement must have been agreed upon: Stargrove Holdings Inc. v. Al Noubani, 2022 ONSC 6006, at para. 5; Hodaie v. RBC Dominion Securities, 2011 ONSC 6881, at para. 17, aff'd 2012 O.J. No. 5428 (C.A.).

[25] The discretionary decision not to enforce a concluded settlement, especially where that settlement has been partially or fully performed, should be reserved for the rarest of cases where enforcement is not aligned with the interests of justice: Srebot v. Srebot Farms Ltd., 2013 ONSC 84, at para. 6.

Analysis

[26] There is no dispute that there was a settlement.

[27] The Moving Party's counsel drafted the Minutes and the Release and Indemnity. He sent them to Stephen Schwartz ("Mr. Schwartz"), counsel to the Responding Parties. Mr. Schwartz reviewed the drafts and made suggested revisions, but he made no revision to the Impugned Provision.

[28] The Responding Parties paid the settlement amount. Mr. Schwartz enclosed the initial deposit payment of $50,000 on February 28, 2020 in a letter stating that the payment was "in accordance with the settlement between the parties." The Responding Parties subsequently paid the balance of the $1,700,000 owing under the settlement.

[29] Between March 2020 and November 2023, counsel to the Moving Party followed up with Mr. Schwartz many times requesting that the Responding Parties sign the Minutes and the Release and Indemnity. They never did, despite their agreement to the terms of the documents and despite having paid the Moving Party the amount owing to her pursuant to the Minutes.

[30] The Moving Party submits that the Responding Parties are now seeking to renegotiate the Release and Indemnity more than five years after it was negotiated and agreed to.

[31] Counsel to the Responding Parties submits that the court should exercise its discretion not to enforce the settlement because the terms of the Impugned Provision, which include a claim over provision, would preclude the Responding Parties from pursuing their action against their former counsel. They further submit that if there were a carve-out for their claim against their former counsel, and if such counsel did bring a crossclaim against the Moving Party, she would be protected by the indemnity, which the Responding Parties are obliged to give.

[32] I agree with the Moving Party that this is not the rare case in which the court should exercise its discretion not to enforce the settlement. Here, it is undisputed that the parties reached an agreement, and that the settlement has been partially performed.

[33] There is no suggestion that the Minutes are contrary to public policy. There is no language in the Minutes that narrows the scope of the Release to something less than a standard release. The inclusion of a claim over provision was considered by Vella J. in Terranate Winston Churchill Inc. v. Teti Transport Ltd., et al., 2020 ONSC 7577. In that case, at para. 52, Vella J. found that "claims over/contribution and indemnity clauses are usual elements of a standard general release… 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." In other words, if there is to be a carve-out, the language in the provision must be explicit. At para. 59, Vella J. reiterated that the fundamental premise of full settlements is that the release is intended to buy the releasee peace of mind in relation to all claims arising from, and in connection with, matters raised in the statement of claim both in the settled proceeding, and any other proceeding in which the releasee could be brought back into the dispute (even if by another party or nonparty).

[34] The Moving Party is entitled to this peace of mind. I am not persuaded by the Responding Parties' argument that even if a crossclaim were brought against her by a third party, she could count on the Responding Parties to honour their indemnity. The Responding Parties have continuously obstructed the Moving Party in the within application, including by disobeying court orders.

[35] I can understand why the Moving Party would have little confidence in this remedy. The Moving Party was forced to sue her late husband Harpinder's four brothers to recover Harpinder's one-fifth interest in the Family Business. She did not receive his full interest for five years. Her counsel then pleaded with the Responding Parties for three more years to sign the Minutes and the Release and Indemnity, which they refused to do. Their refusal necessitated this motion, nearly two years later. It is now nearly ten years since Harpinder died. During this time, the Responding Parties have not respected several court orders.

[36] I accept the Moving Party's counsel's argument that a crossclaim against the Moving Party at this stage is remote. It is likely that the limitation period during which such a claim could be brought has expired.

[37] In the May 13, 2025 Affidavit, the Moving Party stated, "I want the Application wrapped up and I want to move on with my life without this application lingering above my head." The Moving Party is entitled to the benefit of finality that parties reasonably expect from settlement.

[38] I see no injustice in granting the relief that the Moving Party seeks.

Disposition

[39] The Moving Party's motion is granted.

[40] An Order shall issue:

a) granting judgment to the Moving Party in accordance with the settlement reached between her and the Responding Parties;

b) directing the Responding Parties to execute the Minutes of Settlement (attached as Exhibit "S" to the May 13, 2024 Affidavit) within seven days of the Order;

c) directing the Responding Parties to execute the draft Release and Indemnity (attached as Exhibit "S" to the May 13, 2024 Affidavit) within seven days of the Order; and

d) dismissing the within application on a without costs basis.

Costs

[41] The Moving Party has succeeded on this motion and is entitled to her costs. The Moving Party has delivered a costs outline. She seeks costs, on a substantial indemnity basis, in the amount of $19,000.

[42] I am satisfied that the Responding Parties' conduct regarding this motion has been egregious, and that costs at an elevated scale are appropriate in this case. The Responding Parties caused the Moving Party to continue to incur legal costs in her efforts to enforce the settlement, which the Responding Parties did not dispute had been reached. The Responding Parties failed to comply with the orders of McEwen J., Gilmore J., and me. The Responding Parties were warned about the costs consequences of this motion by both Gilmore J. at the scheduling appointment, and by Myers J. before whom the parties appeared on July 16, 2025 regarding this motion.

[43] I fix the costs payable by the Responding Parties to the Moving Party, on a substantial indemnity basis, at $19,000, inclusive of HST and disbursements. These costs are payable by the Responding Parties, on a joint and several basis, within 30 days.

B. Dietrich, J.

Date: July 28, 2025