Court File and Parties

Court File No.: FS-22-004923-00 Date: 2025-08-12

Superior Court of Justice – Ontario

Re: Naghmeh Dadgostar, Responding Party, Applicant

v.

Dr. Mir Shafiee, Moving Party, Respondent

Heard: July 28, 2025

Before: Fitzpatrick J.

Counsel:

• S. Sack for Responding Party, Applicant, Naghmeh Dadgostar
• L. Bortolussi for Moving Party, Respondent, Dr. Mir Shafiee

Judgment on Motion for Summary Judgment

[1] Introduction

This is a family law case. The moving party father, Dr. Mir Shafiee ("Dr. Shafiee") brings a motion for summary judgment pursuant to r. 16(1) of the Family Law Rules, O. Reg. 114/99 (the "Rules"). His motion seeks a declaration and final order that there is a binding agreement/settlement between the parties and that the terms of the agreement/settlement be enforced without a trial. The responding party mother, Naghmeh Dadgostar ("Ms. Dadgostar") also seeks an order for summary judgment. Ms. Dadgostar seeks judgment finding there was no binding settlement, and that the matter be returned to a case conference before Rasaiah J. at Sault Ste. Marie, further to the endorsement of Rasaiah J. dated January 7, 2025.

Background

[2] The parties were married on November 18, 1995. The date of separation is disputed. In any event, separation had occurred for certain as of March 21, 2021. Dr. Shafiee left the matrimonial home located in Sault Ste. Marie, Ontario in December 2021. The parties have three children now, all of university age. The parties are of substantial means.

[3] The parties have had the benefit of counsel throughout the litigation. On October 22, 2022, a four-way meeting was held in person. On November 10, 2022, counsel for Ms. Dadgostar sent a letter to counsel for Dr. Shafiee (the "Letter Offer").

[4] The Letter Offer commenced by saying Ms. Dadgostar was not prepared to accept Dr. Shafiee's position as expressed at the four-way meeting. The Letter Offer continued with a recitation of seven different "deficiencies and issues" that counsel for Ms. Dadgostar asserted her client had with Dr. Shafiee's position. It then continued:

The above issues must be rectified and addressed prior to Ms. Dadgostar reconsidering her position as she does not have all the information to make an informed decision or an informed counter offer.

Ms. Dadgostar's offer that was presented at the meeting held on October 24, 2022 is still on the table if Mr. Shafiee prefers to avoid the above issues. To reiterate, Ms. Dadgostar's current offer is as follows:

1. Ms. Dadgostar will retain the matrimonial home and the cottage, and assume the mortgage on the matrimonial home.

2. There shall be no equalization payment made by Ms. Dadgostar to Mr. Shafiee.

3. Mr. Shafiee will pay spousal support to Ms. Dadgostar in the amount of $15,000.00 per month until the youngest child has commenced post-secondary education. Following this, Mr. Shafiee will pay a sum of $10,000.00 per month in spousal support. Spousal support shall terminate after it has been paid for a total of 10 years.

[5] On December 19, 2023, counsel for Dr. Shafiee sent a letter to counsel for Ms. Dadgostar purporting to formally accept the terms contained in the Letter Offer, resolving all matters in the matrimonial dispute on a final basis.

[6] Between November 11, 2022, and December 18, 2023, various correspondence was exchanged between counsel for the parties. The parties make very different submissions on what, if anything, the court should take from the content of this correspondence. I will discuss the findings I am prepared to make on this motion about that correspondence in my reasons for decision set out below.

[7] On January 7, 2025, the parties held a case conference before Rasaiah J. Rasaiah J. directed, "as to next steps, the important issue to deal with first is the validity of the offer/enforceability of settlement asserted by the respondent". Rasaiah J. then set up a timetable for the within motion. Finally, Rasaiah J. provided "if the motion proper is not successful, this case must be set for a case conference continuation before Rasaiah J."

The Law

[8] The parties agreed on the relevant legal principles concerning the availability of summary judgment in this matter. Pursuant to r. 16(1) of the Rules, a party may make a motion for summary judgment for a final order without a trial on all or part of any claim made or any defence presented in the case. If there is no genuine issue requiring a trial of a claim or defence, "the court shall make a final order accordingly".

[9] Summary judgment rules must be interpreted broadly favouring proportionality and fair access to the affordable, timely and just adjudication of claims. The pronouncements from the Supreme Court of Canada in the leading case Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87 ("Hryniak"), at paras. 49 and 50 concerning principles applicable to summary judgment motions are well known:

There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.

[…] It bears reiterating that the standard for fairness is not whether the procedure is as exhaustive as a trial, but whether it gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute.

[10] The principles of Hryniak apply to cases proceeding under r. 16 (Chao v. Chao, 2017 ONCA 701, 99 R.F.L. (7th) 281, at para. 28). Each party must "put its best foot forward" with respect to the existence or non-existence of material issues to be tried (Ramdial v. Davis, 2015 ONCA 726, 341 O.A.C. 78, at para. 17).

Analysis

[11] Rule 18 of the Rules govern offers to settle in family law cases. In this matter, the parties agree the Letter Offer does not comply with the provisions of r. 18.

[12] On December 6, 2022, Dr. Shafiee made a counter-offer by letter. Ms. Dadgostar takes the position that by operation of the common law of contract, the making of the counter-offer terminated Dr. Shafiee's ability to subsequently return and accept the Letter Offer.

[13] Dr. Shafiee takes a contrary position with respect to the effect of the counter-offer. Dr. Shafiee argues the counter-offer is of no import to this matter. As the Letter Offer is acknowledged to be non-Rule 18 compliant, the analysis of the issue on this motion must proceed using the lens of the jurisprudence developed under r. 49 of the Rules of Civil Procedure (the "RCP"). Dr. Shafiee relies on r. 1(7) of the Rules which provides:

(7) If these rules do not cover a matter adequately, the court may give directions, and the practice shall be decided by analogy to these rules, by reference to the Courts of Justice Act and the Act governing the case and, if the court considers it appropriate, by reference to the Rules of Civil Procedure.

[14] Dr. Shafiee also relies on r. 49.07(2) of the RCP which states:

(2) Where a party to whom an offer to settle is made rejects the offer or responds with a counter-offer that is not accepted, the party may thereafter accept the original offer to settle, unless it has been withdrawn or the court has disposed of the claim in respect of which it was made.

[15] Dr. Shafiee submits that common law principles of contract law related to offer and acceptance are ousted by the application of r. 49.07(2) of the RCP. Dr. Shafiee relies on the decision Owen-Lytle v. Lytle, 2015 ONSC 7673, 71 R.F.L. (7th) 364 ("Owen-Lytle"), where Woodley J., dealing with a family law case and a non-compliant Rule 18 offer, states at para 25:

An offer is not terminated by a counter-offer or a rejection and where a party rejects an offer to settle and responds with a counter-offer that is not accepted, the party may accept the original offer to settle unless it has been withdrawn or the court has disposed of the claim or where the subsequent offer in writing is less favourable to the opposing party and is determined to be an implicit withdrawal of an offer to settle.

[16] This line of argument took up a good deal of time in both the written materials of the parties and their oral arguments. After having the benefit of considering all the arguments of the parties, and reviewing the case law placed before the Court by the parties, in my view, I do not accept that the provisions of r. 49.07(2) of the RCP were implicitly incorporated into the Letter Offer, nor does the provision of r. 1(7) of the Rules serve to automatically have this provision, r. 49.07(2) apply to the Letter Offer. I say this for a number of reasons.

[17] First, the Owen-Lytle decision was considering an offer to settle contained in a family law settlement conference brief. The offer was expressly not made under r. 18 of the Rules. Woodley J. found at para. 5(b) of the decision, among other things, that acceptance and enforcement of a non-Rule 18 compliant offer made in a family law case is governed by "the law of contract, analogy to the Family Law Rules, by reference to the Courts of Justice Act and Rules of Civil Procedure".

[18] The specific issue to be decided in Owen-Lytle was expressly set out in para. 22 of the judgment. It stated:

The question arises whether an offer can be withdrawn by a document other than utilizing a specific "notice withdrawal".

[19] In my view, the ratio decidendi of the Owen-Lytle decision was not directed at the specific legal question which is raised on this motion. In this matter, the responding party relies on the common law principle that the making of a counter-offer destroys the ability of the counter-offering party to subsequently return to accept an earlier offer.

[20] In my view, the application of common law principles concerning the effect of counter-offers made in family law cases in response to offers to settle, which do not fall within either the Rule 18 regime or expressly within the Rule 49 regime of the RCP, was answered by the Ontario Court of Appeal in Scanlon v. Standish, [2002] O.J. No. 194 ("Scanlon"). I will discuss that decision later.

[21] While r. 1(7) indicates regard is to be had to the RCP, it is only in the express circumstance where the Rules, "do not cover a matter adequately". Rule 1(7) is also permissive in that it states the Court may give directions and the practice shall be decided by analogy to the Rules, reference to the Courts of Justice Act and the Act governing the case. Rule 1(7) then continues to direct "if the court considers it appropriate, by reference to the Rules of Civil Procedure".

[22] In my view, r. 18 of the Rules adequately covers offers to settle in family law cases because it provides certain formalistic requirements, among other things. Notably for this case, it requires a signature of the party making the offer in order for it to comply and then engage, as well as the cost consequences of r. 18 if the matter proceeds to trial or other adjudication by the Court. This is an important policy feature designed to ensure that parties are shown directly what they are offering, and evidence their acceptance by their own signature. This intends to give an evidentiary basis to offers and prevent or limit the ability of parties to resile from them if they are accepted in the future.

[23] Rule 18 provides for automatic withdrawal of offers that are expressly time limited. This is important in family cases where the often never-ending changing landscape of files can cause parties to lose focus or recall of past actions, like offers made well in the past. The auto expiry of express time limited offers prevents a "gotcha" approach to litigation.

[24] Rule 18 also provides such offers may not be accepted orally. Again, this is an evidentiary safeguard in a field where parties often engage in highly emotional and stressful litigation and can "forget" things that happen or say things they may not really mean.

[25] However, r. 18 does not mandate that all offers to settle in family law cases are deemed to incorporate any particular aspects of r. 49 of the RCP.

[26] In my view, offers to settle are either Rule 18 compliant or they are not. The fact that an offer is not Rule 18 compliant does not invite a chaotic "wild west" situation with respect to offers particularly contained in the body of solicitor's letters. The Court of Appeal has addressed this issue in Scanlon.

[27] Even if it can be said that somehow r. 18 does not "cover a matter adequately", regard to the RCP is not engaged unless the court deems it appropriate. In my view, it is not appropriate to look to the RCP for this matter, for reasons which were discussed in Scanlon.

[28] In the Scanlon decision, the Court of Appeal was dealing with an offer to settle made in a family law case contained in a letter, which proclaimed itself to be a formal offer to settle made pursuant to r. 49 of the RCP. The letter was made prior to litigation being commenced. Ultimately, the Court of Appeal found that offers made before litigation is commenced cannot be Rule 49 offers because the rule expressly only applies to parties to a proceeding. No proceeding, no Rule 49 offer.

[29] In Scanlon, importantly for this case in my view, the Court of Appeal addressed the question of whether the provisions of r. 49, and specifically the "common law reversing" provisions of r. 49.07(2) were incorporated by reference in offer letters that invoked r. 49, but were otherwise non-Rule 49 compliant. The Court found the other provisions of r. 49 were not so incorporated. Further, the Court observed that the importing or implying of additional terms is not something the courts will do easily or cavalierly. At paras. 8 and 22 of Scanlon, the Court made clear that in a circumstance of an offer to which r. 49 did not apply, the common law rule prevailed which holds that a counter-offer destroys the power of the counter-offering party to later attempt to return to accept a prior offer to settle.

[30] In my view, this logic is consistent with the policy provisions expressed in r. 18. If the provisions of r. 18 do not apply to a family law offer, the common law does. There is nothing inappropriate or inequitable with parties being governed by common law principles which have certainly served this province well for many years.

[31] I am therefore persuaded by the primary submission of Ms. Dadgostar, that the making of the counter-offer by Dr. Shafiee destroyed his ability to later purport to accept the Letter Offer. I find there was no outstanding offer available by Ms. Dadgostar for Dr. Shafiee to accept by operation of the common law further to Dr. Shafiee's counter-offer of December 6, 2022. I find there is no genuine issue for trial concerning the Letter Offer. The Letter Offer was not available to be accepted on December 8, 2023.

[32] I am dismissing the claims for relief on this motion by Dr. Shafiee and granting summary judgment as requested by Ms. Dadgostar. In my view, I can reach a fair and just determination on the merits on this motion for summary judgment. The material on this motion has allowed me to make the necessary findings of fact, to apply the law to the facts, and to achieve a proportionate, more expeditious and less expensive means to a just result.

Additional Grounds for Summary Judgment

[33] There are other reasons why I am deciding to grant summary judgment to Ms. Dadgostar. On this motion, based on the material filed, I make the following findings:

a. the terms of the Letter Offer were implicitly time limited;

b. the terms of the Letter Offer were incomplete in so far as offering to settle all issues between the parties;

c. the correspondence subsequent to the making of the Letter Offer disclosed a clear intention by Ms. Dadgostar to withdraw the Letter Offer; and

d. Dr. Shafiee has attempted to impose new or additional terms less favourable to Ms. Dadgostar in purporting to accept the Letter Offer as final.

[34] I will now discuss these findings in turn.

The Letter Offer was time limited

[35] The structure of the Letter Offer leads me to the conclusion that it was only available to be accepted for a limited time. The seven different "deficiencies and issues" were barriers to settlement in Ms. Dadgostar's mind and were identified as preventing her from making an informed counter-offer, which is to say, she was actively considering what Dr. Shafiee had offered at the four-way meeting, decided against accepting it, and simply restated what she had offered at that meeting. In my view, it is clear this Letter Offer is therefore tentative at best, qualified, and time limited. The first sentence of the second page identifies Ms. Dadgostar's intention that the Letter Offer was time limited. It was described as a "current offer", which is a temporal reference. It implies availability for acceptance in the short term. It implies the offer terms could change if not immediately accepted. It was not expressed as being "final" which in my view, would give it a longer shelf life.

[36] The Letter Offer conveys the idea that if Dr. Shafiee wanted to avoid dealing or answering the "deficiencies and issues" Ms. Dadgostar identified after the four-way meeting, her offer was immediately available to be accepted. In my view, once a step got taken by Dr. Shafiee to deal with said "deficiencies and issues" and he did not immediately accept the terms of the Letter Offer, the Letter Offer expired. The immediacy was gone. The Letter Offer was no longer "current".

The Letter Offer was an incomplete offer

[37] I accept the evidence of Ms. Dadgostar on this motion that as of November 10, 2022, she was missing a number of key pieces of financial disclosure and valuation evidence. She did not have her own business valuation report. The income number for child and spousal support purposes in the Letter Offer appears to be based on Dr. Shafiee's average income of the four proceeding years. Ms. Dadgostar had a 2018 valuation that placed Dr. Shafiee's practice to be worth approximately 1.6 million dollars. Ultimately, Ms. Dadgostar obtained a valuation 3.4 million dollars higher based on 2021 financial statements. I accept her evidence that the values used for equalization purposes were inaccurate; the house value was 100% allocated to her with only 50% of the mortgage and line of credit which was secured against it, and treated as a deduction. I accept the value of the home at 2.7 million was high based on a further appraisal received as of June 2022 placing it at 1.4 million. There was also an issue of the notional disposition costs Dr. Shafiee used for his RRSPs.

[38] In my view, these deficiencies rest on Dr. Shafiee's failure to fully and fairly disclose the value of these assets as is the obligation of all family law litigants. This adds a degree of unfairness to his attempt in December 2023 to accept a year-old offer that was made with incomplete information.

[39] Also, the Letter Offer makes no express provision for the payment of child support. Counsel for Dr. Shafiee argued that a Divorcemate calculation of spousal support for October 2022 showed a low range of $12,130 and a mid range of $17,693 based on Dr. Shafiee's annual income of $861,585, with children being shared, and equated to reasonable support for the children of this marriage. Despite this able argument, I was not persuaded to "back into" this scenario as being proof that the amount Ms. Dadgostar proposed in the Letter Offer of $15,000 per month for spousal support made adequate provision for child support for the children of this marriage. On its face, the Letter Offer does not address child support period. It is trite law, that child support "belongs" to the children of a relationship. It cannot be so easily disregarded if such a proposal is to be taken as a full and final offer to resolve all material and outstanding matters between the parties.

[40] In my view, this was a further basis for declining to grant the relief requested by the moving party.

Ms. Dadgostar withdrew the offer before it was accepted

[41] I note that the counter-offer letter of November 10, 2022 contained a number of statements which I view as indicating Dr. Shafiee's understanding at the time (Fall 2022), which is completely inconsistent with his attempt to accept the Letter Offer in December 2023. The letter opens with the following:

Thank you for your letter dated November 10, 2022. It is somewhat disconcerting to hear you call the terms in the draft separation agreement my client's "position". Those terms were negotiated and agreed to at the meeting and then your client reneged. Nonetheless, it is important that your client's questions be addressed.

[42] I have already found that this letter was a counter-offer which by operation of common law destroyed Dr. Shafiee's ability to later accept the Letter Offer. If I am wrong in that analysis, relying on the finding of the Court in Owen-Lytle, this statement on behalf of Dr. Shafiee indicates that he was of the view that a deal was reached prior to the Letter Offer and that Ms. Dadgostar had resiled from that agreement. By then continuing to address the "deficiencies and issues", this is an explicit recognition that the Letter Offer was not available to be accepted at that point, or later, because the Letter Offer was extended expressly on the condition that Dr. Shafiee need not address the problems if he just accepted the Letter Offer then and there. However, he went on to address the concerns. In my view, this is an acceptance, or recognition, that the Letter Offer was withdrawn.

[43] The next letter exchanged was March 22, 2023, from Ms. Dadgostar's counsel. It opens with:

Prior to making a further offer to settle, we require the following documents regarding Dr. Shafiee Medical Professional Corporation:

[44] This is plain English. A person can only contemplate making a further offer if they have withdrawn a prior one. It is possible to have two concurrent either/or offers available in family litigation. However, that is not how the Letter Offer was structured.

[45] The letter continues to ask for disclosure and threatens a motion if it is not forthcoming. Based on this evidence, I find Ms. Dadgostar had withdrawn the Letter Offer by March 22, 2023.

[46] To the extent that Dr. Shafiee relies on the decision of Woodley J. in Owen-Lytle, I note the key statement of para. 25 of the judgment must be viewed in the context of the overall decision. Woodley J. was discussing the circumstances where an offer to settle may be implicitly withdrawn by a subsequent offer in writing that is less favourable to the opposing party. In that case, and in this case, the offers did not stand still. The proceeding went on. In Owen-Lytle, other correspondence passed between the parties which ultimately led Woodley J. not to enforce the attempt to accept an offer contained in a settlement brief that was not Rule 18 complaint. In my view, this is what also happened in the present case. The Letter Offer had been withdrawn by December 2023.

Dr. Shafiee accepted the Letter Offer and added additional terms

[47] In Cole v. Cole, 2011 ONSC 4794, Mesbur J. provided a useful analysis of the case law relating to determining whether or not a settlement had been reached, stating at para. 41:

41 What emerges from the cases is that each will be fact-driven, and turn on an interpretation of what the parties objective intentions were. I emphasize the notion of discerning objective intentions, because parties generally govern themselves in a self-serving fashion when the issue of enforceability arises, in order to bolster their respective positions as to whether a binding agreement has been formed or not.

[48] Acceptance of written offers in family law litigation, Rule 18 offer or not, still requires a meeting of the minds. It is not permissible to graft on new terms to a purported accepted offer without the consent of the originating party.

[49] In my view, aside from everything else on this motion, Dr. Shafiee is seeking to enforce something that was different than what was originally offered. He is attempting to obtain a summary judgment for his view of a settlement on terms as he only sees them. While Dr. Shafiee argues he has accepted the Letter Offer, his actions in doing so, indicate he was attempting to impose a more expansive settlement than what was contained within the four corners of the Letter Offer. In addition, Dr. Shafiee seeks a final order that is less favourable to Ms. Dadgostar than the terms contained in the Letter Offer.

[50] The letter of December 19, 2023, sent on behalf of Dr. Shafiee purporting to accept the Letter Offer, stated:

I will amend the draft separation agreement prepared on October 24, 2022 to reflect the final terms of settlement and will forward for your review and execution.

[51] To begin, it seems unusual for counsel to amend an agreement that is alleged to have contained all material terms of a final accepted offer. If the deal was the deal in October 2022, there should have been no need for amendment of the draft that allegedly tracked the terms of the deal. Further, Ms. Dadgostar states in her affidavit on this motion that she never saw the draft separation agreement until a signed copy was forwarded to her on March 6, 2024. It is not referenced in the Letter Offer. Dr. Shafiee's affidavit states:

After a full day, in person meeting at the office of Naghmeh's lawyer in Sault Ste. Marie on October 24, 2022, the terms agreed to at the meeting were put into a draft Separation Agreement. Naghmeh did not sign the draft Separation agreement that day as she wanted more time to consider the terms of the separation agreement. Exhibit "C" is the draft unsigned separation agreement based on my date of separation (May 3, 2018).

[52] Nowhere else in Dr. Shafiee's affidavit materials is it clarified who actually prepared the draft separation agreement or when or how it was brought to the attention of Ms. Dadgostar. This is an important lack of information if terms of an alleged existing agreement, not referenced in the Letter Offer, are sought to be incorporated in an order enforced by a summary judgment motion. I prefer Ms. Dadgostar's evidence on the topic of the origin of the agreement. She set out in her affidavit that she did not attend the full session of the all-day four-way meeting. She left at lunch. I accept she did not know about the existence of a draft separation agreement or its terms when the Letter Offer was sent.

[53] Further, there are what I find as material differences in the draft agreement of October 2022 and the "final" agreement tendered by Dr. Shafiee in March 2024.

[54] In para. 5.5 of the October 2022 draft, the following is included:

On this basis and the fact that a further 33 months [December 1, 2022 to August 1, 2025] of spousal support shall be paid by Mir to Naghmeh in the amount of $15,000 per month, deductible by Mir and upon which tax is payable by Naghmeh, at which time, spousal support fully and finally terminates forever, it is reasonable and appropriate that no monthly child support be payable.

[55] I note that the Letter Offer had spousal support payable until 2032.

[56] Paragraph 5.5 of the March 2024 draft contains different language which replaced the above 5.5 term. It reads:

On this basis and the fact that monthly spousal support shall be paid by Mir to Naghmeh in accordance with the terms set out in paragraph 6.2 below of this Agreement which shall be deductible by Mir and upon which tax is payable by Naghmeh, at which time, spousal support shall fully and finally terminate forever. On this basis it is reasonable and appropriate that no monthly child support be payable.

[57] Paragraph 6.2 of the March 2024 draft states:

Mir will pay to Naghmeh the sum of $15,000.00 per month in spousal support commencing December 1, 2022, until the youngest child has commenced post-secondary education. Following this, Mir will pay a sum of $10,000.00 per month in spousal support. Spousal support shall terminate after it has been paid for a total of 10 years. This amount is deductible from income for Mir and taxable to Naghmeh. This amount shall terminate immediately upon Naghmeh cohabiting with another adult person and/or marrying such person.

[58] In the March 2024 draft, Dr. Shafiee added a term where spousal support shall terminate immediately if Ms. Dadgostar cohabits or marries another person. This is a significant material change to the October 2022 draft which had a 2032 termination date. Additionally, this significant material change would adversely impact the children's right to child support as the draft operates to "include" child support in the quantum of spousal support. Re-partnering by Ms. Dadgostar might also be an event that a court might only look at as a material change requiring variation, rather than an absolute termination. In any event, Ms. Dadgostar did not agree to that term. I find it formed no part of the Letter Offer.

[59] The spousal support provisions are essential to the alleged accepted offer. The imposition of the "termination upon cohabitation" clause was not discussed in any way in the Letter Offer. If it was accepted, it would represent a significant concession on behalf of Ms. Dadgostar with no corresponding benefit.

[60] Also, in oral submissions, counsel for Dr. Shafiee advised that since separation, he has been making all the ongoing payments for the matrimonial home and the expenses of the children, among other payments. In submissions, counsel for Dr. Shafiee indicated that if the motion was granted, the Court or the parties would have to engage in a further reconciliation process.

[61] This submission further demonstrates Dr. Shafiee's belief that somehow it was available for him to utilize the Letter Offer and whatever else he determined was appropriate, to piggyback terms on an alleged outstanding offer, and to force litigation to solely end on his terms.

[62] In my view, there was no meeting of the minds in December 2023 or in March 2024 as to terms that both parties were prepared to agree on to fully settle all issues between them. This supports my earlier finding that there is no genuine issue for trial as there was no offer available to be accepted in December 2023.

Costs

[63] At the beginning of submissions on the motion, I asked the parties to give me a rough position as to what they would expect to pay the other side if they were not successful on the motion. I have used this practice for many years on long motions. I find counsel are much more reasonable about the ultimate quantum of costs when they are unsure of the result. In this case, counsel for Dr. Shafiee indicated costs in the range of $40,000 to $60,000 would be appropriate. I expect that number was generated by an expectation that Dr. Shafiee would be successful on this motion and the costs award for a summary judgment motion that finally disposed on the litigation would include costs for the entire matter. Counsel for Ms. Dadgostar, whose retainer was limited to arguing this motion, indicated her full indemnity costs were in the order of $26,000.

[64] This matter must get back on the rails. Further costs submissions in my view would unnecessarily delay the parties from refocusing their efforts on either settling the matter on mutually agreed terms or going to trial.

[65] In my view, a reasonable quantum of costs on a partial indemnity scale for a motion of this nature that took one day to argue and included lengthy affidavits and facta would be $15,000, inclusive of costs plus HST. Both counsel provided excellent and focused presentations to the Court which streamlined the matter.

Disposition and Directions

[66] For the reasons set out above, I find there is no genuine issue requiring a trial of the issue that Dr. Shafiee accepted a final offer from Ms. Dadgostar in December 2023. He did not accept such an offer. No offer from Ms. Dadgostar was available to accept in fact or at law. Dr. Shafiee's motion is dismissed with costs payable on a partial indemnity basis to Ms. Dadgostar in the amount of $15,000, plus HST.

[67] Further to the order of Rasaiah J. of January 7, 2025, the parties are ordered to set a case conference continuation before Rasaiah J. at Sault Ste. Marie in accordance with the local practice at that location.

The Hon. Mr. Justice F.B. Fitzpatrick

Date: August 12, 2025