Plant Get Enough Inc. v. Odd Burgers Franchise Inc., 2026 ONSC 3912

CITATION: Plant Get Enough Inc. v. Odd Burgers Franchise Inc., 2026 ONSC 3912

COURT FILE NO.: CV-26-00000208-0000

DATE: 20260703

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Plant Get Enough Inc., Jay Gandhi and Joanna Gandhi, Applicants

-and-

Odd Burger Franchise Inc., James McInnes and Vasiliki McInnes aka Lia McInnes, Respondents

BEFORE: Justice Spencer Nicholson

COUNSEL: L. Bellisario for the Applicants

J. McInnes Self-represented Respondent

HEARD: March 13, 2026

DECISION ON MOTION

NICHOLSON J.:

[1] The Applicants move to enforce a settlement between the parties.

Background:

[2] Odd Burger is an Ontario Corporation carrying on the business of a franchisor of a vegan fast-food restaurant chain. James and Vasiliki McInnes are the directors and officers of Odd Burger.

[3] Plant Get Enough Inc. is a former franchisee of the Odd Burger franchise system. Jay and Joanne Gandhi are the principals of Plant Get Enough.

[4] Plant Get Enough was operating an Odd Burger restaurant located in Calgary, Alberta pursuant to a franchise agreement between the Applicants and Odd Burger.

[5] A dispute ensued between the Applicants and Odd Burger. The Applicants ceased operating the business and commenced an arbitration against the Respondents. Among the issues in dispute were alleged misrepresentations on the part of Odd Burger prior to the execution of the Franchise Agreement.

[6] In February of 2025, the parties agreed to proceed by way of arbitration and retained an arbitrator based in London, Ontario. The arbitration hearing was scheduled for December 2025.

[7] At that time, I note that both sides of the dispute had legal counsel representing their interests. Counsel for the Applicants was Mr. Idan Erez and counsel for the Respondents was Mr. James Plotkin.

[8] From approximately August 12, 2025, onward, counsel worked to negotiate a settlement to avoid the arbitration. Their various correspondences are produced in the record on this motion. Counsel both presented professionally to one another, and appeared to have a good working relationship by the tone of the communications passing between them. They also advocated their respective clients’ positions appropriately.

[9] After exchanging several proposals, on October 27, 2025, the Respondents offered to settle the arbitration on the following terms:

(a) The Respondents would pay the Applicants the all-inclusive amount of $200,000 in the form of five sequential payments of $40,000;

(b) The Respondents would consent to judgment to be held in escrow if the payments were not made, and, in the event of default, an application could be brought in the Ontario Superior Court of Justice in which the Consent to Judgment may be taken out and that application would proceed on an unopposed basis;

(c) The consent to judgment would be in the amount of $200,000, including post-judgment interests and costs;

(d) There would be a seven day period by which the Respondents could cure any default under the settlement agreement; and

(e) The parties would release each other from their respective claims and formalize the settlement in the form of a written settlement agreement.

[10] I note from a review of the correspondence leading up to this offer, that the basic framework for a deal was on the table early on, with the remaining sticking point being the amount to be paid by the Respondents. Thus, the October 27, 2025, offer states as follows:

“Hi Idan,

As promised, I spoke with my clients.

They are willing to resolve the matter as follows:

• • Payment of $200,000 all-in over five quarters.

• • Other terms per your Sept. 1 email below (Tutor Times release etc.)

Looking forward to hearing from you.

James”

[11] On October 28, 2025, the Applicants purported to accept this offer by email. The Applicants’ response, through Mr. Erez, was as follows:

“Good news, James—we have a deal, subject to mutual agreement on the settlement document.

I suggest that I take the pen on that, but let me know if you take a different view.

Thanks for your efforts on this.”

[12] Between October 31, 2025, and December 7, 2025, the lawyers exchanged drafts of the settlement agreement via email and discussed terms of the agreement via telephone.

[13] On December 8, 2025, Mr. Plotkin for the Respondents emailed Mr. Erez for the Applicants an updated draft of the proposed settlement agreement, stating “[i]f all is in order, I will accept all changes on my end and sent to my clients to execute”.

[14] Later that same day, Mr. Erez responded that the Applicants were agreeable to the form of settlement agreement and “we can have our respective clients execute a clean copy of the draft you sent”.

[15] The Arbitrator was then emailed by Mr. Erez to inform him that the dispute had been resolved. The Arbitrator confirmed by responding email.

[16] On December 9, 2026, Mr. Erez emailed Mr. Plotkin a copy of the signed Settlement Agreement. Mr. Plotkin acknowledged receipt of the partially signed Settlement Agreement via email, stating, “I will get you our signed version ASAP”.

[17] Despite many follow up emails, Mr. Plotkin did not deliver an executed Settlement Agreement to Mr. Erez. Finally, on January 5, 2026, Mr. Plotkin advised Mr. Erez that Mr. McInnes was now representing himself and the other Franchisor Parties.

[18] The Settlement Agreement included a payment schedule for each payment of $40,000. The first payment was due on February 2, 2026. It was not paid.

[19] The Settlement Agreement contained a consent to application and judgment clause, permitting the Applicant to move unopposed for judgment.

[20] The Settlement Agreement also included a clause, relied upon by the Respondents, that states as follows:

4.2 This Settlement Agreement will not be binding on any of the Parties unless signed by all of the other Parties, provided however, that it may be executed in one or more counterparts, and each such counterpart, upon execution and delivery, will be considered to be a complete original. All counterparts taken together will constitute one and the same instrument.

[21] The Settlement Agreement has not been signed by the Respondents and no payments had been made by the time that this matter was argued.

Position of the Parties:

[22] The Applicants take the position that a binding settlement agreement was reached and the failure of the document to be executed by the Respondents is of no legal significance.

22The Respondent, ably for a self-represented litigant, argues that the October 27 and 28, 2025, offer and acceptance was clearly contingent upon a mutually acceptable settlement agreement being signed. He argues that as he did not sign the Settlement Agreement, in accordance with the terms of the settlement agreement, there is no settlement.

[23] The Respondent further argues that he was expecting certain financing that would allow him to fund this settlement but that financing fell through. He does not, however, depose in his affidavit that he placed any limitations on his lawyer in negotiating the settlement.

Legal Analysis:

[24] The Respondents are incorrect.

[25] While I agree that an agreement to agree is not necessarily enforceable, I disagree that the parties did not reach a binding agreement in this case. Even if the Settlement Agreement itself is not binding because it was not signed, the settlement that was agreed to is binding.

[26] In my view, this case was settled by the October 27 and 28 offer and acceptance, and I hold that view that this is the case irrespective of whether any subsequent Settlement Agreement was agreed upon. However, in any event, counsel for each party did agree on the Settlement Agreement and that agreement is binding upon the Respondents. I find that all of the essential terms of the settlement were agreed upon as of October 28, 2025.

[27] I find that the precise timing of the payments is not an essential term of the settlement, other than it was to be made over five quarterly instalments.

[28] This case is governed by the law as set out in Olivieri v. Sherman, 2007 ONCA 491. A settlement is binding even if the form of release is not settled unless the agreement provides otherwise. As described by Gillese J.A., at paras. 41 and 50:

41A settlement agreement is a contract. Thus, it is subject to the general law of contract regarding offer and acceptance. For a concluded contract to exist, the court must find that the parties: (1) had a mutual intention to create a legally binding contract; and (2) reached agreement on all of the essential terms of the settlement: Bawitko Investments Ltd. v. Kernels Popcorn Ltd., 1991 CanLII 2734 (ON CA), [1991] O.J. No. 495, 79 D.L.R. (4^th 97 (C.A.), at pp. 103-04 D.L.R.

50The policy of the courts is to encourage the settlement of litigation: Stonehocker v. King, [1993] O.J. No. 2653, 43 A.C.W.S. (3d) 735 (Gen. Div.). The courts “should not be too astute to hold” that there is not the requisite degree of certainty in any of an agreement’s essential terms: Canada Square Corp. v. Versafood Services Ltd. (1982), 1981 CanLII 1893 (ON CA), 34 O.R. (2d) 250, [1981] O.J. No. 3125 (C.A.).

[29] The Ontario Court of Appeal repeated that an agreement is binding if the parties consider that it contains all essential terms, even if the parties also agree that those terms will subsequently be recorded in a more formal document together with the usual terms ancillary to that type of agreement in Ward v. Ward (2011), 104 O.R. (3d) 178, 2011 ONCA 178, at para. 53.

[30] In EVS (Edge Value Solutions) Canada Ltd. v. Nestle Canada Inc., 2022 ONSC 7003, at paras. 29-31, Penny J. rejected the argument that an agreement required to be in writing trumped the legal policy of holding parties to their manifest intention, viewed objectively, to adopt an agreement regardless of whether it is in writing or signed. Here, I find that the cancellation of the arbitration, with the concurrence of the Respondents’ counsel, is objective evidence of a binding agreement. I do not find the Applicants’ demands for an executed Settlement Agreement to establish that the Applicants did not believe that there was a binding agreement.

[31] A lawyer has ostensible authority to affect a binding settlement on behalf of his or her client. Unless the opposing side has knowledge of some limitation on the solicitor’s retainer, any settlement made by a lawyer will be binding on the client, regardless of any dispute between lawyer and her own client as to the scope of the lawyer’s instructions (see: Scherer v. Paletta, 1966 CanLII 286 (ON CA), [1966], 2 O.R. 524 and Srajeldin v. Ramsumeer, 2015 ONSC 6697, at para. 21). Again, in this case, the Respondents do not depose that there was any such limitation or instruction to their counsel.

[32] I reject the Respondents’ argument that the proposed settlement contemplated that payment obligations would begin once the Respondents obtained sufficient liquidity. There is no evidence that that was ever discussed between the lawyers and was not required to be an essential term of the agreement. Had that stipulation been included in the communications between the counsel, the argument would have merit. No such limitation was communicated by counsel for the Respondents. If such a stipulation was desired, it had to be communicated.

[33] Whether it be pursuant to the terms of the actual Settlement Agreement, admittedly unsigned, or simply because the parties agreed to all the essential terms of the settlement agreement, the Applicants are entitled to judgment in the amount of $200,000.

[34] If the Respondents’ position were correct at law, the administration of justice could simply not function as parties would be free to not follow through on their commitments, as made by their chosen counsel.

Costs:

[35] The Applicants are presumptively entitled to their costs of this proceeding. I strongly urge the parties to agree to a reasonable figure for costs. However, if the parties cannot agree on the quantum of costs, the Applicants may serve and file written submissions, not to exceed two pages in length double spaced, plus any offers to settle, by no later than July 27, 2026. The Respondents may serve and file responding costs submissions, not to exceed two pages double spaced, by August 7, 2026.

[36] Costs submissions may be sent to my attention through my assistant, Nadine Long at LondonSCJAdminTeam@ontario.ca.