] Plaintiff's counsel also relied upon Heath v. Heath, 2009 NLTD 71 (CanLII), [2009] N.J. No. 120, where the defendant applied to set aside a settlementagreement and signed consent order concerning the grant to the plaintiff of an easement over the defendant's property. There, the court found that there had been no formation of a clear and bindingsettlement agreement because there was no certainty regarding the description and location of the easement.
[74] In Heath at para. 34, the court also found the applicant had provided timely instructions to her solicitor not to take any further steps to confirm the settlement. Heath is of no assistance because here, Brian Gaida instructed Mr. Foisy not to communicate acceptance of the defendants' offer until he had received and agreed to the breakdown of the global settlement amount after he had authorized his former solicitor to accept the defendants' offer and Mr. Foisy had already communicated that acceptance to the defendants.
[75] In Srebut v. Srebut Farms Ltd., Chapnik J. of the Ontario Superior Court of Justice, citing Milios v. Zhagus (1998), 1998 CanLII 7119 (ON CA), 38 O.R. (3d) 218 (C.A.), held at paras. 71 and 72 that the Ontario Superior Court has "broad and complete discretion to determine whether to enforce settlement" under Rule 49.09 of the Ontario Rules of Civil Procedure, R.R.O. 1990, Reg. 194. Under that Rule, where a party to an accepted settlement offer fails to comply with its terms, the other party may apply to the court for judgment on the terms of the accepted offer. The court may either grant judgment or continue the proceedings as if there had been no accepted offer to settle. Under the Ontario jurisprudence, the court has a broad discretion to not enforce a settlement that is unreasonable, that would be unfair or would result in an injustice. Although the discretion under Rule 49.09 not to enforce a settlement is rarely exercised, the court in Srebut concluded at para. 84 that it should decline to enforce an unfair settlement.
[76] The British Columbia Supreme Court Civil Rulescontain no provision equivalent to Ontario Rule 49.09 conferring a broad jurisdiction on the court to refuse to enforce a settlement agreement.
[77] The legal principles applicable to the enforcement of settlement agreements in this Province are stated in the recent reasons for judgment of Mr. Justice Sewell in Roumanis v. Hill, 2013 BCSC 1047 (CanLII). There, the defendants applied to enforce settlement agreements in two medical negligence actions. Plaintiff's counsel agreed to settle each action in exchange for a waiver of costs and disbursements. Defence counsel sent consent dismissal orders to the plaintiff's lawyer, who signed them. The plaintiff then withdrew her consent to the settlement. The court found that the terms of the settlement offer were clear and unambiguous and that the parties had concluded a binding settlement agreement. The plaintiff contended that the court has an inherent jurisdiction to permit a party to withdraw its consent to a settlement where it is in the interests of justice to do so and the settlementis not yet perfected. In Roumanis, the settlement had not been perfected by entry of the consent dismissal orders.
[78] The court found that the plaintiff's solicitor had made the settlement with the knowledge of the client and on her express instructions. The plaintiff had initially agreed to the settlement but later changed her mind shortly after her lawyer had communicated her acceptance to defendants' counsel.
[79] The court reviewed the law in this Province, including the decision of the Court of Appeal in Moric v. Handspiker, 1985 CanLII 538 (BC CA), [1985] B.C.J. No. 1698, which rejected the argument that the court has a discretion to refuse to enforce a binding settlement made on the instructions of the client, and Robertson v. Walwyn Stodgell Cochrane Murray Ltd.,[1988] B.C.J. No. 485 (C.A.), where the Court held at para. 4:
In this case, it is not disputed that Mr. and Mrs. Robertson gave their lawyer instructions to make the settlement agreement that was made. The Robertsons' argument is that they received erroneous advice from their lawyer; that the advice induced them to make the settlement agreement; that the settlement agreement was unfair; and that the court should not enforce the settlement agreement. That argument depends on the view that the court, under s. 8 of the Law and Equity Act or otherwise, has power to refuse to give effect to a settlementagreement if the court considers that the settlementis not just. In my opinion, that view is wrong. A completed settlement agreement is the same as any other contract. If the contract is valid and enforceable by ordinary principles of contract law, and if it is put in issue in appropriate proceedings, then the court, in the end, must give effect to it. That was the point that governed the decision of this court in Moric v. Handspiker; Moric v. Yablonski (1985), 1985 CanLII 538 (BC CA), 65 B.C.L.R. 74.
[80] In Robertson at 388, the Court of Appeal held that where a settlement agreement is made with the knowledge and consent of the parties, and where there is no ground for setting aside the agreement under general contract principles, such as fraud, duress, lack of capacity or mutual mistake, the court has no alternative but to enforce the agreement.
Comments
Post a Comment