In Lozon v. Lozon, a dispute arose as to the enforceability of Minutes of Settlement entered into between family members to settle three lawsuits. The Court allowed the appeal and enforced the settlement, disagreeing with the trial judge that the settlement was ambiguous or did not apply to certain family members.

Other topics covered this week included a lawyer’s claim for outstanding fees, a foreign divorce judgment, appellant jurisdiction, dismissal for delay and a family law matter.

Wishing everyone a Happy Thanksgiving long weekend!

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Ines Ferreira
Blaney McMurtry LLP
416.593.2953 Email

Table of Contents

Civil Decisions

Lozon v. Lozon, 2023 ONCA 645

Keywords: Contracts, Interpretation, Civil Procedure, Minutes of Settlement, Enforcement, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, Olivieri v. Sherman, 2007 ONCA 491

Short Civil Decisions

Melville v. McLaren, 2023 ONCA 652

Keywords: Real Property, Civil Procedure, Appeals, Jurisdiction, Land Titles Act, R.S.O. 1990, c. L.5, ss. 27, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 110, CIBC Mortgages Inc. v. Computershare Trust Co. of Canada, 2015 ONCA 846

Cronier v. Cusack, 2023 ONCA 650

Keywords: Civil Procedure, Costs

Barn v. Dhillon, 2023 ONCA 654

Keywords: Family Law, Child Support, Extraordinary (Section 7) Expenses, Tax, Federal Child Support Guidelines, SOR/97-175,, ss. 7, Fielding v. Fielding, 2015 ONCA 901

Lumaj v. St. Michael’s Hospital, 2023 ONCA 651

Keywords: Civil Procedure, Dismissal for Delay, Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 7(5), Machado v. Ontario Hockey Association, 2019 ONCA 210

Taimish v. Al-Kadhimi, 2023 ONCA 661

Keywords: Family Law, Child Support, Family Law Act, R.S.O. 1990, c. F.3, ss.7

Verbeek v. Kooner, 2023 ONCA 660

Keywords: Contracts, Solicitor and Client, Retainer Agreements, Civil Procedure, Costs

CIVIL DECISIONS

Lozon v. Lozon, 2023 ONCA 645

[Gillese, Benotto and Copeland JJ.A.]

Counsel:

C. Patterson, for the appellant
P. S. Chandler, for the respondents (COA-22-CV-0332)
D. Kirwin, for the respondents (COA-22-CV-0364)

Keywords: Contracts, Interpretation, Civil Procedure, Minutes of Settlement, Enforcement, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, Olivieri v. Sherman, 2007 ONCA 491

facts:

SL, the appellant, is the son of the respondents GL and AL and brother of the respondent BL. The respondent, PL, was GL’s brother. The issues arise out of Minutes of Settlement the family members and a related corporation signed to settle three lawsuits.

The first lawsuit was brought by 1061154 Ontario Inc., a company owned by GL and AL, to obtain possession of a log cabin in which the appellant and his spouse were residing. This action also involved the appellant’s claim that his father was holding shares in the company in trust for him. The other two lawsuits were for damages for personal injury sustained in a physical altercation. The appellant sued GL, BL, AL, and PL for damages he allegedly  sustained when PL and BL beat him while GL held him down. BL and GL sued SL for damages that they allege they sustained in the same event.

In 2017, the parties attended a mediation, which was unsuccessful. During the mediation, a document was prepared listing certain equipment (the “2017 Mediation List”). In 2022, the parties to all three actions attended another mediation, which resulted in Minutes of Settlement (the “2022 Minutes”) being prepared. The 2022 Minutes were prepared and circulated to all counsel who approved them as drafted.

A dispute over the equipment resulted and related to a tractor and various snowmobiles. The tractor was identified as item 15 on the 2017 Mediation List. It was described as “International 1466” on the list. But the 2022 Minutes referenced item 15 as “1496” instead of “1466.” There was no tractor known as 1496 in the respondents’ possession. The respondents say that this created confusion, which means there was no agreement. The snowmobiles were referenced in item 26 of the 2017 Mediation List, which described five snowmobiles and a trailer. The 2022 Minutes excluded the “El Tigre” owned by the appellant’s mother. The appellant submitted that the 2022 Minutes included snowmobiles owned by BL. BL submitted that he was not a party to the 2017 Mediation, so the 2017 Mediation List could not apply to his property.

The appellant brought two motions seeking to have the 2022 Minutes enforced. The motion judge dismissed the motions, finding that there was a misunderstanding concerning what items were included in the 2022 Minutes. The issue in this appeal was the enforceability of the Minutes of Settlement.

issues:

Did the motion judge err in dismissing the two motions?

holding:

Appeal allowed.

reasoning:

Yes.

The Court established that a “determination as to whether a concluded agreement exists does not depend on an inquiry into the actual state of mind of one of the parties or on the parole evidence of one party’s subjective intention” but rather on “an objective reading of the language chosen by the parties to reflect their agreement”: Olivieri at para 44. To decide whether an agreement was reached based on the subjective intent of one side of the bargain is “an error in principle”: Olivier at para 55.

The Court noted that the principles of contractual interpretation require the court to read the contract as a whole, giving the words their ordinary and grammatical meaning consistent with the surrounding circumstances at the time the contract was formed. The court is not to consider the subjective intentions of the parties. The interpretive process should consist only of objective evidence of the background facts at the time of the execution of the contract: Sattva at paras 57-59. The Court concluded that the motion judge erred in principle by basing his decision on the evidence of the subjective intentions of the respondents.

With respect to the tractor, it was clear to an objective reader that there was a minor typographical error. The 2017 Mediation List referred to model 1466 – the correct model. The 2022 Minutes referred to 1496. There was no 1496. GL’s statement that he relied on the number 1496 made no sense. Accepting GL’s statement would have led to an absurd result, and the motion judge was wrong to rely on his evidence. The Court concluded the appellant was entitled to International Tractor model 1466.

The snowmobiles were listed as a group. The appellant was to have five snowmobiles. BL contended that, because he was not a party to the 2017 Mediation, he did not need to hand over the snowmobiles and the trailer. The Court disagreed, stating that the 2022 Minutes incorporated the 2017 Mediation List by reference, and it was agreed to by all parties. The appellant was entitled to choose the snowmobiles from among those owned by the respondents except for “El Tigre,” which was excluded.

SHORT CIVIL DECISIONS

Melville v. McLaren, 2023 ONCA 652

[Pepall, van Rensburg and Monahan JJ.A.]

Counsel:

N.D. Malen, for the appellants

T.D. Hill and K.F. Shedden, for the respondents

Keywords: Real Property, Civil Procedure, Appeals, Jurisdiction, Land Titles Act, R.S.O. 1990, c. L.5, ss. 27, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 110, CIBC Mortgages Inc. v. Computershare Trust Co. of Canada, 2015 ONCA 846

Cronier v. Cusack, 2023 ONCA 650

[Paciocco, Harvison Young and Thorburn JJ.A.]

Counsel:

P.L.W.C, acting in person

C.C, acting in person

Keywords: Civil Procedure, Costs

Barn v. Dhillon, 2023 ONCA 654

[Huscroft, Miller and Paciocco JJ.A.]

Counsel:

Bakaity, for the appellants

Buttigieg, for the respondents

Keywords: Family Law, Child Support, Extraordinary (Section 7) Expenses, Tax, Federal Child Support Guidelines, SOR/97-175,, ss. 7, Fielding v. Fielding, 2015 ONCA 901

Lumaj v. St. Michael’s Hospital, 2023 ONCA 651

[Pepall, van Rensburg and Monahan JJ.A.]

Counsel:

D.L. and L.L. acting in person

Goudarzi-Malayeri, for the respondent St. Michael’s Hospital

Ronan and Z. Vaid, for the respondent Dr. Sargeant

Keywords: Civil Procedure, Dismissal for Delay, Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 7(5), Machado v. Ontario Hockey Association, 2019 ONCA 210

Taimish v. Al-Kadhimi, 2023 ONCA 661

[Doherty, Brown and George JJ.A.]

Counsel:

M.J. Stangarone and M. Mansoor, for the appellant

J.D. Singer, for the respondent

Keywords: Family Law, Child Support, Family Law Act, R.S.O. 1990, c. F.3, ss.7

Verbeek v. Kooner, 2023 ONCA 660

[Doherty, Brown and George JJ.A.]

Counsel:

G.S. Chandok, for the appellant

M.I. Rotman and Y. Jaimangal, for the respondent

Keywords: Contracts, Solicitor and Client, Retainer Agreements, Civil Procedure, Costs

The information contained in our summaries of the decisions is not intended to provide legal advice and does not necessarily cover every matter raised in a decision. For complete information or for specific advice, please read the decision or contact us.