



COURT
    OF APPEAL FOR ONTARIO

CITATION: Bennett v. Bennett, 2019 ONCA 772

DATE: 20190930

DOCKET: C65764

Huscroft, Paciocco and Nordheimer
    JJ.A.

BETWEEN

Gary A.
    Bennett

Applicant (Respondent on Appeal)

and

Dawn M.
    Bennett, Grace Bennett, Roy Bennett, Karen Bennett, Mississauga Law Chambers
    Inc., Bennett Law Management Inc. and Bennett Law Chambers Professional
    Corporation

Respondents (Appellants on Appeal)

Micheal Simaan, for the appellants

Mark A. Ross and Sarah Walker, for the
    respondent

Heard and released orally: September
    27, 2019

On appeal from the order of Justice Lucy
    McSweeney of the Superior Court of Justice, dated July 20, 2018 with reasons
    reported at 2018 ONSC 4318.

REASONS FOR DECISION

[1]

The appellants appeal from the judgment granted
    by the application judge that enforced a term of Minutes of Settlement entered
    into between the parties.

[2]

The Minutes of Settlement dealt with various
    proceedings that were outstanding between the parties, all of which arose out
    of a failed business arrangement between the parties. The business arrangement,
    in turn, arose of a failed law practice shared between the principals Gary and
    Dawn Bennett.  Gary and Dawn are siblings.  Roy and Grace are their parents and
    Karen is another sibling.

[3]

Two principal issues are raised by the
    appellants.  One is that the application judge erred in refusing to grant them
    an adjournment of the hearing of the application. The other is that the
    application judge erred in concluding that paragraph one of the Minutes of
    Settlement was a separate enforceable term. The appellants contend that the
    Minutes of Settlement must be read as a whole and that the respondent is not
    entitled to enforce one term of the Minutes of Settlement when he is
    (allegedly) in breach of other terms.

[4]

We do not accept either of the appellants
    arguments. It is a matter of discretion for the presiding judge to decide
    whether or not to grant an adjournment requested by a party:
Toronto-Dominion
    Bank v. Hylton
, 2010 ONCA 752 at para. 36. In this case, the issue of
    whether the respondent was entitled to enforce paragraph one of the Minutes of
    Settlement was a separate threshold issue, a fact acknowledged by counsel for
    Dawn. It was within the purview of the application judge to conclude, given
    that fact, that an adjournment for the purpose of filing material was
    unnecessary in order to properly determine that threshold issue.

[5]

In terms of the decision on the merits, we agree
    with the application judge that paragraph one of the Minutes of Settlement was
    a separate enforceable obligation that did not depend on other issues that may
    have arisen between the parties.  The Minutes of Settlement expressly provided
    that the sum in question would be paid by the appellants to the respondents
    lawyer in trust by a set date. Those monies were then to be released to the
    respondent once he transferred certain shares, which he did. The Minutes of
    Settlement expressly contemplated the respondent being able to separately
    enforce that obligation. The fact that the appellants contend that the
    respondent owes them other amounts does not impact on the appellants
    obligation to make the payment required by paragraph one.

[6]

That said, in reaching our conclusion, we wish
    to make it clear that we are not expressing any views on the application
    judges analysis regarding equitable set-off nor with respect to her conclusion
    regarding the impact on a claim being made for equitable set-off in the absence
    of any counterclaim by the appellants.  Even if equitable set-off could be
    properly raised, in the factual circumstances of this case, it would be
    inequitable to deny payment of the separate obligation for which the parties
    contracted.

[7]

The appeal is dismissed.  The respondent is entitled
    to his costs of the appeal fixed in the amount of $
10,000
, inclusive of disbursements and HST.


Grant Huscroft J.A.

David M. Paciocco J.A.

I.V.B. Nordheimer J.A.



