



COURT OF APPEAL FOR ONTARIO

CITATION:
    Risalsdar v. Ali, 2014 ONCA 59

DATE: 20140123

DOCKET: C57418

Hoy A.C.J.O., Cronk and Epstein JJ.A.

BETWEEN

Jamil Risalsdar, Sajid Kazi and Altaf Qazi

Applicants (Respondents)

and

Muhammed Naeem Ali and Sabaa Yasmine Shaikh

Respondents (Appellants)

Amandeep S. Dhillon, for the appellants

David A. Seed, for the respondents

Heard and released orally: January 17, 2014

On appeal from the judgment of Justice John Murray of the
    Superior Court of Justice, dated July 2, 2013.

ENDORSEMENT

[1]

The respondents are judgment creditors of the appellants.  By order
    dated July 2, 2013, on application by the respondents, the application judge
    set aside a settlement agreement entered into by the parties on the ground that
    it was obtained by misrepresentation and, hence, was unenforceable.  He also
    ordered that certain funds now held in trust by the appellant Sabaa Shaikhs
    real estate solicitor be released to the respondents to the extent necessary to
    satisfy their outstanding judgments against the appellants. He therefore also
    dismissed a cross-application brought by the appellants to enforce the
    settlement agreement.

[2]

The appellants appeal from the application judges ruling.

[3]

The appellants advance three main arguments in support of their appeal. 
    First, they submit that the application judge erred by making key factual
    findings that are not supported by the evidentiary record.  In particular, they
    say that the application judge erred by finding that: (1) they induced the
    respondents to enter into an agreement to settle their claims against the
    appellants by way of misrepresentations regarding the appellants financial
    affairs; and (2) the misrepresentations in question were relied upon by the
    respondents in concluding the agreement.

[4]

We would not give effect to this ground of appeal.

[5]

The application judge found that, notwithstanding the respondents
    contention to the contrary, the parties entered into an agreement to settle the
    respondents claims against the appellants.  He also found, however, that the
    respondents were induced to enter into the settlement agreement by the
    appellants intentional misrepresentations concerning their ability to pay the
    outstanding amounts owed under the two judgments and, further, that the
    respondents relied on those misrepresentations, to their detriment.

[6]

There was ample evidence before the application judge to support these
    findings.  The record established that, in late May 2012, a solicitor who acted
    for at least the appellant Muhammed Ali and who was in communication with the
    appellant Sabaa Shaikh, informed a lawyer who was attempting to collect on the
    debts owed to the respondents that:

(1)

the
    appellants do not have any further ability to raise funds; and

(2)

Mr. Ali
    believed that, at best, he would be able to get $1,000 - $2,000 from [the
    appellant Sabaa Shaikh].

[7]

Following these statements, the lawyer who was attempting to recover the
    respondents funds submitted a settlement offer to Mr. Alis solicitor.  It is
    that offer that formed the basis of the settlement later sought to be enforced
    by the appellants.

[8]

However, there was evidence that when the statements quoted above were
    made, and unbeknownst to the respondents, Ms. Shaikh had agreed to sell the
    appellants former matrimonial home, against which the respondents had
    registered executions, and that the transaction was scheduled to close within
    days.  Further, the anticipated proceeds of sale were sufficient to pay the
    outstanding monies owed to the respondents.

[9]

In these circumstances, the application judge was fully justified in
    setting aside the settlement agreement on the basis of material
    misrepresentations.  The appellants have failed to demonstrate that the
    application judges impugned findings are tainted by palpable and overriding error. 
    Accordingly, there is no basis for appellate intervention with these findings.

[10]

The
    appellants next argue that the application judge erred by failing to convert
    the competing applications before him into a trial of an issue to determine the
    enforceability of the settlement agreement.  We disagree.

[11]

At
    no time did the appellants seek an order from the application judge for the
    trial of an issue.  Nor, in light of the written record before the application
    judge, was a trial required to resolve the question whether a binding and
    enforceable settlement agreement had been entered into.  The appellants
    essentially acknowledged as much in their cross-application when they sought,
    as primary relief, a declaration that an enforceable settlement agreement had
    been entered into by the parties and orders compelling its enforcement.  The
    application judges findings regarding the existence of an enforceable
    settlement agreement responded in part to the issues raised in the appellants
    own cross-application.

[12]

Finally,
    the appellants submit that the trial judge erred by failing to provide any or
    sufficient reasons for his ruling.  We reject this argument.

[13]

The
    application judge provided oral reasons for the core of his decision and
    supplemented those reasons with a short written endorsement.  He also inquired
    of counsel whether any of the parties wished him to reserve his decision in
    order to deliver lengthier, written reasons.  None of the parties requested
    that he do so.

[14]

Although
    the application judges reasons are expressed in brief compass, when viewed in
    light of the entire record, as they must be, they meet the standard for
    sufficiency of reasons set out in
R. v. Sheppard
, 2002 SCC 26, [2002]
    1 S.C.R. 869.

[15]

The
    appeal is dismissed.  The respondents are entitled to their costs of the appeal,
    fixed in the total amount of $11,400, inclusive of disbursements and all
    applicable taxes.

Alexandra Hoy
    A.C.J.O.

E.A. Cronk
    J.A.

Gloria Epstein
    J.A.


