



COURT OF APPEAL FOR ONTARIO

CITATION: Huma v. Mississauga Hospital, 2020
    ONCA 644

DATE: 20201016

DOCKET: C67510

Rouleau, Miller and Zarnett
    JJ.A.

BETWEEN

Ioan Huma,
    Elena Huma and Cristine Huma

Plaintiffs
(Appellants)

and

Mississauga Hospital and
    Queensway Health Centre (Trillium Health Partners), Etobicoke General Hospital
    (William Osler Health System), Dr. Gregory Sue-A-Quan, Dr. Alan L. Shievitz,
    Dr. Derek Pereira, Dr. Dana Wilson, Dr. Robert J. McBroom, Dr. Mahin Baqi, Dr. Krystyna
    Ostrowska, Dr. Sumontra Chakrabarti, Dr. Ilse Lange-Mechelen, Dr.
    Chikkahanumaiah Devaraj, Dr. Melanie Spring, Dr. Bhavpreet Dham, Dr. Eduard
    Bercovici, Dr. Eric George Duncan, and John and Jane Doe (representing a number
    of physicians, health care professionals and/or hospital employees involved in
    the care and treatment of Ioan Huma at Queensway Health Centre (Trillium Health
    Partners), Mississauga Hospital and Etobicoke General Hospital (William Osler
    Health System) from June 14, 2014 to September 30, 2014

Defendants
(Respondents)

Ronald P. Bohm and David Scott Lee, for
    the appellants

Chris Kinnear Hunter, for the
    respondent physicians

Henry Ngan and Ben Shakinovsky, for the
    respondent hospitals

Heard: in writing

On
    appeal from the order of Justice Lorne Sossin of the Superior Court of Justice,
    dated September 3, 2019, with reasons reported at 2019 ONSC 5115.

REASONS FOR DECISION

INTRODUCTION

[1]

The appellants appeal an order granting the respondents
    motion to enforce a settlement under r. 49.09 of the
Rules of Civil
    Procedure
, R.R.O. 1990, Reg. 194. For the reasons that follow, we dismiss
    the appeal. The motion judge did not err in finding a legally binding
    settlement agreement, or in refusing to exercise his discretion against its
    enforcement.

BACKGROUND

[2]

In June 2016, the appellants, Ioan Huma, Elena
    Huma, and Cristine Huma, commenced a medical malpractice action against
    fourteen physicians and two hospitals. The appellants alleged that as a result
    of professional wrongdoing by the respondents, including misdiagnosis and lack
    of timely and proper treatment, Ioan Huma suffered significant injuries
    including the loss of lower limb function and other impairments. Substantial damages
    were claimed on behalf of Ioan Huma. Elena Huma (Ioan Humas spouse) and
    Cristine Huma (his daughter) advanced claims under the
Family Law Act
,
    R.S.O. 1990, c. F.3.

[3]

Although the appellants had legal assistance in
    preparing their statement of claim, the lawyer who provided that assistance
    would not go on the record. The statement of claim indicated that the
    appellants were self-represented.

[4]

In April 2017, the respondent hospitals
    delivered a statement of defence and crossclaim. In March 2018, the respondent
    physicians delivered a statement of defence and crossclaim.

[5]

By the spring of 2018, the lawyer who had been
    assisting the appellants ceased to do so. By that time, counsel for the
    respondents had made several inquiries of the appellants as to their intentions
    to pursue the matter which had gone unanswered.

[6]

On May 6, 2018, Elena Huma contacted counsel for
    the respondent physicians and asked for time for the appellants to consider
    their options. The next day, counsel for the respondent physicians advised Ms.
    Huma that, among other things, he would be moving to obtain a court ordered
    timetable to govern the action. He also asked if the appellants were prepared
    to dismiss the action on a without costs basis and stated that his clients
    would likely agree to a without costs dismissal in exchange for a release.

[7]

On May 18, 2018, Elena Huma composed and sent an
    email to counsel for the physicians and counsel for the hospitals (the May 18
    Email). It read as follows:

Dear Mr. MacLeod and Mr. Morris,

We are sending this email to you to inform you
    that we decided to dismiss this action (court file CV-16-554699), against all
    defendant doctors and hospitals, on a without costs basis.

We are sending a letter to both your offices
    with our signatures to state the above.

Please send us confirmation that this case
    will be dismissed without any cost to us, and send us the court form. If we
    need to make any further steps to complete this matter, please let us know.

Sincerely,

Ioan Huma

Elena Huma

Cristine Huma

[8]

Counsel for the respondent physicians replied by
    email the same day confirming that his clients agreed to the dismissal without
    costs in exchange for releases from you. The email indicated that the
    documentation for signature would be forwarded. On May 22, 2018, counsel for
    the hospitals sent an email to the appellants, also confirming agreement to the
    dismissal without costs in exchange for a release, and providing a proposed
    form of release in favour of the hospitals. On May 24, 2018, counsel for the physicians
    sent the appellants a form of release in favour of the physicians, and a
    consent and draft order to dismiss the action without costs, with a request
    that they be signed and returned.

[9]

Ultimately, the appellants refused to proceed
    with the settlement. They consulted with and retained counsel and indicated
    that they wished to proceed with the action. The respondents then moved, under
    r. 49.09 of the
Rules of Civil Procedure
, to enforce the settlement.

THE MOTION JUDGES DECISION

[10]

The parties do not quarrel with the motion judges
    overall approach to the r. 49.09 motion, which was to consider two questions: (i)
    whether a binding agreement to settle was reached, and (ii) whether he should
    nonetheless refuse to enforce the settlement.

[11]

On the first question, the motion judge found
    that, by the May 18 Email and the surrounding correspondence, the parties had
    reached a binding agreement on the essential terms of a settlement, namely,
    that the action would be dismissed and that there would be no costs. To the
    extent that the releases proffered by the respondents introduced additional
    terms, such as confidentiality and an acknowledgment or waiver of independent
    legal advice, these were not essential terms; they were simply matters of
    implementation that did not form part of the settlement.

[12]

On the second question, the motion judge recognized
    that he had a discretion to refuse to enforce the settlement, but applying the
    test in
Milios v. Zagas
(1998), 38 O.R. (3d) 218 (C.A.), he declined
    to do so. He found that the settlement was not unconscionable.

THE GROUNDS OF APPEAL

[13]

On appeal, the appellants advance two basic
    arguments.

[14]

First, they argue that the motion judge erred in
    finding an enforceable agreement to settle, in light of the evidence of Elena
    Huma that she sent the May 18 Email without authority from the other
    appellants. They argue that the motion judge should have accepted that Elena
    Huma believed she was only taking an exploratory step toward settlement subject
    to the other appellants approval, which was not given. Accordingly, they say
    that the requisite intention to create a legally binding contract was absent.
    The appellants also refer to the inclusion, in the releases, of terms that had
    not been discussed as a further indication that no binding agreement had been
    reached.

[15]

Second, the appellants argue that the motion
    judge erred by not exercising his discretion, in the interests of justice, to decline
    to enforce the settlement. They maintain that he failed to consider important
    factors in his unconscionability analysis, such as the relative prejudice to
    the parties; that the appellants were self-represented at the relevant time; that
    Ioan Huma did not authorize the settlement; and that the action was not shown
    to be without merit. It would be grossly unfair, and thus unconscionable, to
    hold them to the terms of the settlement.

ANALYSIS

[16]

We do not accept the appellants arguments.

[17]

On the question of whether a binding settlement agreement
    was reached, the unexpressed views of Elena Humathat she thought she was
    taking an exploratory stepare properly ignored. The conduct of the parties,
    including the language they used, is viewed objectively in order to determine
    whether a contract has been made
:
Olivieri v. Sherman
, 2007
    ONCA 491, 86 O.R. (3d) 778, at para. 44.

[18]

The motion judge considered whether the words
    used in the emails, viewed objectively, manifested agreement on the essential
    terms of a settlement, as opposed to a situation where the parties were engaged
    in continuing negotiation. The May 18 Email proposed two essential but
    straightforward terms of settlementthe action was to be dismissed, and no
    costs were to be sought. The respondents accepted those terms.

[19]

Although the respondents, in accepting, each introduced
    a request for a release, that was not, in and of itself, the introduction of a new
    term inconsistent with the existence of a settlement agreement. Settlement
    implies a promise to furnish a release unless there is a contractual agreement
    to the contrary
: Hodaie v. RBC Dominion Securities
,

2011 ONSC
    6881, at para. 18, affd 2012 ONCA 796; see also

Kuo v. Kuo
,
    2017 BCCA 245, at para. 38.

[20]

Where a settlement has been agreed to, the
    implied obligation to furnish a release is to provide one that does not go
    beyond the terms to which the parties have agreed:
Hodaie
, at para.
    19. The releases proffered by the respondents each introduced terms beyond what
    would be strictly necessary to end the claims in the action on a without costs
    basis, which was the essence of the settlement. The hospitals proposed release
    included an acknowledgment or waiver of independent legal advice and an
    undertaking to keep the terms of the settlement confidential. The physicians proposed
    release also included a term of confidentiality and extended not only to the
    claims in the action, but to all claims up to the time of the release.

[21]

Nevertheless, the proffering of overly broad
    releases does not negate the existence of a settlement, where there is no
    evidence that the settlement agreement was conditional on the respondents
    obtaining a release with those and only those proposed provisions:
Hodaie
,
    at para. 18. Nor does a party proffering an overly broad release repudiate an
    existing settlement unless, after discussion, the party  refuses to proceed
    without it being signed:
Kuo
, at para. 41.

[22]

In this case, the motion judge concluded that the
    overly broad releases were not part of the parties settlement. The agreement
    on the essential termsdismissal of the action without costsremained binding.

[23]

As for the appellants argument that no
    contract was made because Elena Huma lacked authority from the other
    appellants, we interpret the motion judges reasons to mean that he rejected
    the evidence of Ms. Huma that she sent the May 18 Email without such authority.
    He stated:

Finally, the plaintiffs argued that it would
    be contrary to the interests of justice to enforce the settlement agreement.
    loan Huma is the injured party, having lost most of the functioning in his
    legs, and based on Elena Huma's evidence, never agreed to the settlement, nor
    was consulted. This claim conflicts with the email of May 18, 2018, which is
    signed by all three plaintiffs, stating 
We
are sending this email to
    you to inform you that
we
decided to dismiss this action. (Emphasis
    added.)

Without evidence from loan Huma himself, and
    without other evidence in the record corroborating that Elena Huma had no
    authority to speak for the other plaintiffs, I am not prepared to find that the
    settlement should not be enforced as unjust.

[24]

Although located in the portion of his reasons
    dealing with whether he would exercise his discretion  not to enforce the
    settlement, the motion judges rejection of the evidence that Elena Huma sent
    the May 18 Email without authority is nonetheless dispositive on the issue of
    whether the settlement was made without authority. In light of the form of the
    May 18 Emailostensibly sent on behalf of all the appellantsand the absence of
    any evidence from the other appellants that they had not authorized that email,
    there was a basis in the evidence for the motion judges finding, and it is
    entitled to deference on appeal.

[25]

The court has an undoubted discretion to refuse
    to enforce a settlement that is unconscionable. Here the motion judge
    recognized the discretion, cited the correct test, concluded on the evidence that
    the settlement was not unconscionable and refused to exercise the discretion. He
    found that the settlement could not be said to be grossly unfair or improvident,
    given the absence of evidence of the likelihood that the appellants action
    might succeed. Although the appellants were self-represented, he found that Elena
    Huma was sophisticated and there was no evidence the appellants had been
    pressured into agreeing to settle. He rejected the evidence that the settlement
    had been agreed to without the authority of all the appellants.

[26]

The motion judges exercise of discretion and
    the fact-finding that underlay it are entitled to deference on appeal. We see
    no error in the motion judges approach to this issue that would justify
    appellate intervention.

CONCLUSION

[27]

The appeal is dismissed.

[28]

If the respondents seek costs of the appeal,
    they may file written submissions, not exceeding two pages each, within ten
    days of the release of these reasons. The appellants may respond, by written
    submissions not exceeding four pages, within ten days of receipt of the
    respondents submissions. There shall be no reply submissions.

Paul
    Rouleau J.A.

B.W.
    Miller J.A.

B.
    Zarnett J.A.


