



COURT OF APPEAL FOR ONTARIO

CITATION: Rubner v. Rubner, 2020 ONCA 195

DATE: 20200311

DOCKET: C67273

Tulloch, Benotto and Jamal JJ.A.

BETWEEN

Marvin Rubner

Applicant (Appellant)

and

Joseph Rubner

Respondent (Respondent)

Markus Kremer and Graham Splawski, for the appellant

Sean M. Grayson, for the respondent

Heard: March 5, 2020

On appeal from the
    judgment of Justice Laurence A. Pattillo of the Superior Court of Justice,
    dated July 11, 2019, with reasons reported at 2019 ONSC 4110.

REASONS FOR DECISION

[1]

The sole issue on this appeal is whether two brothers, Marvin and Joseph
    Rubner, reached a binding settlement agreement of the litigation between them relating
    to their respective interests in a real estate business. Marvin says that he
    and his brother had a deal; Joseph disputes this.

[2]

The application judge sided with Josephs position, based on his
    interpretation of documents and emails relating to the alleged agreement and evidence
    of the surrounding circumstances preceding it.

[3]

The application judge found that a handwritten document of Deal Points
    signed by Joseph, which was provided to Marvin and his counsel on July 31, 2018,
    limited the authority of Josephs counsel to renegotiate the Deal Points; it merely
    authorized Josephs counsel to negotiate comprehensive minutes of settlement implementing
    them. The application judge found that this limitation of authority arose from Josephs
    handwritten notation on the Deal Points: I confirm my agreement to the deal
    points herein, and give authority to [my counsel] to negotiate comprehensive
    Minutes of Settlement.

[4]

Marvin never signed back the Deal Points, and instead responded with what
    his counsel described at the time as additional material terms. Josephs
    counsel then purported to accept the new terms without Josephs authorization.

[5]

The application judge also supported his conclusion that Marvin and Joseph
    had not concluded a settlement agreement with: (1) evidence of a course of
    dealings showing that both Marvin and Joseph understood that they each had to
    agree to the Deal Points or material terms of the settlement and they each had
    to sign the document setting out the Deal Points; and (2) evidence showing
    that Marvins counsel was aware of Josephs counsels limitation of
    authority.

[6]

The application judge therefore held that no agreement was reached
    between Marvin and Joseph on the Deal Points or material terms of the
    settlement. There was no mutual intention to agree and accordingly no binding
    settlement was reached between them.

[7]

Marvin now asserts that the application judge erred in his appreciation
    of the evidence by: (1) misunderstanding the nature and effect of the
    communications between Marvins counsel and Josephs counsel; (2) failing to
    consider the evidence of Josephs counsel that when he informed Marvins counsel
    that the parties were 
ad idem
, he was communicating on Josephs
    behalf; and (3) finding that Joseph limited the authority of his counsel to
    renegotiate the Deal Points. In particular, Marvin asserts that the application
    judge applied the wrong legal test and should have asked whether Josephs counsel
    had ostensible rather than actual authority to conclude the settlement on
    Josephs behalf.

[8]

We do not accept these arguments. The application judges interpretation
    of the Deal Points in light of the surrounding circumstances to determine whether
    the parties reached a binding settlement agreement is a question of mixed fact
    and law reviewable only for palpable and overriding error:
Sattva Capital
    Corp. v. Creston Moly Corp.
, 2014 SCC 53, [2014] 2 S.C.R. 633, at paras. 50,
    52. Marvin has shown no such error. The application judges decision is therefore
    entitled to appellate deference.

[9]

We are not persuaded that the application judge failed to apply the correct
    legal test for ostensible authority. He cited, at paragraph 29 of his reasons, this
    courts decision in
Dick v. McKinnon
, 2014 ONCA 784, at para. 4, as
    authority for the settled proposition that a solicitor of record has the
    ostensible authority to bind his or her client and that opposing counsel is
    entitled to rely on that authority, absent some indication to the contrary. He went
    on, at paragraphs 30 to 33 of his reasons, to apply that principle to the
    evidence in this case. He found an indication to the contrary regarding the
    ostensible authority of Josephs counsel in Josephs handwritten notation on
    the Deal Points, cited above at paragraph 3, that limited his counsels
    authority to negotiating the minutes of settlement, rather than the Deal Points,
    and in the evidence referred to at paragraph 5 above. The application judges
    application of the settled test for ostensible authority to his findings of
    fact is entitled to appellate deference.

[10]

The appeal is dismissed. Costs are payable to Joseph in the agreed
    amount of $10,000, inclusive of HST and disbursements.

M. Tulloch J.A.

M.L. Benotto J.A.

M. Jamal J.A.


