



COURT OF APPEAL FOR ONTARIO

CITATION: A.C. Concrete Forming Ltd. v. JAC Concrete
    Structures and Drain Inc., 2018 ONCA 272

DATE: 20180319

DOCKET: C64509

Simmons and Pepall JJ.A. and Fragomeni J. (
ad
    hoc
)

BETWEEN

A.C. Concrete Forming Ltd.

Plaintiff (Respondent)

and

JAC
    Concrete Structures and Drain Inc., Joseph Tavares and

The
    Estate of Joseph Tavares, deceased, by its Litigation Administrator,

and Executor Grace Tavares

Defendants (Appellants)

Dennis Touesnard, for the appellants

Amanda Pilieci, for the respondent

Heard and released orally: March 12, 2018

On appeal from the judgment of Justice V. Chiappetta of
    the Superior Court of Justice, dated October 3, 2017.

REASONS FOR DECISION

[1]

On a motion to enforce a settlement, the motion judge found that
    following a meeting on February 3, 2016, the respondent, by its counsel, and
    Ms. Tavares, litigation administrator and executor of the then deceased personal
    defendant, entered into a verbal settlement agreement on February 9, 2016.  The
    motion judge concluded that rule 49 had no application in the circumstances. 
    Rather, she determined that the motion before her was akin to a summary
    judgment motion. Counsel for the appellants did not object to her proceeding on
    that basis.

[2]

Although there was conflicting evidence on the motion concerning whether
    a settlement agreement had been reached, the motion judge concluded it was
    appropriate to proceed in the interests of efficiency and access to justice and
    that oral evidence was unnecessary to assess credibility of the conflicting
    witness statements.

[3]

Ultimately, the motion judge accepted the respondents evidence that a
    settlement had been reached and rejected the appellants evidence that it had
    not based on the following factors:

(1)

on March
    7, 2016, respondents counsel sent Ms. Tavares a draft order and consent
    reflecting the terms of the alleged settlement and asked that she execute the
    consent;

(2)

Ms.
    Tavares acknowledged receipt of same by voice mail left on March 15, 2016;

(3)

respondents
    counsel sent follow-up communications requesting the return of the executed
    documents on March 22, 2016 and April 20, 2016 referencing the fact of a
    settlement and Ms. Tavares did not respond.  While Ms. Tavares explanation
    that her husband had a stroke in June 2016, explained her failure to respond in
    the months immediately following that event, it did not explain her failure to
    object to the documentation and the assertion of a settlement in the several
    months prior to that event or after October 2016 when she returned to work;

(4)

Ms.
    Tavares claims that she felt pressured and scared at the February meetings
    were not credible in light of her experience in the legal field and the
    presence of her brothers two adult children with her at both meetings; and

(5)

the estate
    made no attempt to continue with the litigation after the February 9, 2016
    meeting.

[4]

The appellants raise three main issues on appeal.  First, they argue
    that the motion judge erred in failing to apply the two-part test under rule
    49.09 in determining whether the settlement should be enforced.

[5]

We do not accept this submission.  No rule 49 offers were served.  Accordingly,
    on a proper reading of rule 49, it does not apply to this case.  The motion
    judge was correct in making this determination.

[6]

Second, the appellants argue that the motion judge erred in finding
    there was no genuine issue regarding whether the parties intended to create a
    legally binding agreement.

[7]

We reject this argument.  As set out above, the motion judge carefully
    considered and gave detailed reasons for finding that there was a legally
    binding agreement.  The appellants have demonstrated no palpable and overriding
    error in this finding.

[8]

Third, the appellants argue that the motion judge erred in failing to
    consider,   by analogy to the rule 49 test, whether any settlement agreement
    that may have been reached should be enforced.

[9]

We reject this submission.  It was not made in the court below.  In any
    event, even assuming a two-part test is applicable, on our reading of her
    reasons, the motion judge fully considered all relevant factors impacting
    whether the settlement should be enforced.

[10]

The
    appeal is therefore dismissed.  We would clarify, however, and it is conceded
    on appeal, that the judgment does not apply to the corporate defendant.

[11]

Costs
    of the appeals are to the respondent on a partial indemnity scale fixed in the
    amount of $7,500 inclusive of disbursements and all applicable taxes.

Janet Simmons J.A.

S.E. Pepall J.A.

Fragomeni J. (
ad hoc
)


