



COURT OF APPEAL FOR ONTARIO

CITATION: Thompson 28 Co. Ltd. v. Buote, 2015 ONCA 376

DATE: 20150525

DOCKET: C59709

MacPherson, Cronk and Gillese JJ.A.

BETWEEN

Thompson 28 Co. Ltd. and
    Robert Jewett

Applicants (Respondents)

and

John David Buote

Respondent (Appellant)

John David Buote, acting in person

Jonathan Mesiano-Crookston, for the respondents

Heard: May 22, 2015

On appeal from the judgment of Justice Kevin W. Whitaker
    of the Superior Court of Justice, dated October 30, 2014.

ENDORSEMENT

[1]

The appellant John Buote appeals the judgment of Whitaker J. of the
    Superior Court of Justice dated October 30, 2014 declaring that a Memorandum of
    Settlement dated April 29, 2014 is a binding contract between the parties.

[2]

Mr. Buote, an Ontario tax lawyer, and Thompson 28 Co. Ltd., a Manitoba
    corporation, and Robert Jewett, the sole officer and director of Thompson 28,
    had a fairly lengthy solicitor-client relationship. Eventually, this relationship
    foundered and litigation ensued in Manitoba. First in 2013 and again in April
    2014, the parties tried to resolve their differences.

[3]

On April 29, 2014, the parties signed a Memorandum of Settlement. In the
    memorandum, the parties selected the law of Ontario and granted exclusive
    jurisdiction to the courts of Ontario.

[4]

The appellant refused to comply with one term of the Memorandum of
    Settlement relating to the date for a transfer to the respondent company of his
    shares in the company. The respondents brought an application seeking a
    declaration that the Memorandum of Settlement was binding and effective.

[5]

Whitaker J. granted the application. In brief reasons, he concluded that
    a neutral and objective party would conclude on the language of the April 29,
    2014 document that the parties have entered in a binding agreement to resolve
    all outstanding issues I conclude that the settlement is a binding contract
    and should be upheld as such.

[6]

On appeal, the appellant contends that the application judge erred by
    concluding that the Memorandum of Settlement was a binding contract. As we
    understand his argument, he makes two points in support of this ultimate
    conclusion.

[7]

First, the appellant submits that the application judge ignored part of the
    test for contract formation, namely, whether there was sufficient certainty as
    to the Memorandums essential terms: see
UBS Securities Inc. v. Sand
    Brothers Canada Ltd.
, 2009 ONCA 328.

[8]

We do not accept this submission. The application judge examined the
    words of the Memorandum of Settlement (a two-page document), which are quite
    straightforward and easy to understand, especially for an experienced tax
    lawyer, and concluded that the parties had reached a binding contract, as
    attested by the appellants signature. This is not a case of a long,
    complicated document with multiple possible meanings for some of its
    provisions.

[9]

Second, the appellant contends that the application judge did not have
    proper regard to all the evidence, focussing instead on the words of the
    Memorandum.

[10]

Aside
    from the obvious point that the
sine qua non
of contract
    interpretation is the words of the contract, there is nothing to suggest that
    the application judge did not review and consider the relevant evidence,
    including affidavits, exhibits, and the behaviour and actions of the parties
    before and after the Memorandum was signed.

[11]

We
    add this observation. The terms of the Memorandum are entirely inconsistent
    with the appellants claim that there were other outstanding rights and
    obligations between the parties that were unaffected by the settlement (for
    example, the loan guarantee and indemnity arrangements between the parties).
    The Memorandum clearly and unambiguously provides that it pertains to all
    outstanding disputes between the parties that no other amounts will be payable
    to [the appellant] other than as provided for under the Memorandum, and that
    the documents necessary to document an April 1, 2012 share transfer would be
    signed by the appellant. The appellant, an experienced tax lawyer, did not object
    to these terms at the time of execution of the Memorandum. It is not open to
    him to do so now.

[12]

The
    appeal is dismissed. The respondents are entitled to their costs of the appeal
    fixed at $12,000, inclusive of disbursements and applicable taxes.

J.C. MacPherson J.A.

E.A. Cronk J.A.

E.E. Gillese
    J.A.


