



COURT OF APPEAL
    FOR ONTARIO

CITATION: Pierce v. Belows, 2020 ONCA 41

DATE: 20200124

DOCKET: C67065

Simmons, Lauwers and Nordheimer JJ.A.

BETWEEN

Robert
    Edward Pierce

Plaintiff (Appellant)

and

Lesley Karen Belows

Defendant (Respondent)

Lauren Tomasich, Elie Farkas and Sean Lawler, for the
    appellant

Jordan Goldblatt, for the respondent

Heard: January 21, 2020

On
    appeal from the judgment of Justice Lorne Sossin of the Superior Court of
    Justice, dated May 16, 2019, with reasons reported at 2019 ONSC 3014.

REASONS FOR DECISION

[1]

The first issue we must address is whether an agreement by the
    appellants former counsel and respondents counsel to settle this matter
    should be enforced.

[2]

On May 16, 2019 the motion judge granted summary judgment in the
    appellants favour in relation to a $12,000 loan but dismissed the bulk of his claims.

[3]

In early June 2019, the appellants former counsel and the respondents
    counsel exchanged email correspondence concerning settlement.

[4]

The appellant acknowledges that based on a review of the email
    correspondence between counsel an objective observer would conclude that this
    matter had settled on terms that included the appellant waiving his right of
    appeal from the May 16, 2019 order and forgiving the $12,000 loan plus interest
    in exchange for a waiver of costs.

[5]

Nonetheless, the appellant submits his unchallenged evidence establishes
    he never intended to make a binding offer to settle. Relying on this courts
    decision in
Milios v. Zagas
(1998), 38 O.R. (3d) 218 (C.A.), he submits
    that, in these circumstances, several factors support this court exercising its
    discretion not to enforce the settlement. These factors include: the short time
     mere hours  that elapsed between the settlement and his former counsels
    repudiation of the settlement, thus leaving the parties pre-settlement
    positions intact; apart from losing the benefit of the settlement, the absence
    of prejudice to the respondent if the settlement is not enforced; the relative
    prejudice to the appellant in losing his right of appeal; and the fact that no
    third parties will be affected if the settlement is not enforced.

[6]

We do not accept the appellants argument. As a starting point,
Milios
is distinguishable from this case. In
Milios
, this court acknowledged
    the well-established pre-rule 49 principle from
Scherer v. Paletta
,
    [1966] 2 O.R. 524 (C.A.), that a solicitor whose retainer is established may
    bind his client to a settlement unless the client had limited the solicitors
    authority and the limitation was known to the opposing side.
[1]
However, at para. 16 of
Milios
, this court held the facts of that case (
Milios
)
    involved a mistake, not a limitation of authority. Following consideration of
    the whole of the underlying circumstances, this court exercised its discretion
    not to enforce the settlement.

[7]

Unlike
Milios
, this is not a rule 49 case. Further, the facts of
    this case are very different from the facts in
Milios
. In
Milios
the clients wife advised counsel her husband was away but had told her to go
    ahead with the settlement. Acting on these instructions, counsel accepted an
    offer made by the opposing side. On his return, the client clarified he told
    his wife to go ahead with his (the clients) previous settlement offer, not the
    offer from the other side.

[8]

In this case, the appellant acknowledges instructing his former counsel to
    open negotiations with [the respondents] lawyer about settling the dispute.
    However, he asserts he did not authorize his former counsel to make an offer to
    settle. Unlike
Milios
, this is not an assertion of a mistake. Rather, it
    is an assertion that counsels authority was limited and did not extend to
    making an offer to settle.

[9]

Although this court retains discretion not to enforce a settlement, the
    facts of this case do not compel that result. The appellants former counsel
    was retained, had authority to  and was instructed to  engage in settlement
    negotiations. No limitation on his authority was communicated to the
    respondent. Declining enforcement in the circumstances of this case could undermine
    the certainty that is essential to encouraging meaningful settlement
    negotiations between counsel.

[10]

Given our conclusion that the settlement should be enforced, we
    decline to address the issues raised by the appellant, but in doing so we are
    not to be taken as necessarily agreeing with the motion judges reasons.

[11]

The appeal is allowed, the order below is set aside and in its place an
    order in accordance with the settlement is substituted. In all the
    circumstances, we make no order as to the costs of the appeal or of the motion
    below.

Janet Simmons J.A.

P. Lauwers J.A.

I.V.B. Nordheimer
    J.A.





[1]

Scherer
was pre-rule 49 but  consistent with rule 49  acknowledged the
    discretionary power of the court to inquire into the circumstances of a
    settlement and decide whether or not to enforce it.


