



COURT OF APPEAL FOR ONTARIO

CITATION: Biancaniello
    v. DMCT LLP, 2017 ONCA 386

DATE: 20170515

DOCKET: C61773

Feldman, Epstein and
    Miller JJ.A.

BETWEEN

Steve Biancaniello, Nick
    Romano, Prinova Technologies Inc., Prinova Software Inc.

Plaintiffs (Respondents)

and

DMCT LLP, Collins Barrow
    and Collins Barrow Toronto LLP

Defendants (Appellants)

Thomas D. Galligan, for the appellants

Adam Pantel, for the respondents

Heard: September 26, 2016

On appeal from the order of the
    Divisional Court (Justices
Herman J.
Wilton-Siegel,
    David L. Corbett and
Deena F.
Baltman), dated October
    30, 2015, with reasons reported at 2015 ONSC 6361.

Feldman
    J.A.:

INTRODUCTION

[1]

The parties signed a broadly-worded, mutual
    release to settle an action. Years later, an unanticipated claim came to light.
    The issue in this case is whether the release applies to the unanticipated
    claim. The motion judge and the Divisional Court held that it did not. I
    disagree and would allow the appeal for the following reasons.

FACTS

[2]

The respondent, Prinova Technologies, was
    incorporated in 1998 as a consulting business offering advice on document
    automation. It also developed a software business. From 2004 to until a fee
    dispute arose in 2007, the appellant, DMCT LLP, acted as Prinovas accountant.

[3]

DMCT billed Prinova a total of $66,632.45 for
    services rendered on three separate matters between 2006-2007:

·

Applying for a Scientific Research and Experimental Development
    (SRED) tax credit;

·

Negotiating the departure of an employee; and

·

Structuring a butterfly transaction in which Prinovas software
    and consulting businesses were divided into separate companies. This involved
    transferring the assets and intellectual property of the software business into
    a new company on a tax-deferred basis.

[4]

Prinova objected to paying the fees. In
    correspondence between Prinovas lawyer and DMCTs lawyer, Prinova alleged:

·

DMCT provided little or [no] value in preparing the SRED
    application. Not only was the application submitted late, Prinovas lawyer
    advised that, if challenged, his client was in a position to have several
    experts opine that the work carried out by [DMCT] in respect of the SRED claim
    was deficient.

·

DMCT ought to have recognized that it was in a conflict of
    interest by providing advice to both Prinova and the departing employee about
    the tax implications of the employees exit. Prinova alleged that DMCT clearly
    preferred the departing employees interest over those of Prinova and its
    principals.

·

DMCT overcharged Prinova for fees on the butterfly transaction.
    In particular, DMCT charged significant fees to ensure that the transaction did
    not negatively impact Prinovas bank covenants. Prinova described this as a
    make work project and argued that DMCT would have known that the bank would
    treat the consulting and software businesses as consolidated companies.

[5]

Prinovas counsel summarized his position: At
    the end of the day, my clients position has not changed in that not only did
    they obtain little value for the payments it has already made to your clients
    in respect of these matters, but it has incurred damages as a result of some of
    the advice provided by your client.

[6]

DMCT sued for its fees. Before a statement of
    defence was delivered, the parties agreed to settle the litigation for a total payment
    by Prinova of $35,000. As part of the settlement, the parties executed a mutual
    release dated March 31, 2008, the relevant part of which provides:

KNOW ALL
    MEN BY THESE PRESENTS that DMCT LLP (DMCT) and PRINOVA TECHNOLOGIES INC. and
    PRINOVA SOFTWARE INC. (hereinafter collectively referred to as Prinova)
,
    (including their officers, directors, employees, representatives, associates
    and assigns) in consideration of the sum of
THIRTY-FIVE THOUSAND DOLLARS ($35,000)
and other good and valuable consideration, receipt and sufficiency of which is
    hereby acknowledged, do hereby remise, release, and forever discharge each
    other of and from all manner of actions, causes of actions, suits, debts,
    duties, accounts, bonds, covenants, claims and demands which against each other
    they had, now have or hereafter may, can or shall have for or by reason of any
    cause, manner or thing whatsoever existing to the present time with respect to
    any and all claims
arising
    from any and all services provided by DMCT to Prinova through to and including
    December 31, 2007 and, without limiting the generality of the foregoing, with
    respect to any and all claims, counterclaims or defences that were pleaded or
    could have been pleaded in the action commenced in the Ontario Superior Court
    of Justice, as court file no. 08-CV-349246 PD3
. [Bold in
    original.]

[7]

In late 2011, in the course of a restructuring,
    Prinova learned that  far from being tax-free  the butterfly transaction, as
    DMCT had structured it, could be subject to an income tax liability of
    approximately $1.24 million.

[8]

As a result, Prinova obtained a court order
    dated January 23, 2013, rescinding the steps taken to implement the butterfly
    transaction. As part of the rescission application, Prinova included an
    affidavit from Enzo Testa, the DMCT partner who had advised Prinova on the
    butterfly transaction. In that affidavit, Testa acknowledged, without
    explanation, that the transactions as designed by DMCT did not comply with the
    relevant provisions of the
Income Tax Act
, R.S.C. 1985, c. 1 (5th Supp.),
and therefore were
    contrary to Prinovas intentions. Prinova incurred over $250,000 in legal and
    accounting fees in the process of obtaining the rescission order.

[9]

In May 2012, Prinova filed a notice of action
    against DMCT seeking an order setting aside the 2008 Release and claiming
    damages for negligence, breach of contract, misrepresentation and breach of
    fiduciary duty in the amount of $3 million.

[10]

DMCT moved for summary judgment to dismiss the action on the basis
    that Prinovas claim was barred by the 2008 Release.

JUDGMENTS BELOW

Motion
    for summary judgment

[11]

The motion judge dismissed DMCTs motion for summary judgment,
    finding that the release did not bar Prinovas claim. She explained that the
    wording of the 2008 Release refers to claims existing to the present time 
    i.e., in 2008. DMCTs admitted negligence only came to light in 2011, and
    because the evidence demonstrated that DMCT failed to make the proper records
    and tax filings that might have revealed it sooner, there would have been no
    basis for the plaintiffs to have asserted a claim, counterclaim or defence in
    the fees action at the relevant time: at para. 6(1).

[12]

The motion judge also made the following finding to support her
    conclusion, at para. 6(6):

[T]he Mutual Release is a standard, boilerplate form of release
    that did not and was not realistically intended by its wording to apply to an
    unrelated matter that arose  years subsequently and was not contemplated by
    the parties. As noted by Testa in his affidavit of June 15, 2012 filed in the
    rescission application, the result of non-compliance with s. 52(2) of the
Income
    Tax Act
was contrary to the intentions of both parties. The standard
    release in the fees action cannot, in my view, be read broadly to cover this
    circumstance.

Motion
    for leave to appeal to Divisional Court

[13]

Sachs J. granted leave to appeal to the Divisional Court. She found
    that there was good reason to doubt the correctness of the motion judges
    decision. Accepting that the parties might never have contemplated that DMCTs
    advice on the butterfly transaction might be wrong when they signed the 2008
    Release, there was still good reason to find that the express terms of the
    release precluded Prinovas claim. Relying on the express wording of the
    release, she stated, at para. 2(a): It is open to serious debate that this
    wording is broad enough to cover any claim, even a future claim, in relation to
    the advice that the defendants gave the plaintiffs prior to December of 2007.

[14]

The leave judge concluded, at para. 3: The proposed appeal involves
    issues concerning the ability of parties to settle claims that they may not
    have contemplated at the time of the settlement. This issue is an important one
    that extends beyond the interests of the parties and that could have an impact
    on the administration of justice.

Appeal
    to Divisional Court

[15]

The Divisional Court dismissed DMCTs appeal. At para. 4, it stated
    as a matter of law that:

Unless a release has exceptionally comprehensive language, it
    applies only to claims that were known to the parties at the time that it was
    executed. A dispute that had not emerged, or a question which had not arisen,
    cannot be absorbed by the words of a general release. If the parties want to
    bar unknown claims, they must use clear and unequivocal language to express
    that intention. [Citations omitted.]

[16]

The Divisional Court agreed with the motion judge that at the time
    it signed the release, Prinova did not know that DMCTs advice on the butterfly
    transaction had been negligently given, and therefore it did not know that it
    had a claim for negligence against DMCT. The court rejected DMCTs submission
    that the quality of its work (or lack thereof) was clearly within the
    contemplation of the parties when the 2008 Release was executed. The court
    held that Prinovas objections at that point related to the quality of work
    performed on the SRED application and the employment matter, but not the
    butterfly transaction.

[17]

By interpreting the words in the release any cause, manner or thing
     existing to the present time to include only known causes, the Divisional
    Court concluded that the negligence claim did not exist when the release was
    signed.

[18]

The appeal comes to this court with leave, granted on February 17,
    2016,  applying the criteria set out in
Re Sault Dock Co. Ltd. and City of
    Sault Ste. Marie
, [1973] 2 O.R. 479 (C.A.).


ISSUE

[19]

Did the Divisional Court err in law in its interpretation of the
    standard language used in the release by failing to properly apply the
    principles of interpretation established by the relevant case law?

ANALYSIS

Standard

of review

[20]

Before addressing the issue of law, I will briefly address the
    standard of review. As this case involves the interpretation of a release given
    in the context of the settlement of an action and the circumstances leading up
    to the action, one may think that the standard of review would be the
    deferential standard normally applicable to the interpretation of negotiated
    agreements:
Sattva Capital Corp. v. Creston Moly Corp.
, 2014 SCC 53,
    [2014] 2 S.C.R. 633. However, this appeal comes to the court as an appeal from
    the Divisional Court with leave. This affects the applicable standard of
    review.

[21]

In
Sault Dock
, this court determined the criteria it would
    apply when deciding whether to grant leave from a decision of the Divisional
    Court sitting in its appellate capacity. Because the court would be granting a
    second appeal hearing, leave will only be granted in exceptional circumstances
    where this court would be giving guidance on certain types of issues of general
    public importance. The court explained, at p. 481:

If the resolution of the question would largely have
    significance only to the parties and would not settle for the future a question
    of general interest to the public or a broad segment of the public, the
    requirements to obtain leave will not have been met.

[22]

Although the court does not give reasons when granting leave, it is presumed
    that leave was granted in this case because the appeal raises such an issue. Indeed,
    that was the basis upon which Sachs J. granted leave to the Divisional Court.
[1]
Here, the issue is the
    proper approach to the interpretation of a release. It is an issue of general
    public importance because although the release is not on a standard form, it
    uses language that is standard in many common release documents. From a standard
    of review perspective, this appeal raises a question of law to which the
    correctness standard applies. See
Ledcor Construction Ltd. v. Northbridge
    Indemnity Insurance Co.
, 2016 SCC 37,
    [2016] 2 S.C.R. 23.



Interpretation
    of the release

(a)

General
    principles

[23]

The seminal decision on the proper approach to
    the interpretation of a release is the House of Lords decision in
London
    and South Western Railway v. Blackmore

(1870), L.R. 4 H.L. 610. At
    p. 263, Lord Westbury stated: The general words in a release are limited
    always to that thing or those things which were specially in the contemplation
    of the parties at the time the release was given.

[24]

In
Hill v. Nova Scotia (Attorney General)
,
    [1997] 1 S.C.R. 69, Cory J. cited this principle with approval and noted, at
    para. 20:

What the statement quoted means is that in
    determining what was contemplated by the parties, the words used in a document
    need not be looked at in a vacuum.  The specific context in which a
    document was executed may well assist in understanding the words used.  It
    is perfectly proper, and indeed may be necessary, to look at the surrounding
    circumstances in order to ascertain what the parties were really contracting
    about.
[Emphasis added by Cory J.]

[25]


This approach was recently addressed again by the House of Lords in
Bank
    of Credit and Commerce International SA v. Munawar Ali
,

[2001]
    UKHL 8; [2001] 1 All E.R. 961.

[26]

In
Ali
, a bank terminated the
    employment of a number of employees and gave them severance packages. In
    exchange for a release, the bank gave the terminated employees, including the
    respondent, an extra months salary. The release contained the following
    language:

The Applicant [Mr.  Naeem] agrees to accept the terms set out
    in the documents attached in full and final settlement of all or any claims
    whether under statute, Common Law or in Equity of whatsoever nature that exist
    or may exist and, in particular, all or any claims rights or applications of
    whatsoever nature that the Applicant has or may have or has made or could make
    in or to the Industrial Tribunal, except the Applicants rights under the
    Respondents [the banks] pension scheme.

[27]

A year later, during the course of the wind-up
    of the bank, it was discovered that the bank had been carrying on its business
    in a corrupt and dishonest manner. A number of employees wished to sue the bank
    for damages caused by the stigma of working for a corrupt bank, a previously-unknown
    cause of action. The claim was rejected until the case reached the House of
    Lords, which ruled that such a claim was sustainable in principle. The respondent
    then wished to pursue a claim for stigma damages, and the issue was whether he
    was barred from doing so by the terms of the release.

[28]

Lord Bingham of Cornhill wrote the main decision
    for the majority. He explained that in interpreting the release, as in
    interpreting any contractual provision, the object of the court is to give
    effect to what the contracting parties intended: at para. 8. The court does
    not inquire into the parties subjective states of mind, but makes an objective
    assessment based on the contract as a whole, the impugned words in their
    ordinary meaning and in the context of the agreement, the parties relationship,
    and all relevant facts surrounding the transaction so far as known to the
    parties.

[29]

Lord Bingham reviewed the jurisprudence from the
    English and Australian courts on the interpretation of releases. The
    jurisprudence established that, by using appropriate language, a party can release
    claims that the party neither knew nor could have known, nor even imagined.
    However, in the absence of clear language, the court will be very slow to
    infer that a party intended to surrender rights and claims of which he was
    unaware and could not have been aware: at para. 10. At para. 14, Lord Bingham
    quoted from a decision of Dixon C.J. of the High Court of Australia in
Grant
    v. John Grant and Sons Pty. Ltd.

(1954), 91 C.L.R. 112, at pp. 129-130:

From the authorities which have already been cited it will be
    seen that equity proceeded upon the principle that a releasee must not use the
    general words of a release as a means of escaping the fulfilment of obligations
    falling outside the true purpose of the transaction as ascertained from the
    nature of the instrument and the surrounding circumstances including the state
    of knowledge of the respective parties concerning the existence, character and
    extent of the liability in question and the actual intention of the releasor.

[30]

Turning to the release before the court, Lord
    Bingham pointed out that although the wording was wide enough to cover more
    than all incidents of the employer/employee relationship, the banks liquidators
    acknowledged that they would not seek to apply the release to, for example, a
    claim for a deposit held in an account at the bank. He concluded from this that
    the broad words used could not be read literally.

[31]

Lord Bingham held, at para. 19, that because the
    claim for stigma damages was something that the parties to the release could
    never have had in contemplation at all, the parties could not have intended
    that such a claim would be surrendered by the release.

[32]

Lord Nicholls of Birkenhead wrote concurring
    reasons. He pointed out the problem that often arises when interpreting a
    release: in settling a dispute, the parties want to wipe the slate clean, but
    then when an unexpected claim comes to light, it is unclear whether the broad
    general language used was intended to cover the unexpected claim.

[33]

In addressing the problem, he refuted the
    suggestion that unknown claims are not covered by broad general language. I
    quote his discussion, at para. 27:

The wording of a general release and the context in which it
    was given commonly make plain that the parties intended that the release should
    not be confined to known claims. On the contrary, part of the object was that
    the release should extend to any claims which might later come to light. The
    parties wanted to achieve finality. When, therefore, a claim whose existence
    was not appreciated does come to light, on the face of the general words of the
    release and consistently with the purpose for which the release was given the
    release is applicable. The mere fact that the parties were unaware of the
    particular claim is not a reason for excluding it from the scope of the
    release. The risk that further claims might later emerge was a risk the person
    giving the release took upon himself. It was against this very risk that the
    release was intended to protect the person in whose favour the release was
    made.

[34]

That said, Lord Nicholls cautioned that this approach should not be
    pressed too far. He explained, at para. 28:

However widely drawn the language, the circumstances in which
    the release was given may suggest, and frequently they do suggest, that the
    parties intended or, more precisely, that the parties are reasonably to be
    taken to have intended, that the release should apply only to claims, known or
    unknown, relating to a particular subject matter. The court has to consider,
    therefore, what was the type of claims at which the release was directed.

[35]

For example, Lord Nicholls explained, a mutual
    general release on a settlement of final partnership accounts might properly be
    interpreted as being confined to claims arising in connection with the
    partnership business. It would not extend, for example, to a later claim by one
    partner against the other that the tree roots of his neighbouring property were
    encroaching.

[36]

Applying this discussion of principles to the
    issue in
Ali
, Lord Nicholls held that it was clear from the wording
    that the parties did not intend the release to be limited to known claims, but
    that it was limited to claims arising out of the ending of the employment
    relationship. However, the parties were contracting based on the law as it then
    stood, and a claim arising as a result of a change in the law could not have
    been within the contemplation of the parties.

[37]

Lord Hoffmann, writing in dissent, began by
    characterizing the words of the release as very broad, without any deliberate
    gaps. Nevertheless, he explained that there may still be limitations in the
    scope of the release which could be inferred from the background.

[38]

Often a release is given as part of the
    settlement of a dispute. In such a case, the scope of the dispute provides a
    limiting background context to the document: at para. 41. Lord Hoffmann
    adopted the oft-quoted statement of Lord Westbury in
London Railway
: The
    general words in a release are limited always to that thing or those things
    which were specially in the contemplation of the parties at the time when the
    release was given. Lord Hoffmann noted, at para. 42: This is a rather
    sweeping statement. It is almost always dangerous to say always. But, in
    cases of a release given in connection with the settlement of a dispute, it is
    a fair generalization.

[39]

In
Ali
, the context for the release was
    not ending litigation, but ending an employment relationship. Therefore, all
    claims meant claims arising from the employment relationship, and included
    both known and unknown claims. Lord Hoffmann reasoned that because the bank
    paid specific amounts for the known claims, the extra months salary it paid
    for the release must have been for unknown claims, including those not then
    known to the law. For the bank, the purpose of the release was finality. For
    the employee, the more unlikely or remote a claim, the more likely the employee
    would be willing to release it for extra money.

[40]

Lord Hoffmanns approach was to give effect to what the parties
    agreed on ordinary principles of construction. He rejected the submission that
    because the bank conceded that in spite of the very broad language of the
    release, some claims such as personal injury claims or claims on accounts held
    at the bank were not covered, therefore
all
unknown claims were not
    covered. He explained that while the bank did not advocate for a literal
    meaning (i.e. covering any claim whatsoever), it argued for a contextual
    meaning that would exclude claims outside the employment relationship, but
    would not exclude unknown claims altogether. Further, if the context
    demonstrated that both parties intended that the release applied to claims
    unknown to both of them, he saw nothing unfair in giving effect to that
    intention. He concluded that it would give the language of the release a strained
    construction to interpret it to exclude the stigma claim: at para. 75.

[41]

In summary, the real issue in
Ali
was not whether the
    general words of the release should be interpreted to include unknown claims. All
    the Law Lords agreed that the release covered factually unknown claims. Rather,
    the issue was whether it was fair to conclude that it was in the parties contemplation
    that the release included a claim for stigma damages, where such a claim was
    unknown in law (and in fact) to the parties when they drafted and signed it.

(b)

Application to this
    case

[42]

The factual context and wording of the release are both quite different
    in this case than in
Ali
. However, I have discussed the opinions in
    the
Ali

case at some length because the Law Lords considered virtually
    every interpretive issue that could arise in applying the concept of what was in
    the contemplation of the parties when faced with a broadly-worded release. One
    can distill the following principles from these reasons:

1. One looks first to the language of a
    release to find its meaning: at para. 8.

2. Parties may use language that
    releases every claim that arises, including unknown claims. However, courts
    will require clear language to infer that a party intended to release claims of
    which it was unaware: at paras. 9-10.

3. General language in a release will
    be limited to the thing or things that were specially in the contemplation of
    the parties when the release was given: at para. 13.

4. When a release is given as part of
    the settlement of a claim, the parties want to wipe the slate clean between
    them: at para. 23.

5. One can look at the circumstances
    surrounding the giving of the release to determine what was specially in the
    contemplation of the parties: at para. 28.

[43]


Applying these principles to the interpretation of the mutual release
    between these parties, the context was that the release was given as part of
    the settlement of a fees action by accountants against their client. The client
    had been unhappy with the service provided by the accountants on three matters.
    In their lawyers letter, the client complained that the accountants
    overcharged for what was accomplished, were in a conflict of interest, performed
    unnecessary work, and performed deficient work. Because the release was given
    as part of the settlement of the fees claim, its purpose for both parties was to
    wipe the slate clean in respect of the dispute between the parties.

[44]

The release does not purport to release all possible claims, without
    limitation, that may exist between the parties. Nevertheless, to the extent
    that the release contains general language, the court must try to determine the
    matters that were specially within the contemplation of the parties In this
    case, one will look at the fact that the context is the settlement of an
    action. In that context, the language of the release limits its intended scope.

[45]

The language of the release refers to all claims existing up to the
    present time, arising from any and all services provided by DMCT to Prinova
    through to and including December 31, 2007. In other words, it limits the
    claims that are released to those that existed up to that time, arising from
    all of the services provided by the accountants to the client up to the end of
    December, 2007. And for greater certainty, it releases all claims made in the
    fees litigation, as well as all defences or counterclaims that were pleaded or
    could have been pleaded. Negligent provision of services would have been a
    viable defence or counterclaim in the fees litigation.

[46]

Because the release is specific as to the exact claims that are
    released, there is no need to search for what was contemplated by the parties.
    It is spelled out specifically and clearly.

[47]

The claim that the client now seeks to assert against the
    accountants is a claim that arises out of the services that the accountants
    provided before the end of December 2007.  The client says that its claim is
    nevertheless not barred by the language of the release on two bases: first, the
    claim was unknown to the parties at the time the release was signed and the
    release does not say that it includes unknown claims. Second, the claim did not
    exist at the time the release was signed because neither party knew about it or
    had any reason to know about it at that time.

[48]

In my view, neither of these objections bears scrutiny.

[49]

Although the release does not specifically say that it includes
    unknown claims, it includes all claims arising from the services provided by
    the accountants up to the end of December 2007. By including all claims, but
    limiting the description of the claims that are intended to be covered both by
    subject matter and by time frame, there is no need to further specify the types
    of claims that are included. The language is specific and fully understandable:
    it includes all claims related to professional services provided during the
    specified time frame. There is no need, for example, to say, including tort
    claims, negligence claims, breach of contract claims, costs claims, etc. They
    are all included unless specifically excluded. The same analysis applies to
    unknown claims  by specifying the claims contemplated by the parties and
    describing them inclusively, all claims in the defined category are included
    unless specifically excluded. Had it said including known and unknown claims,
    that would just have been another way of saying that the release includes all
    claims.

[50]

In my view, the language used by the parties in this release was
    clear and unequivocal in its intent and effect. The Divisional Court did not
    find the language exceptionally comprehensive enough to include the claim
    that arose. I do not agree. More words would not assist. I agree with the
    observation by Lord Hoffmann in
Ali
, at para. 38, that the solution
    does not lie with more verbiage.

[51]

The problem for the client here is not that the words used are unclear,
    but that the claim that arose was unanticipated. In signing the release, the
    parties intended to fully and finally settle the fee dispute  a dispute that
    arose because the client was unhappy with both the time spent and the quality
    of service provided by the accountants. The language of the release covers all
    claims arising from the work the accountants did on the butterfly transaction
    in 2007. The parties were wiping the slate clean in respect of that work. Had
    the client wished to exclude claims it might later discover arising from that
    work, it could have bargained for that result.

[52]

The Divisional Court held that because the parties were not aware
    that the accountants had given negligent advice on the butterfly transaction,
    the clients claim for negligence did not exist when the release was signed.
    With respect, this statement constitutes an error of law. The negligent advice
    on how to put in place a butterfly transaction to achieve a tax-free division
    of the clients business was provided by the accountants in April 2007. Because
    neither party was apparently aware that the advice was negligent, there would
    be a discoverability issue for the purpose of determining the relevant
    limitation period. However, the fact that the claim was not discovered does not
    mean that it did not exist, nor that it was not discoverable. In fact, it did
    exist, but came to light only upon being discovered by other accountants four
    years later.

(c)

Other issues
    raised by the Statement of Claim

[53]

The client did not commence this action with a claim for negligent
    advice and a defence based on the release. Rather, the statement of claim seeks
    to set aside the release on the basis that it was entered into based on the misrepresentation
    by the accountants that their advice on the butterfly transaction would result
    in no tax consequences, and that because that turned out to be untrue, the
    release was unconscionable.

[54]

The accountants responded by moving for summary judgment on the
    basis that the release released any claim against it arising from the impugned
    advice. The courts below found that the release did not bar the underlying negligence
    claim. I have found that the release does bar the underlying claim. This leaves
    the question whether there is anything left to be determined in the action.

[55]

There is no claim made for fraudulent misrepresentation or
    concealment. To the contrary, it is acknowledged that the accountants did not
    know that the advice on the butterfly transaction was ineffective or negligent
    at the time it was given. Therefore, the misrepresentation claim is, in effect,
    a claim based on negligent advice on the butterfly transaction. I have found
    that that claim is barred by the release. The unconscionability claim is
    similarly founded upon the negligent advice on the butterfly transaction. It is
    therefore barred as well.

RESULT

[56]

The Divisional Court upheld the decision of the motion judge, which dismissed
    the appellants motion for summary judgment and set this matter down for trial,
    because it found that the respondents claims were not barred by the release. I
    would allow the appeal, set aside the decision of the Divisional Court and
    grant summary judgment dismissing the action.

[57]

I would fix the costs of the appeal and motion for leave to appeal
    at $24,000 inclusive of disbursements and HST. I would award the costs of the
    three proceedings below to the appellant in the amounts fixed by the courts
    below.

Released: G.E. May 15, 2017

K.Feldman J.A.

I agree. Gloria Epstein J.A.

I
    agree. B.W. Miller J.A.





[1]

Sault Dock
also recognizes that
    the court may grant leave where it appears in the interests of justice to do
    so, such as where there is new evidence, an obvious misapprehension on the
    Divisional Courts part of a relevant fact, or a clear departure from the
    established principles of law resulting in a miscarriage of justice. None of
    these criteria apply in this case.


