



COURT OF APPEAL FOR ONTARIO

CITATION: Banerjee v. Mathoo, 2021 ONCA 140

DATE: 20210303

DOCKET: C68486

Fairburn A.C.J.O., Miller and
    Zarnett JJ.A.

BETWEEN

Debjani
    Banerjee

Applicant (Respondent)

and

Julian Marshall Mathoo

Respondent (Appellant)

Orie Niedzviecki and Yousef Elsohemy,
    for the appellant

Susan Sack and Andrea Acri, for the
    respondent

Heard: March 1, 2021 by video conference

On
    appeal from the order of Justice Erika Chozik of the Superior Court of Justice,
    dated March 13, 2020, with reasons at 2020 ONSC 1606.

REASONS FOR DECISION

[1]

The parties separated in 2011. The matrimonial
    home was sold in November 2017. While the respondent received her entire one-half
    interest in the matrimonial home, the appellant did not. A large portion of the
    appellants one-half interest in the matrimonial home was used to pay a debt,
    and the balance of $440,202.65 was then held in trust, pending determination of
    the parties financial issues.

[2]

As the trial of those issues approached, the
    parties attended a Trial Management Conference on March 25, 2019 before Coats
    J., where they entered into a consent settlement agreement, requiring the
    respondent to pay the appellant $280,000 to equalize their net family property.
    The order reflected that it disposed of all property issues between the
    parties. The balance of all outstanding issues was to be determined at trial.

[3]

The parties attended another Trial Management
    Conference before Coats J. on March 29, 2019. The respondent made an offer to
    settle, agreeing to accept $255,000 as a full and final settlement of all
    outstanding issues. According to the affidavit of the respondents counsel at
    the Trial Management Conference, counsel for the respondent told counsel for the
    appellant that the offer was made 
[
i
]
n full and final
    satisfaction of all claims, including the husbands equalization claim and the
    wifes support arrears claim. This position is supported by a document
    exchanged on that day, entitled Balance Owing Calculation, including the
    hand-written notations contained on that document.

[4]

While those negotiations failed in the context
    of the Trial Management Conference, the respondent reiterated the offer in a
    written Offer to Settle, dated April 1, 2019. The offer was to settle all
    outstanding issues in these proceedings. The offer specifically addressed the
    remaining amount of money held in trust as a result of the sale of the
    matrimonial home and how it was to be divided: (a) $255,000 to the respondent;
    and (b) $185,202.65 to the appellant. The respondent signed and accepted the
    offer. The offer was signed back as approved by the appellant on April 2, 2019.
    A court order including the terms of the accepted Offer to Settle was issued on
    April 5, 2019. The funds were disbursed accordingly.

[5]

Within a few weeks, the appellant inquired about
    what arrangements had been made regarding the payout of the $280,000
    equalization payment, and he commenced garnishment proceedings. Surprised by
    this inquiry, the respondent brought a motion to amend the two prior court
    orders so that it was clear that the final order dated April 5, 2019 was
    intended to settle all outstanding issues in these proceedings, including the
    equalization payment. In other words, the respondent sought an amendment that
    would make it clear that the equalization payment was accounted for in the
    final agreement reached by the parties.

[6]

The motion was granted. The motion judge concluded
    that there was no further amount owed by the respondent to the appellant, as it
    was clear that the parties and the court intended that the equalization amount
    be offset by the other amounts that were owed by the appellant to the respondent.
    The motion judge found that it was clearly implied that the April 5, 2019 order
    subsumed the equalization payment that had been reflected in the March 25, 2019
    order. Ultimately, both orders were amended to make it clear that the payments
    from the funds held in trust were in full and final satisfaction of all
    outstanding matters, including the equalization payment.

[7]

The appellant argues that the motion judge made
    two errors: (a) an error of law by improperly applying the officious bystander test;
    and (b) an error of fact by reading the March 25, 2019 order into the April 5,
    2019 order. We do not agree.

[8]

As acknowledged by the parties on appeal, the
    motion judge correctly stated the officious bystander test: see
Canadian
    Pacific Hotels Ltd. v. Bank of Montreal
,
[1987] 1
    S.C.R. 711, at p. 775;
M.J.B. Enterprises Ltd. v.
    Defence Construction (1951) Ltd.
, [1999] 1 S.C.R.
    619, at para. 27
. The question is whether she applied
    it correctly. In our view, she did.

[9]

Having reviewed the entire record, the motion
    judge concluded that the parties and court clearly understood and intended that
    the $280,000 amount owing under the March 25, 2019 order would be offset by the
    amounts the appellant owed to the respondent.

[10]

We have little to add to what the motion judge
    said on this point. Read as a whole, the record clearly demonstrates the
    intention of the parties when the Offer to Settle was signed and the April 5,
    2019 order was issued. To make this point, one need only look to common sense.
    There was $440,202.65 sitting in trust from the sale of the matrimonial home.
    If the appellant had thought that he was owed another $280,000, above the
    $185,202.65 agreed to under the Offer to Settle, it makes no sense that he
    would have agreed to release $255,000 to the respondent from the funds held in
    trust. Rather, that amount would have been set off against the debt he says
    that he was still owed, leaving the respondent with an additional $25,000 to
    pay the appellant on top of the $440,202.65.

[11]

Common sense dictates that the parties knew that
    the Offer to Settle was an offer to settle all outstanding issues  the
    terminology used in the offer itself  and that the $280,000 equalization
    payment was built into the resolution. Beyond common sense, we accept the
    motion judges other stated reasons for why this was so.

Disposition

[12]

The appeal is dismissed.

[13]

The parties are encouraged to agree upon costs.
    If they cannot do so, we will take written costs submissions of no more than
    three pages in length. The respondent will provide submissions no later than
    10:00 a.m. on March 4, 2021. The appellant will provide submissions no later
    10:00 a.m. on March 5, 2021.

Fairburn
    A.C.J.O.

B. W.
    Miller J.A.

B.
    Zarnett J.A.


