



COURT OF APPEAL FOR ONTARIO

CITATION: Cook v. Joyce, 2017 ONCA 49

DATE: 20170120

DOCKET: C62010

Juriansz, Benotto and Brown JJ.A.

BETWEEN

Avie Cook

Plaintiff (Respondent)

and

Ronald V. Joyce

Defendants (Appellant)

Peter J. Osborne and Chris Kostopoulos, for the
    appellant

Avie Cook, acting in person

Heard: October 13, 2016

On appeal from the order of Justice Paul M. Perell of the
    Superior Court of Justice, dated March 30, 2016, with reasons reported at 2016
    ONSC 2164.

Brown J.A.:

OVERVIEW

[1]

The respondent, Avie Cook, sues the appellant, Ronald Joyce, seeking
    damages for an alleged sexual assault. Ms. Cook alleges Mr. Joyce touched her
    in a sexual manner without her consent on the morning of May 19, 2011 at his
    home. As well, Ms. Cook alleges Mr. Joyce slandered her by telling others her
    complaints of a sexual assault were false.

[2]

Mr. Joyce defends the action on several grounds: (i) he denies sexually
    assaulting Ms. Cook; (ii) he contends the parties settled Ms. Cooks sexual
    assault allegations in 2011, before she started the present 2013 action; (iii)
    he takes the position her sexual assault claim is barred by the two-year
    prescription period in the
Limitations Act, 2002
, S.O. 2002, c. 24,
    Sched. B (the Act)
;
and (iv) he pleads the statements he made to
    others about Ms. Cook were true.

[3]

Mr. Joyce moved for summary judgment dismissing Ms. Cooks action. The
    motion judge granted the motion in part, dismissing Ms. Cooks action for
    slander. However, the motion judge refused to dismiss the sexual assault claim,
    for three reasons.

[4]

First, the motion judge held Mr. Joyce had not proved the parties
    settled Ms. Cooks sexual assault claim in late 2011 and early 2012. In
    addition to dismissing that part of Mr. Joyces summary judgment motion based
    on his settlement defence, the motion judge granted partial summary judgment to
    Ms. Cook dismissing Mr. Joyces settlement defence.

[5]

Second, the motion judge concluded the discoverability date for Ms.
    Cooks claim under the Act was June 21, 2011, when she first met a lawyer to
    discuss her claim. As a result her May 31, 2013 sexual assault action was not
    statute-barred. He went on to grant partial summary judgment to Ms. Cook
    dismissing Mr. Joyces limitation period defence.

[6]

Finally, the motion judge concluded the enactment of the
Sexual
    Violence and Harassment Action Plan Act (Supporting Survivors and Challenging
    Sexual Violence and Harassment)
, 2016
, S.O. 2016, c. 2 (the
    Amending Act) following the hearing of the summary judgment motion had the
    effect of removing any limitation period for Ms. Cooks sexual assault claim
    unless hers was a proceeding that was settled by the parties and the
    settlement is legally binding. In light of his conclusion the parties had not
    settled the proceeding, the motion judge held no limitation period applied to Ms.
    Cooks sexual assault claim.

[7]

For the reasons that follow, I would allow Mr. Joyces appeal and set
    aside the motion judges finding that the parties did not settle the action 
    his conclusion rested on palpable and overriding errors of fact and a palpable
    and overriding error in applying the law to the facts.

[8]

Mr. Joyce asks this court to substitute a finding that the parties in
    fact settled Ms. Cooks sexual assault claim. Given the significant credibility
    disputes on material issues in this proceeding, including whether the parties
    reached an oral settlement agreement, this is not an appropriate case for this
    court to exercise its fact-finding powers under s. 134(4) of the
Courts of
    Justice Act
, R.S.O. 1990, c. C.43. I conclude a genuine issue requiring a
    trial exists as to whether the parties settled Ms. Cooks sexual assault claim.
    I would direct that claim proceed to trial.

[9]

I would also grant Ms. Cooks request to set aside the dismissal of her
    slander claim.

THE STRUCTURE OF THESE REASONS

[10]

These reasons are divided into four parts. Part I examines the Amending
    Act and explains why review of the motion judges limitation period analysis should
    focus on whether Ms. Cooks proceeding was settled by the parties and the
    settlement is legally binding. Part II explains how the motion judge erred in
    his analysis of whether the parties had reached a settlement. Part III then
    considers the remedial options available to this court and explains why the
    sexual assault claim should proceed to trial. Finally, Part IV considers the
    motion judges dismissal of Ms. Cooks slander claim.

PART I: THE
LIMITATIONS ACT
ISSUE

A.

The issue stated

[11]

Before the motion judge, Mr. Joyce argued Ms. Cooks sexual assault
    action was statute-barred. He contended she discovered her claim on the day of
    the alleged assault, May 19, 2011, but did not issue a notice of action until
    May 31, 2013  more than two years after the alleged assault.

[12]

A change in the law complicated Mr. Joyces limitation period argument. He
    initiated his summary judgment motion in June, 2015. The motion judge heard the
    motion on February 23 and 24, 2016. He reserved his decision. The Amending Act
    came into force on March 8, 2016. The motion judge released his reasons on
    March 30, 2016.

[13]

The motion judge dismissed the motion, rejecting the appellants
    limitations defense. He held that Ms. Cook did not gain a substantial awareness
    of the harm she had suffered until she spoke with a lawyer, Michael Miller of
    the Dickinson Wright LLP firm, on June 21, 2011. The two-year limitation period
    did not start to run until that date, with the result that Ms. Cooks May 31,
    2013 action was not statute-barred. As well, the motion judge held no
    limitation period applied to Ms. Cooks sexual assault claim by reason of the
    enactment of the Amending Act.

[14]

On this appeal, Mr. Joyce advances two arguments. First, he submits the changes
    the Amending Act made to s. 16 of the
Limitations Act, 2002
should not
    apply to this proceeding. He argues a change in the law made while a decision
    is under reserve should not prejudice a party, in accordance with the principle
    of
actus curiae neminem gravabit
, or what the court does ought not to
    prejudice a litigant. Mr. Joyce contends the motion judge improperly failed to
    exercise his discretion to grant an order
nunc pro tunc
so that his
    reasons spoke from the date of the hearing, prior to the enactment of the
    Amending Act.

[15]

Second, Mr. Joyce renews his submission that Ms. Cook discovered her
    claim no later than May 27, 2011, when she first contacted the Dickinson Wright
    law firm, so her action is statute-barred.

B.

Analysis

[16]

I would not accept Mr. Joyces submissions.

[17]

The Amending Act contains clear provisions that foreclose the granting
    of an order
nunc pro tunc
.
As I will explain, the new
    limitation-free regime for sexual assault cases applies to the present
    proceeding unless it was settled by the parties and the settlement is legally
    binding, as provided by the new s. 16(1.2)(b) of the
Limitations Act, 2002
.
    Therefore, it is not necessary to address the appellants submissions regarding
    the motion judges discoverability analysis.

[18]

When the parties argued the summary judgment motion in February,
    2016, the
Limitations Act, 2002
contained two limitation period regimes
    for sexual assault claims, the application of which turned upon the nature of
    the relationship between the plaintiff and the defendant. First, under s.
    16(1)(h), no limitation period applied to a sexual assault claim against a
    person in a position of trust or authority over the complainant or on whom the
    complainant was dependent. Second, for all other sexual assault claims, the
    ordinary two-year limitation period applied. However, pursuant to s. 10(1), time
    did not run while the complainant was incapable of commencing a proceeding
    because of her physical, psychological or mental condition; s. 10(3) presumed the
    person was incapable of commencing the proceeding earlier than the date it was
    commenced, unless the contrary was proved.

[19]

Upon coming into force on March 8, 2016, Schedule 2 to the Amending Act
    significantly changed the provisions of the
Limitations Act, 2002

concerning
    sexual assault claims. Section 16(1)(h) of the Act was amended to provide there
    is no limitation period in respect of a proceeding arising from a sexual
    assault. Section 10 of the Act dealing with a plaintiffs capacity was
    repealed.

[20]

The new ss. 16(1.1) and (1.2) gave retroactive effect to the removal of any
    limitation period for a proceeding arising from a sexual assault:

16. (1.1) Clauses (1) (h), (h.1) and (h.2) apply to a
    proceeding whenever the act on which the claim is based occurred and regardless
    of the expiry of any previously applicable limitation period, subject to
    subsection (1.2).

(1.2) Subsection (1.1) applies to a proceeding that was
    commenced before the day subsection 4 (2) of Schedule 2 to the
Sexual
    Violence and Harassment Action Plan Act (Supporting Survivors and Challenging
    Sexual Violence and Harassment)
, 2016
came into force, unless
    the proceeding,

(a) was dismissed by a court and no further appeal is
    available; or

(b) was settled by the parties and the settlement is legally
    binding.

[21]

In his reasons, the motion judge engaged in a lengthy analysis about
    whether the two-year limitation period had expired before Ms. Cook commenced this
    action on May 31, 2013. The enactment of the Amending Act prior to the release
    of his reasons rendered that analysis unnecessary. Discoverability no longer is
    part of the limitation period regime governing sexual assault claims. The no
    limitation period regime applies to a proceeding whenever the act on which
    the claim is based occurred and regardless of the expiry of any previously
    applicable limitation period, subject to the transitional rules contained in
    s. 16(1.2).

[22]

By enacting ss. 16(1.1) and (1.2), the Legislature expressly addressed
    the application of the amendments to a proceeding, such as Ms. Cooks, which was
    commenced before March 8, 2016. The no limitation period regime applies to
    Ms. Cooks action unless (i) her proceeding was dismissed by a court and no
    further appeal is available or (ii) it was settled by the parties and the
    settlement is legally binding.

[23]

By March 8, 2016, Ms. Cooks 2013 action for sexual assault had not been
    dismissed by a court with no further appeal available. Taking the decision
    under reserve made no difference. Even had the motion judge released a decision
    dismissing the action on the last day of the hearing, February 24, 2016, the
    time for an appeal to this court would not have expired before March 8, 2016. Consequently,
    Ms. Cooks sexual assault action would not be subject to any limitation period unless
    Mr. Joyce could demonstrate the proceeding was settled by the parties and the
    settlement is legally binding.

[24]

Although clearly by March 8, 2016 the parties had not settled the
    proceeding Ms. Cook initiated with her May 31, 2013 notice of action, Mr. Joyce
    takes the position that the subject-matter of the 2013 proceeding was settled before
    March 8, 2016. I accept that if Mr. Joyce can establish the parties concluded such
    a settlement, he is entitled to the protection of s. 16(1.2)(b) of the
Limitations
    Act, 2002
.
In the circumstances of this proceeding then, the
    enactment of the Amending Act effectively reduces Mr. Joyces limitation period
    and settlement defences to a single issue  is there a genuine issue requiring
    a trial that the parties settled Ms. Cooks allegations of sexual assault
    before March 8, 2016?

PART II:      THE SETTLEMENT ISSUE

[25]

Mr. Joyce submits there is no genuine issue requiring a trial regarding
    a settlement. He argues the parties reached an oral settlement agreement in
    November 2011, and the motion judge erred in finding they had not.
    Consideration of this submission requires a review of the evidence concerning
    the settlement issue.

A.

The evidence regarding a settlement

2011

[26]

As mentioned, Ms. Cook alleges Mr. Joyce sexually assaulted her on May
    19, 2011.

[27]

Ms. Cook and Mr. Joyce met in about 2006. At the time, she was 25 years
    old; he was 75 years old. They developed a friendship; it occasionally involved
    sex. In early 2010 the sexual relationship ended, but they continued to see
    each other.

[28]

Ms. Cook went to Mr. Joyces house on May 18, 2011, with the understanding
    she would stay the night in a guest bedroom and then drive him to a medical
    appointment the following day.

[29]

There is no dispute that on the morning of May 19, Mr. Joyce went into
    the guest bedroom to wake up Ms. Cook. What happened next is highly contested.
    Mr. Joyce states he went into the guest bedroom, touched Ms. Cook in an attempt
    to wake her, but she did not respond. He left the room, got dressed, and drove
    to the medical appointment. On Ms. Cooks version of events, Mr. Joyce touched
    her in a sexual manner, at which point she screamed, he left, and Ms. Cook
    ultimately called her mother to pick her up.

[30]

Ms. Cook thereafter consulted the Dickinson Wright law firm, meeting
    with Mr. Miller on June 21, 2011. On July 21, Mr. Miller wrote Mr. Joyce enclosing
    a draft statement of claim in which Ms. Cook alleged Mr. Joyce had sexually
    assaulted her the previous May. In the draft claim, Ms. Cook sought general
    damages of $1 million and additional damages of $600,000. In his covering
    letter, Mr. Miller wrote that it is our position at this time we would like to
    meet with you and your lawyer in an attempt to resolve this matter amicably.

[31]

In his affidavit filed on the summary judgment motion, Douglas Burns,
    Mr. Joyces lawyer, deposed he spoke to Mr. Miller in late July to advise Mr.
    Joyce was prepared to forgive a number of loans Mr. Joyce had advanced to Ms.
    Cook  totalling at least $100,000  and pay a further sum of $25,000 in full
    and final satisfaction of all matters.

[32]

Mr. Burns followed-up with a letter to Mr. Miller of August 17 asking
    for a response. Mr. Miller replied on August 19, stating Ms. Cook was not
    prepared to accept your clients offer of settlement and is seeking damages as
    set out in the draft Statement of Claim.

[33]

That elicited the following response from Mr. Burns: Mr. Joyce has
    instructed me to prepare and issue a Claim for the $150,000 that Ms. Cook
    borrowed from him to support her lifestyle while she pursued an earlier Court
    action. Mr. Joyce issued a statement of claim on August 15, 2011 seeking repayment
    of monies he had loaned Ms. Cook (the Loan Action), which he alleged totalled
    $150,000. He did not serve the claim on her at that time.

[34]

On August 23, Mr. Miller wrote to Mr. Burns advising he was meeting
    with my client later this week and will respond to your aforementioned letter
    early next week.

[35]

A month later, on September 23, Mr. Burns wrote to Mr. Miller advising
    Ms. Cook had been in contact with Mr. Joyce on more than one occasion, to
    discuss this matter. Mr. Burns advised Mr. Joyce remained prepared to forgive
    the money owing to him, and also make tantamount to a charitable contribution,
    because of his past friendship with your client.

[36]

Mr. Burns wrote again on September 28 advising your client had some
    discussions with Mr. Joyce. It seems to me that this matter should be resolved.
    I think we have made a very generous offer.

[37]

Subsequent calls from Mr. Burns to Mr. Miller went unreturned. On
    October 14, Mr. Burns wrote again stating: Ms. Cook continues to call Mr.
    Joyce, usually later in the evening, and it seems that she is requesting
    another loan. This issue arose when Mr. Joyce advised your client that he was
    not going to make a further loan to her, and that remains his position. As of
    that date, Mr. Joyce had not yet served his Loan Action statement of claim on
    Ms. Cook, with Mr. Burns again inquiring whether Mr. Miller had instructions to
    accept service of the claim.

[38]

There is no dispute several telephone conversations took place directly between
    the parties in November, 2011. What they discussed is in dispute.

[39]

Mr. Joyce deposed Ms. Cook wanted to resolve her allegations and the
    outstanding loan. He stated they reached an oral, with prejudice settlement by November
    21 under which Ms. Cook agreed to stop pursuing and advancing her allegations about
    the events on the morning of May 19. In return, Mr. Joyce would forward to her
    $50,000 to help her with her legal expenses and other financial liabilities; he
    would forgive the loan.

[40]

On his cross-examination, Mr. Joyce gave various evidence about the
    events surrounding the settlement: a final settlement was reached in a
    conversation with Ms. Cook on November 21, 2011; the settlement was the result
    of a mutual agreement between Ms. Cook and Mr. Joyces lawyer; he could not
    recall whether the settlement was the product of a combination of calls and
    in-person meetings; he did not know whether he told his lawyer the terms of the
    settlement; and the settlement was negotiated between the lawyers.

[41]

On her part, Ms. Cook deposed that Mr. Joyce offered to pay her $250,000
    in September, but she declined his offer. In her November calls with Mr. Joyce,
    she requested $50,000 to cover some costs she had incurred because of him, and
    Mr. Joyce agreed. She did not view the payment as a settlement.

[42]

Ms. Cook denied the parties had reached a settlement under which Mr.
    Joyce would forgive the outstanding loan. Ms. Cook took the position that Mr.
    Joyce had forgiven that loan before the May 19 incident had occurred. In support
    of that position, Ms. Cook relied on a surreptitious recording she made of a
    telephone conversation she had with Mr. Joyce about one hour after the May 19 incident,
    when Mr. Joyce was on his way to his medical appointment. According to the transcript
    of the recording, Mr. Joyce said to her: Ive loaned you a hundred thousand
    plus dollars and, uh, and Ive forgiven that loan.

[43]

On November 23, 2011 Mr. Burns wrote Mr. Miller:

I have been advised that our respective clients have met and
    settled their differences. Under the circumstances I would propose to close my
    file. As I have not had the courtesy of a response from you to my earlier
    telephone messages or my correspondence, I anticipate that you may have closed
    your file as well.

[44]

Mr. Miller did not reply to that letter.

[45]

There is no dispute that Mr. Joyce requisitioned from his company,
    Jetport Inc., a cheque in the amount of $50,000 payable to Mr. Miller at the
    Dickinson Wright law firm. Mr. Joyce produced his handwritten note to his
    assistant requisitioning the cheque on which he wrote: Re Avie Cook Paid in
    Full. On the cheque stub appeared the notation: Re: Avie Cook Account paid in
    full.

[46]

Mr. Joyce sent the $50,000 cheque to Ms. Cooks lawyer; he did not
    transmit the funds through his own lawyer.

[47]

On cross-examination, Ms. Cook refused to waive privilege over her
    communications with her various counsel. However, she did produce a December 9
    email sent to her from Mr. Millers office that read:

We have received a cheque from Jetport Inc in the amount of
    $50,000.00 Re: Avie Cook PAID IN FULL
along
with reference to Invoice dated November 25/11. Please provide your
    instructions.

[48]

No such invoice was placed before the court below or this court.

2012

[49]

Ms. Cook acknowledged that on January 6, 2012 her mother picked up a
    cheque from Dickinson Wright in the amount of $49,478.87, which Ms. Cook
    deposited into her bank account.

[50]

On February 13, the Superior Court of Justice gave notice to Mr. Joyce
    that his Loan Action would be dismissed as abandoned unless it was set down for
    trial. Mr. Joyce did not set the Loan Action down for trial. On April 11, 2012 the
    Loan Action was dismissed as abandoned. It appears Mr. Joyce never sent or
    served his statement of claim on Ms. Cook or her counsel. There is no evidence
    Mr. Joyce or his counsel advised Ms. Cook or her counsel about the
    administrative dismissal of his Loan Action.

2013

[51]

Mr. Joyce deposed he thought they had resolved the matter amicably. They
    resumed their friendship. He acknowledged going out for dinner with Ms. Cook in
    January, 2013. He also stated that in April, 2013, at her request, he directed
    his executive team to meet with Ms. Cook and others to consider an investment
    in an equity fund for which Ms. Cook was soliciting investors. Mr. Joyce did
    not make an investment.

[52]

According to Ms. Cook, she went out for dinner or drinks with Mr. Joyce
    at least twice in early 2013. Statements made on those occasions ground her
    claim for slander.

[53]

Ms. Cook commenced this action on May 31, 2013, some 16 months after she
    had received the $50,000 Mr. Joyce sent her lawyers. She filed her statement of
    claim at the end of June.

[54]

Discussions then ensued between the parties. By then, Ms. Cook had retained
    new counsel  Clayton Ruby and Brian Shiller. On July 12, 2013 Mr. Burns wrote
    to Mr. Shiller that if Ms. Cook is in fact simply looking for some kind of
    personal satisfaction that might be generated by a formal but confidential
    apology, the same might be available. The parties exchanged drafts of a
    possible form of apology, but reached no agreement.

[55]

Both parties agree that in October, 2013 a meeting took place at the
    Ritz Carlton Hotel in Toronto between Mr. Joyce and his lawyer, Mr. Burns, on
    the one hand, and Ms. Cooks legal advisors, Messrs. Ruby and Shiller, on the
    other.

[56]

Although she was not present in the room where her lawyers met with
    Messrs. Joyce and Burns, Ms. Cook deposed Mr. Shiller came back and forth to
    ask me if I would accept multiple offers. No resolution was reached at that
    time.

[57]

On his cross-examination, Mr. Joyce stated, in respect of his meeting
    with Mr. Ruby: we again offered just for her to go away. Mr. Joyce denied
    offering Ms. Cook $1 million to settle her lawsuit; he said there was just a
    hypothetical raised by Mr. Burns whether $1 million would settle the lawsuit.

[58]

Finally, Ms. Cook deposed that on October 23 she met with her lawyers
    who told her Mr. Joyce was offering $1 million to settle her claim. Ms. Cook
    produced an October 24, 2013 letter to her from Mr. Shiller which stated, in
    part:

We had you come to the office on short notice and we are
    grateful that you were able to attend so quickly. The reason for the meeting
    was that we were presented with an offer of settlement in your case for
    $1,000,000. As you will recall, our previous offer was for $7,500,000. At our
    meeting with him, Joyce had responded to that offer with indignation and a
    statement that he would pay $50,000 and no more.

[59]

No resolution was reached. Mr. Joyce then served his statement of
    defence dated October 25, 2013.

B.

The motion judges reasons

[60]

The motion judge rejected Mr. Joyces submission that there was no
    genuine issue requiring a trial as to whether he had settled Ms. Cooks sexual
    assault claim on the basis of the payment of $50,000 and the abandonment of his
    Loan Action. Instead, the motion judge found, as a fact, there was no
    settlement. He concluded that in the fall of 2011 both parties were playing
    tricks on the other, with the result they did not reach a binding settlement.
    Specifically, the motion judge stated, at paras. 79- 81 of his reasons:

I believe the truth to be that both
    Mr. Joyce and Ms. Cook were attempting to play tricks on one another by the
    manner in which they were orchestrating the payment of $50,000, including their
    assiduousness in keeping the lawyers out of it, virtually from the time that
    Mr. Miller wrote his July 2011 demand letter until Ms. Cook deposited almost
    $50,000 in her CIBC bank account.

Mr. Joyces trick was to create a
    hoax settlement because he knew that if he pressed for a real settlement - with
    minutes of settlement, mutual releases, a confidentiality agreement, the
    voiding of the promissory note, and the formal dismissal of his $150,000 action
    already commenced in Hamilton, then Ms. Cook would deny any settlement had been
    reached. Mr. Joyce believed, however, that he could trick Ms. Cook into
    appearing to have settled the claim, precisely because she would not wish to
    formalize any settlement at $50,000, which would not be rich enough for her and
    which settlement would sink Ms. Cooks plans to advance her own career
    prospects with future business dealings with Mr. Joyce or perhaps her
    unrealized ambitions of becoming Mr. Joyces spouse or his well-paid personal
    assistant.

Ms. Cooks trick was
to
deceive Mr. Joyce into thinking he had settled the sexual assault claim, which
    would allow her to resume her business or personal courting of Mr. Joyce with
    the hedge of a fallback sexual assault claim. I believe that she knew that Mr.
    Joyces failure to insist on releases and a confidentiality agreement was his
    Achilles heel that would allow her to argue that there was only a partial
    settlement or no settlement at all.

[61]

After accepting Mr. Joyces submission that the court should draw an
    adverse inference that there was a settlement from Ms. Cooks failure to
    disclose her communications with her lawyers, the motion judge continued, at
    paras. 85- 87:

And there is no adverse inference
    that would change my conclusion that there was no settlement between Mr. Joyce
    and Ms. Cook. There is no getting around the legal fact that a contract
    requires a meeting of minds. Oral contracts are possible, but they are
    obviously more difficult to prove than contracts in writing where the terms of
    the contract are set out so that an objective observer might determine what the
    agreement was. In the immediate case, COOK,
Paid
    in Full
 does not prove a settlement.

It is not necessary to discuss the
    trite law about contract formation. I find as a fact that there was no
    settlement. This finding creates an issue estoppel. I dismiss the branch of Mr.
    Joyces summary judgment motion that relies on the argument that Ms. Cooks
    claim was discharged by a settlement.

If requested, I would grant a partial
    summary judgment to Ms. Cook dismissing Mr. Joyces settlement defence. The
    court does not require a cross-motion for summary judgment when it can decide
    the issue that is the subject matter of the motion for summary judgment:
King
    Lofts Toronto I Ltd. v. Emmons
,

2014 ONCA 215
    (CanLII)
, affirming
2013 ONSC 6113
    (CanLII).

C.

Positions of the parties

[62]

Mr. Joyce submits the motion judge made two main errors in finding the
    parties had not settled Ms. Cooks sexual assault claim. First, the motion
    judge erred in law by treating the search for a meeting of the minds of the
    parties as a purely subjective inquiry, rather than determining objectively
    from the parties overt acts whether they had entered into a binding contract.

[63]

Second, the motion judge made several palpable and overriding errors of
    fact. The most significant error, Mr. Joyce submits, is the motion judges
    finding that both parties were attempting to play tricks on one another by the
    manner in which they were orchestrating the payment of $50,000. Mr. Joyce
    submits there was no evidence to support such findings.

[64]

Ms. Cook submits the motion judge did not err in finding the parties had
    not settled her sexual assault claim.

D.

Analysis

[65]

A settlement agreement is subject to the general law of contract. For a settlement
    agreement to exist, the court must find the parties (i) had a mutual intention
    to create a legally binding contract and (ii) reached agreement on all of the
    essential terms of the settlement:
Olivieri v. Sherman
(2007), 86 O.R.
    (3d) 778 (C.A.), at para. 41. Whether the parties have manifested mutual assent
    to specific terms usually is determined from their overt acts:
Bogue v.
    Bogue
(1999), 46 O.R. (3d) 1 (C.A.), at para. 17. Or, as described by this
    court in
McLean v. McLean
, 2013 ONCA 788, 118 O.R. (3d) 216, at para.
    10, a court must employ an objective approach to the evidence, determining
    what a reasonable observer would have believed the parties intended, taking
    into consideration the evidence of all the parties as well as the surrounding documentary
    evidence.

[66]

Where the parties reduce their bargain to writing, a court determines the
    parties intentions in accordance with the language used in the written
    document, having regard to the objective evidence of the factual matrix:
Salah
    v. Timothys Coffees of the World Inc.
, 2010 ONCA 673, 268 O.A.C. 276, at
    para. 16.

[67]

Oral contracts, such as the one at issue in the present case, present
    different challenges regarding the issues of formation and interpretation. As
    put by Angela Swan and Jakub Adamski in
Canadian Contract Law
,
3rd
    ed. (Markham, ON: LexisNexis, 2012), at §2.27:

There is no general rule against the enforcement of oral
    promises, but the fact that a promise is oral suggests that its making may not
    have been accompanied by anything that sufficiently brought home to the parties
    the significance of what they were doing and, of course, the terms of an oral
    promise are no more certain than the parties recollections of them.

[68]

Mr. Joyce submits the motion judge erred in law by treating the search
    for a meeting of the minds of the parties as a purely subjective inquiry. I
    think that mischaracterizes the motion judges analysis, when viewed in its
    entirety. Although the motion judge did not find it necessary to discuss the
    trite law about contract formation, he did recognize the challenges posed by
    allegations the parties had formed an oral contract: Oral contracts are
    possible, but they are obviously more difficult to prove than contracts in
    writing where the terms of the contract are set out so that an objective
    observer might determine what the agreement was: para. 85.

[69]

The motion judges reasons demonstrate he was alive to the need consider
    evidence about the overt acts of the parties in ascertaining whether they had
    formed an oral contract. Indeed, the motion judge considered the evidence of
    several overt acts: the notation on the $50,000 cheque stub of Avie Cook, PAID
    IN FULL; the transmittal of the cheque to Ms. Cooks lawyer; the cashing of
    the cheque and its deposit into Ms. Cooks personal bank account; and the
    significance of the lack of minutes of settlement and release.

[70]

However, the motion judge held the evidence did not establish the
    formation of an oral settlement contract. Key to that conclusion was his
    finding about the parties subjective intentions  that is, both Mr. Joyce and
    Ms. Cook were attempting to play tricks on one another by the manner in which
    they were orchestrating the payment of $50,000.

[71]

There are two problems with that finding of fact. First, as Mr. Joyce
    submits, there was no evidence to support it. In finding both parties were
    trying to trick each other, the motion judge drew inferences beyond those
    available on the written record before him and engaged in unsupported
    speculation. Those findings were central to the motion judges conclusion that
    there was no meeting of the minds between the parties, and therefore no settlement.
    Consequently, the findings of fact that drove the motion judges conclusion
    that the parties did not reach a settlement were the product of palpable and
    overriding error.

[72]

Second, although the motion judge recognized the need to apply an
    objective analysis to the issue of whether the parties had reached a settlement
    agreement, he ended up focusing and relying on the parties subjective
    intention, thereby misapplying the law to the facts. The motion judge failed to
    heed the caution given by Swan and Adamski, at §4.19:

Intention is always a slippery concept; we all know in general
    what the concept entails but translating that concept into a workable rule or
    into a sure guide for courts or lawyers is not easy. The situations where
    difficulties arise are, of course, those where the offerors intentions are
    either not clear or are at variance with what the offeree understood.
In
    these situations, the law has had to take an objective view: the question will
    be, not what the offeror as a matter of fact subjectively intended, but what a
    reasonable person in the position of the offeree would have understood the
    offeror to have intended by doing what was done or by saying what was said.
[Emphasis added].

[73]

By focusing on whether the parties intended to trick each other, the
    motion judge lost sight of the need to assess their conduct through the lens of
    a reasonable person, taking into account all relevant evidence.

[74]

By way of summary, in concluding the parties did not reach a settlement,
    the motion judge misapplied the law to the facts and made palpable and
    overriding errors of fact. As a result, his decision that the parties did not
    reach a settlement cannot stand and must be set aside.

PART III: SHOULD THIS COURT DECIDE THE
    SETTLEMENT ISSUE?

[75]

Mr. Joyce asks this court to remedy the motion judges errors by dismissing
    Ms. Cooks action. He calls on us to substitute our view of the evidence for
    that of the motion judge and find the parties reached a settlement of Ms.
    Cooks sexual assault claim in November, 2011. Alternatively, Mr. Joyce submits
    this court should direct the action proceed to trial.

[76]

For the reasons that follow, I would not make the findings of fact
    sought by Mr. Joyce. Instead, I would direct Ms. Cooks sexual assault claim
    proceed to trial.

A.

General principles
    about the scope of appellate remedial powers on summary judgment appeals

[77]

On its face, s. 134 of the
Courts of Justice Act
gives this
    court broad powers to remedy errors. This court can make any order or decision
    that ought to or could have been made by the court appealed from: s. 134(1)(a).
    As well, in a proper case, s. 134(4)(a) allows this court to draw inferences
    of fact from the evidence, except that no inference shall be drawn that is
    inconsistent with a finding that has not been set aside. Section 134(4)(b)
    authorizes this court to receive further evidence, by affidavit, transcript, or
    even oral examination before the court, again in a proper case.

[78]

In
Hryniak v. Mauldin
, 2014 SCC 7, [2014] 1 S.C.R. 87, at para.
    2, the Supreme Court of Canada stated a culture shift is required in order to
    create an environment promoting timely and affordable access to the civil
    justice system. While
Hryniak
focussed on the culture shift needed at
    the trial level, the courts comments apply equally to civil appellate courts. An
    appeal courts exercise of its civil remedial powers set out in
CJA
s.
    134 also should promote timely and affordable access to the civil justice
    system.

[79]

But, appeal courts are not trial courts  our relationship to the
    evidentiary record differs markedly from that of courts of first instance. We
    rarely see those who give the evidence. An appeal court sees only words on a
    page, not the live human beings who voice those words. As a result, while this
    court has broad fact-finding powers, the state of the appellate evidentiary
    record and the nature of the issue in dispute influence the degree to which
    this court can and should exercise those powers.

[80]

In civil appeals w
here credibility is not involved or
    where the evidence is predominantly documentary, as a general principle an
    appellate court may make whatever findings are necessary in the interests of
    expediency and finality: Donald Brown,
Civil Appeals
, loose-leaf (November 2016)

(Toronto:
    Carswell, 2013), vol. 2, 6:2230. By contrast, the
existence of
    credibility issues or the thinness of the documentary record usually prompts a
    more cautious approach to fact-finding by civil appellate courts. Brown writes,
    at
6:2321, that:

[W]here an error is such that evidence must be
    weighed and new findings made, a new trial may be preferred
[O]nly where a court can make the findings with confidence will it do
    so ...

[W]here the findings depend on
    assessing credibility...or where a weighing of conflicting evidence is
    required, appellate courts will almost always direct that the matter be
    retried.

[81]

This observation echoes two
comments the Supreme
    Court of Canada made in
Hryniak
about the appropriateness of granting
    summary judgment in a particular case. First, there will be no genuine issue
    requiring a trial when the judge is able to reach a fair and just determination
    on the merits on the motion. This will be the case, in part, when the process
    allows the judge to make the necessary findings of fact: para. 49. Second, the
    evidence on a summary judgment motion need not be equivalent to that at trial,
    but it must be such that the judge is confident that she can fairly resolve
    the dispute: para. 57. These comments apply equally, in my view, to the
    exercise of fact-finding powers by either the summary judgment motion judge or
    by the reviewing appellate court.

[82]

Finally, it is worth recalling what the Supreme Court of Canada said in
Sterling
    Trusts Corp. v. Postma et al
., [1965] S.C.R. 324. At p.
    328, the court stated that
where the appeal record contains evidence on
    a key issue that could point one way or the other, an appellate court risks
    engaging in 
mere guess-work to make either finding from the
    written record; the only tribunal by which such a finding can safely be

made
    is one that has seen and heard the witnesses.

[83]

An appellate court must keep all these considerations in mind when deciding
    whether to exercise its remedial fact-finding powers on an appeal from a summary
    judgment order.

B.

Application to the present case

[84]

The record on whether the parties entered into an oral settlement contract
    in November, 2011 contains conflicting and disputed material facts.

[85]

First, in their affidavits and during their out-of-court cross-examinations,
    both parties gave conflicting evidence about the contents of their discussions
    in November, 2011, as described earlier in these reasons.

[86]

Second, Mr. Joyce states one term of the settlement agreement required
    him to forgive loans he had made to Ms. Cook. She contends Mr. Joyce admitted
    to forgiving those loans before the incident had taken place.

[87]

Third, the documentary record concerning a settlement is thin. The
    parties did not memorialize any oral contract in minutes of settlement or a
    release. Nor did their lawyers jointly confirm a settlement. Mr. Burns letter
    of November 23, 2011 to Mr. Miller advised the parties had settled their
    differences, but did not particularize the terms of any settlement. Mr. Miller
    did not respond to that letter.

[88]

Fourth, there is no doubt Mr. Joyce transmitted $50,000 to Ms. Cook and,
    pursuant to his direction, the cheque stub bore the notation Re Avie Cook paid
    in full. But the parties gave conflicting evidence about the purpose of that
    payment.

[89]

Next, although the court administratively dismissed the Loan Action, Mr.
    Joyce did not serve the statement of claim on Ms. Cook, nor did he communicate
    the fact of the dismissal in writing to Ms. Cook or her counsel. On her part,
    Ms. Cook points to statements Mr. Joyce made in a taped telephone conversation
    shortly after the alleged assault as evidence he had already forgiven the amounts
    he later sued on.

[90]

Finally, conflict also exists in the evidence about the parties conduct
    following the $50,000 payment. Mr. Joyce points to the parties resumption of
    their friendship as evidence they had settled the dispute over the May 19
    incident and were moving on with their lives. On her part, Ms. Joyce contends the
    exchange of draft apologies in the summer of 2013 and subsequent discussions that
    October between the parties and their lawyers demonstrate no final settlement of
    her claim was reached in 2011. She deposed those discussions included a
    settlement offer of $1 million by Mr. Joyce. He disputes some of the facts Ms.
    Cook alleges about those October discussions, and denies he offered $1 million
    to settle her sexual assault claim.

[91]

Summary judgment can operate as a timely, fair, and cost-effective means
    of adjudicating a civil dispute, but it has its limits. Not all civil disputes
    are amenable to a final adjudication on the merits by summary judgment. The
    present summary judgment motion proceeded on an entirely written record, with the
    motion judge declining to hear oral evidence under r. 20.04(2.2). As this court
    has observed, in certain cases adjudication exclusively on an written record
    poses a risk of substantive unfairness:
Baywood Homes Partnership v.
    Haditaghi
, 2014 ONCA 450,120 O.R. (3d) 438, at para 44.

[92]

The more important credibility disputes are to determining key issues,
    the harder it will be to fairly adjudicate those issues solely on a paper
    record. As Benotto J.A. wrote in
Trotter Estate
, 2014 ONCA 841, 122
    O.R. (3d) 625, at para. 55, [i]t is not always a simple task to assess
    credibility on a written record. If it cannot be done, that should be a sign
    that oral evidence or a trial is required.

[93]

In the present case, I cannot see how the issue of whether the parties
    concluded an oral settlement contract can be fairly adjudicated without a trier
    of fact hearing
viva voce
evidence from Mr. Joyce and Ms. Cook. I say
    that for two reasons.

[94]

First, the parties conflicting recollections of their discussions in
    November, 2011, coupled with the thin and equivocal documentary record, do not
    provide an adequate evidentiary foundation to assess the credibility of the
    parties in the absence of
viva voce
evidence on those events.

[95]

Second, the two central issues in the sexual assault component of this
    action require the trier of fact to make credibility assessments of both
    parties: (i) did a sexual assault take place, and (ii) did the parties settle
    Ms. Cooks claim? Just as the parties evidence about whether they concluded a
    settlement stands diametrically opposed, so too does their evidence about what
    happened in the guest bedroom on May 19, 2011. The trier of fact may prefer the
    evidence of one party on the settlement issue, and the other party on the
    sexual assault issue. Or, the trier of fact may prefer the evidence of one
    party on both. However, both issues equally engage the credibility of the
    parties. A fair determination of the action on the merits requires their
    assessment together.

[96]

I recognize that litigants often resort to motions for partial summary
    judgment to decide limitation defences. However, partial summary judgment
    motions operate in tension with the general policy of the rules that separate
    hearings on one or more issues should only occur with the consent of the
    parties: r. 6.1.01. While a useful tool in some cases, partial summary judgment
    motions create their own challenges for the fair adjudication of disputes. For
    example, this court has cautioned that partial summary judgment may not be
    appropriate where it risks duplicative or inconsistent findings:
Canadian
    Imperial Bank of Commerce v. Deloitte & Touche
, 2016 ONCA 922, [2016]
    O.J. No. 6319, at paras. 37 and 38.

[97]

In the present case, granting partial summary judgment on the settlement
    issue would risk an unfair result by placing in watertight compartments the assessment
    of the parties credibility on the two key issues  whether an assault occurred
    and whether they settled their dispute. Since the trier of facts view of the credibility
    of the parties on one issue may well influence his or her view on the other,
    the parties credibility on the two issues should be assessed together, not
    separately.

[98]

Before this court counsel for Mr. Joyce urged that the issue of
    settlement could be disposed of by drawing an adverse inference against Ms.
    Cook who, he submits, selectively disclosed portions of confidential
    communications with her lawyers when doing so supported her position in this
    lawsuit, while refusing to waive privilege over the balance. Therefore, Mr.
    Joyce submits, this court should infer that those portions of her lawyers
    files over which Ms. Cook refused to waive privilege would have afforded evidence
    that her claim was settled.

[99]

In a proper case a trier of fact may draw an adverse inference from a
    witnesss refusal to waive privilege  particularly where that witness has
    otherwise selectively or tactically disclosed privileged communications in a
    manner tantamount to an implied waiver of privilege: see, for example
2405416
    Ontario Ltd. v. 2405490 Ontario Inc.
, 2016 ONSC 3893,

[2016] O.J. No. 3330, at paras. 35-37,
    affd 2016 ONCA 696, [2016] O.J. No. 4922 (without comment on this point);
Morassut
    v. Jaczynski Estate
, 2015 ONSC 502, 330
    O.A.C. 126 (Div. Ct.), at paras. 29-30
. Given the state of the record
    before this court, I would leave it to the court below  whether on a motion
    before trial or at trial - to deal with Ms. Cooks selective waiver of privilege.

[100]

For those
    reasons, I conclude this is not a proper case for this court to exercise its appellate
    fact-finding powers on the issue of whether the parties reached an oral
    settlement agreement of Ms. Cooks claim in November, 2011. Accordingly, I
    would set aside the motion judges dismissal of Mr. Joyces summary judgment motion
    in respect of Ms. Cooks sexual assault claim and his grant of Ms. Cooks
    cross-claim dismissing Mr. Joyces settlement and limitation period defences. I
    would direct that all issues concerning Ms. Cooks sexual assault claim proceed
    to trial.

PART IV: THE RESPONDENTS SLANDER CLAIMS

[101]

In her action,
    Ms. Cook seeks damages for two alleged slanders. She contends the first took
    place on January 11, 2013 at a dinner where she was seated with Mr. Joyce and
    Mr. Brian A. Robbins. She pleads Mr. Robbins stated that he was surprised [Mr.
    Joyce] had invited [Ms. Cook] out for dinner when she had falsely accused him
    of the attack. Ms. Cooks further pleads that Mr. Robbins could only have come
    by such information had Mr. Joyce conveyed it to him.

[102]

Ms. Cook pleads
    the second slander took place in March 2013 when she was having drinks with Mr.
    Joyce and a man named Howard, a restaurant owner. Ms. Cook pleads she
    overheard [Mr. Joyce] state to Howard that he should be wary of [Ms. Cook]
    because she is crazy and had falsely accused him of the attack.

[103]

In her
    affidavits, Ms. Cook adduced evidence in support of her pleaded facts.

[104]

In his statement
    of defence, Mr. Joyce acknowledges that he has called [Ms. Cook] a liar
    because the fact is that she is lying about the occurrence of the sexual
    assault or attack. He pleads the statements Ms. Cook alleges he made to Mr.
    Robbins and Howard were true in substance and therefore do not constitute
    slander. He further pleads Ms. Cook has not suffered any damages for which he
    is responsible.

[105]

The motion judge
    cursorily dismissed Ms. Cooks claim for slander in para. 93 of his reasons:

I do not believe Ms. Cook about these two incidents. Assuming,
    however, that the comments were made as alleged, I find as a fact that there is
    no evidence that they caused any harm or any special damages to Ms. Cook.

[106]

In
Trotter
    Estate
, Benotto J.A. wrote, at para. 55, that [w]here important issues
    turn on credibility, failure to make credibility findings amounts to reversible
    error. Here, the motion judge gave no reasons why he did not believe Ms. Cook
    about these two incidents. The motion judge committed a reversible error by
    rejecting her evidence without explaining why he did so. Also, it is difficult
    to reconcile the motion judges conclusion with Mr. Joyces plea in his statement
    of defence that the statements Ms. Cook alleges he made on the two occasions
    were true in substance.

[107]

In light of the
    procedural history of Mr. Joyces summary judgment motion, I do not regard the
    absence of evidence from Ms. Cook about special damages caused by the alleged
    slanders as a sufficient basis to grant summary judgment dismissing that part
    of her claim, as the motion judge did. Mr. Joyces June 18, 2015 notice of
    motion focused exclusively on Ms. Cooks sexual assault claim. The record for
    the motion was completed by December, 2015. According to Ms. Cook, Mr. Joyce
    first raised the issue of summary judgment in respect of her slander claim in
    his January 2016 factum. Although Ms. Cook is a very sophisticated
    self-represented litigant, I think it was unfair for the motion judge to
    dismiss her slander claim given the state of Mr. Joyces pleading and the focus
    of his motion on the sexual assault claim. I therefore would set aside the
    motion judges dismissal of Ms. Cooks slander claims.

DISPOSITION

[108]

For the reasons
    set out above, I would allow Mr. Joyces appeal and set aside the entirety of the
    motion judges Order dealing with Ms. Cooks sexual assault claim. I would
    allow Ms. Cooks cross-appeal and set aside the dismissal of her slander
    claims. Finally, I would direct that Ms. Cooks action proceed to trial on all
    issues.

[109]

Given the mixed
    success of the parties on this appeal, I would direct the costs of this appeal
    to be in the cause of the action, with the amount, if any, to be assessed by
    the trial judge.

Released: January 20, 2017 ("RGJ")

"David Brown
    J.A."

"I agree. R.G.
    Juriansz J.A."

"I agree. M.L.
    Benotto J.A."


