



COURT OF APPEAL FOR ONTARIO

CITATION: Thoba v. Srajeldin, 2021 ONCA 789

DATE: 20211108

DOCKET: C68944

MacPherson,
    Simmons and Nordheimer JJ.A.

BETWEEN

Ahmad
    Thoba and Leisure Investments Inc.

Plaintiffs
    (Respondents)

and

Ahmad Yousif
    Srajeldin, 1661603 Ontario Inc.

and
    2520336 Ontario Corp. c.o.b. X-Play

Defendants (Appellants)

Pathik Baxi, for the appellants

Robert Hine, for the respondents

Heard: November 3, 2021 by video conference

On appeal from the
    order of Justice Barbara Conway of the Superior Court of Justice, dated December
    14, 2020.

REASONS FOR DECISION

[1]

The appellants appeal from an
    order enforcing the terms of a settlement agreement. At the conclusion of the
    appeal hearing we dismissed the appeal for reasons to follow. These are our
    reasons.

[2]

In December 2019, the respondents
    brought an action for declaratory relief and oppression against the appellants.

[3]

Following settlement negotiations,
    on January 16, 2020, appellants' counsel confirmed in e-mail correspondence
    with respondents counsel that the appellants had agreed to a global settlement
    under which the appellants would buy out the respondents interest in the
    corporate appellants on specified terms.

[4]

Further negotiations ensued. On
    February 2, 2020, the parties' accountant confirmed via e-mail to all counsel
    that a deal had been reached by the personal respondent and the personal
    appellant and his lawyers and listed the details. In an e-mail to all counsel
    the following day, respondents counsel confirmed the details were correct.

[5]

Minutes of settlement were subsequently
    finalized. However, prior to the exchange of signed minutes of settlement, the
    personal appellant advised through counsel that his financing had fallen
    through.

[6]

On a motion to enforce the
    settlement, the motion judge held that the parties had agreed upon the
    essential terms of a settlement as of February 2/3 2020 and that there was
    nothing in the record to indicate that minutes of settlement were required for
    the deal to be legally binding. She rejected the appellant's claim that he did
    not intend to create a legally binding agreement in the absence of minutes of settlement.

[7]

On appeal, the appellants contend
    that the motion judge made a palpable and overriding error in:


i.

finding the settlement was binding despite the fact that executed minutes
    of settlement were not exchanged; and


ii.

finding that the parties had an intention to create a binding agreement
    in the face of the personal appellant's evidence that counsel informed him the
    settlement would not be binding absent the exchange of minutes of settlement;

In the
    alternative, if a settlement is found to exist, the appellants submit that the
    motion judge erred in failing to exercise her discretion to decline to enforce
    the settlement.

[8]

We do not accept these
    submissions. On the record before her, it was open to the motion judge to conclude,
    as she did, that the communications between the parties' representatives
    objectively reflected an enforceable agreement between the parties that was not
    conditional on the exchange of minutes of settlement. The fact that the
    personal appellant may have subsequently instructed his counsel not to release
    his signed minutes of settlement to the respondents or received advice that the
    settlement was not binding in the absence of minutes of settlement does not
    undermine this finding. The motion judge's findings were premised on the
    communications between the parties' authorized representatives.

[9]

Further, we see no error in the
    motion judge's decision not to exercise discretion to decline to enforce the
    settlement. She noted that the agreement reached was not conditional on
    financing and found that the personal appellant had agreed to the original
    terms and that his evidence that he did not intend to create a legally binding
    agreement was an after-the-fact construct. These findings were open to her on
    the record. We see no basis on which to intervene.

[10]

Costs of the appeal are to the
    respondents in the agreed upon amount of $15,000 inclusive of disbursements and
    applicable taxes.

J.C. MacPherson J.A.

Janet Simmons J.A.

I.V.B. Nordheimer
    J.A.


