



COURT OF APPEAL FOR ONTARIO

CITATION: Crawford v. Mori, 2017 ONCA 899

DATE: 20171122

DOCKET: C63888

Sharpe, Epstein and van Rensburg JJ.A.

BETWEEN

Mark Crawford, Nancy Crawford, Scott Crawford,
    Erin Osinchuk, Chad Osinchuk, Heather Jay Jayanetti, and Haren Jayanetti

Plaintiffs (Respondents)

and

Richard Mori, also known as Richard Wayne Mori,
    Bonnie Mori, also known as Bonnie Mary Mori, RBM Golden Consulting Ltd.,
    1093942 Ontario Limited, New Cordova Mines Ltd., Gold Insight Resources 2003
    Limited, Gold Insight Resources 2004 Ltd., Gold Insight Resources (2005) Inc.,
    and Golden Millennium Health Technology Inc.

Defendants (Appellants)

Robert Burns and John Broderick, for the appellants

Brett D. Moldaver, for the respondents

Heard and released orally: November 20, 2017

On appeal from the order of Justice M. McKelvey of the Superior
    Court of Justice, dated May 15, 2017.

REASONS FOR DECISION

[1]

The appellants appeal an order enforcing a settlement agreement.

[2]

The respondents commenced this action claiming specific performance of
    an agreement to purchase shares and substantial damages for various causes of
    action including misrepresentation. They alleged that they had invested $283,500
    to purchase shares in a company controlled by the appellants and that the
    shares had never been delivered.

[3]

On September 9, 2016, the appellants made a written offer to settle the
    action for $428,537. The respondents responded on October 5, 2016 with an offer
    to settle for $900,000. On November 23, 2016, the appellants solicitor wrote
    to the respondents solicitor indicating that the shares the respondents claimed
    had been registered in their names. On December 22, 2016, the respondents
    counsel accepted the September 9, 2016 offer.

[4]

In our view, the motion judge did not err by finding that a settlement
    had been reached and by enforcing the settlement agreement.

[5]

It was open to the motion judge to find that the September 9, 2016 offer
    was governed by r. 49 and that accordingly, it was not terminated by the
    respondents counter-offer. It was also open to the motion judge to conclude
    that the letter indicating the shares had been registered in the names of the
    respondents did not withdraw or put an end to the September 9, 2016 offer.

[6]

The appellants central submission is that enforcing the settlement will
    result in double recovery. There was no evidence as to when the shares had been
    registered, in particular, whether they had been registered before or after the
    September 9, 2016 offer. The November 23, 2016 letter made no reference to the
    September 9, 2016 offer and did not withdraw that offer. Nor was there any
    evidence of the actual value of the shares. One of the allegations made by the
    respondents was that the appellants had diluted the value of the shares. As the
    motion judge observed, the respondents claim went well beyond specific
    performance for the delivery of the shares.

[7]

We agree with the motion judge that the appellants failed to lead
    evidence to establish double recovery. We do not accept the submission that
    taking this record as a whole, it arises by necessary implication that the September
    9, 2016 offer was withdrawn or that enforcing the settlement would result in
    double recovery.

[8]

Accordingly, the appeal is dismissed.

[9]

Costs to the respondents fixed at $6,500 plus HST, which is inclusive of
    disbursements.

Robert J. Sharpe
    J.A.

Gloria
    Epstein J.A.

K.
    van Rensburg J.A.


