At what point does a settlement become final? Is it when the parties agree on all of the terms of the settlement and sign a written agreement, such as minutes of settlement? Or at an earlier time?
In the recent decision of Cox v Baker, 2019 ONSC 2859, the court was asked to make a determination as to whether a binding settlement had been reached. The litigation involved an inter vivos trust (the “Trust”) settled by a mother for the benefit of her two daughters and subsequent generations. After the death of Donna (the second to die of the two daughters), the three living beneficiaries were Donna’s sons, Brett and Brent, and her niece, Marnie. Brett was the sole trustee after Donna’s death.
Prior to her death, Donna was living at a house that was owned by the Trust (the “Property”), with her husband, John. About a year after Donna’s death, in March 2018, John brought an application against Brett, as trustee of the Trust, and against all three of the beneficiaries, personally, seeking, among other things, an interest in the Property by way of resulting and/or constructive trust.
In May 2018, John and Brett ran into each other at Donna’s gravesite. They discussed John’s application, John advised Brett that he would call his lawyer and withdraw his application, and the two shook hands. Thereafter, a number of emails were exchanged between counsel for John, and counsel for Brett, Brent, and Marnie. It appeared that the parties had reached an agreement that John would withdraw his application, without costs, provided that all parties sign a mutual release. However, John subsequently took the position that there was never a binding settlement agreement, as the parties had not agreed on the specific terms of the mutual release. Brett, Brent, and Marnie brought an application to enforce the settlement.
Ultimately, the court concluded that a binding settlement had been reached. Some of the key factors were, in the court’s finding, that there had been a mutual intention between the parties to create a legally binding contract, and that all essential/material terms had been agreed upon. The court also noted that the agreement had been reduced to writing by way of the email exchanges between counsel.
The court specifically considered whether the fact that the parties had not yet agreed on the specific wording of the mutual release was necessary to create a binding settlement. After reviewing the case law, the court concluded that, unless there is some indication that the settlement was conditional on the parties also agreeing on the language for a release, it is not required that the parties agree on the specific terms of such a release before there will be said to be a binding settlement agreement.
The court also commented on the importance of the principle of finality, which demands that settlements entered into with the assistance of legal counsel be upheld, as it is a matter of good public policy to encourage settlement. Settlements of this kind should be upheld other than in exceptional cases, which the present case was not.
This decision is an important reminder that, if the parties have reached an agreement on all essential terms, even if the more minor details have not been agreed upon, and the minutes of settlement and/or release have not been finalized and executed, a binding settlement may still exist. Parties should be aware that once a binding settlement has been reached (which could happen prior to signing minutes of settlement), they cannot simply change their minds. It is important to keep this in mind at all stages of a negotiation, and to be alert as to when it could be said that all essential terms have been agreed upon.
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This weekend marks the end of the 105th Tour de France. This year’s race has been full of controversies, first as a result of allegations of doping by pre-race favourite and four-time winner Chris Froome (and a related threatened cyclist strike) and subsequently ranging from disqualification of one cyclist for punching another to the inadvertent tear-gassing of cyclists by French police.
This spring, news surfaced regarding a settlement negotiated in respect of the claims against controversial cycling figure Lance Armstrong. Armstrong’s former teammate, Floyd Landis, had commenced proceedings against him in 2010 under the False Claims Act. The United States government became involved in the fraud proceedings in 2013 after Armstrong admitted to using performance-enhancing drugs after years of public denial.
The litigation commenced by Landis was settled earlier this year. Terms of settlement were reported to involve a payment by Armstrong of $5 million (of the $100 million claimed against him), as well as a payment to Landis of $1.65 million in legal fees. Accordingly, Landis’ one-quarter share in the settlement payment is less than what he will receive in legal fees.
It is not unusual in our work to see settlement terms involving the payment of one or more party’s legal fees as part of or in addition to a settlement payment. Especially where litigation spans the better part of a decade, the legal fees incurred can rival or exceed the quantum of the settlement payment itself and may form an important part of negotiations.
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In the recent decision of Lewicki Estate v. Nytschyk Estate, 2016 ONSC 7459, the Ontario Superior Court of Justice enforced a settlement that was incomplete when one of the parties died. In this case, Ms. Lewicki (“Cherie”) commenced a claim for dependant’s relief against the estate of her late common law spouse (“Joseph”). Cherie and Joseph had a long-standing common-law relationship when he died intestate in 2013. The house in which the two lived for most of their relationship was held in Joseph’s name alone. Cherie had a potentially large dependant’s support claim as well as a claim to the house based on resulting or constructive trust. The parties agreed to a settlement providing that the Estate would transfer title to the disputed property to Cherie. However, Cherie died unexpectedly at age 52, prior to the transfer.
When is a settlement final and binding?
Even though Minutes of Settlement had not been signed, the court applied the decision of the Ontario Court of Appeal in Olivieri v Sherman to find that the parties had entered into a binding deal and granted the net proceeds of the sale of the disputed property to the common law spouse’s Estate.
A settlement agreement is a contract. Like other contracts, the settlement does not need to be in one signed document. Rather, the parties must have “(a) had a mutual intention to create a legally binding relationship, and (b) reached agreement on all of the essential terms of the settlement.”
In this case, a binding agreement was found in the correspondence between counsel.
Counsel for Joseph’s estate proposed a settlement that Cherie accepted in principle. Counsel for the estate subsequently prepared and sent draft minutes to Cherie’s counsel. When the estate did not hear back, counsel for the estate sent an email to Cherie’s counsel threatening to bring a motion to enforce their settlement agreement, yet after Cherie’s death, counsel for the estate claimed there had never been a final settlement agreement. Although counsel on both sides were making additional proposals for the minutes of settlement when Cherie died, the court found these were not essential terms.
Encouraging settlement as public policy
The court has discretion not to enforce a settlement. The court chose not to use its discretion to set aside the agreement in this case as a matter of public policy. The court held that settlement of litigation is encouraged and so settlement agreements should be enforced where there is a valid contract. The court supports settlements, which reduce costs and provide certainty to parties to litigation. In this case, the court found no reason that the settlement should not be enforced.
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In Biancaniello, Romano, Prinova Technologies Inc. v. DMCT LLP, Collins Barrow, a recent decision by the Divisional Court, the dismissal of a motion for summary judgment was upheld despite the presence of a Release that appeared to bar the action in question. The Defendants sought summary judgment on the basis that the action was barred by execution of a broadly-worded Release as part of the settlement of a prior action between the same parties.
Under the Release previously signed by the Plaintiffs in 2008, they agreed to release and discharge the Defendants:
“of and from all manner of actions, causes of actions, suits, debts, duties, accounts, bonds, covenants, contracts, 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 [the Defendants] to [the Plaintiffs] 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” (para 7).
The motions judge determined that the Release did not bar a negligence claim that had arisen in 2011, three years after the Release had been executed, notwithstanding its broad language and seemingly all-encompassing nature. The Ontario Superior Court of Justice had noted that the alleged negligence of the Defendants had not yet been adjudicated and should not have been subject to the Release that referred to claims “existing to the present time“, being 2008.
The Divisional Court recognized that a negligence claim may have been contemplated by the parties at the time that the Release was executed. However, the nature of the negligence claim (and the significant tax liabilities resulting from same, in the approximate amount of $1,200,000.00) was unknown by the parties at the time of the 2008 settlement. Justices Wilton-Siegel, Corbett, and Baltman found that the negligence claim was not barred by the Release, as it lacked any reference to the relevant transaction, language specifically releasing against claims resulting from “potential or undiscovered negligence”, and was limited in its scope through the reference to causes existing only at present, when the damages, in fact, resulted at a later time.
Although the motion for summary judgment and subsequent appeal did not involve an estate or trust, this decision is nevertheless relevant within the context of estate litigation, in which so many disputes are settled outside of court and settlements formalized by execution of Minutes of Settlement and Full and Final Mutual Releases. When assisting clients in settling disputes, it is important to adequately consider claims that could potentially arise in the future and whether the terms of the release should explicitly refer to and waive such causes of action.
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