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May 16, 2012

Enforcing Settlement

Amyotte v. Wawanesa, [2012] ONSC 2072 (S.C.J.)

The issue on this motion was whether a settlement entered into by counsel could be upheld.

The defendant served a r. 49 offer to settle the plaintiff's accident benefits claim shortly before trial. The offer was sent by email in the following terms: "Payment to the Plaintiff of the sum of $15,000.00 inclusive of interest in full and final settlement of all accident benefits claims of the Plaintiff and all claims as against the Defendant in the within action" and partial indemnity costs. Plaintiff counsel responded with “We accept the offer and the action is settled…”. Defence counsel asked plaintiff counsel what was wanted for costs. Plaintiff counsel e-mailed back “15 k all in”. The next day, defence counsel e-mailed “How would you like the settlement broken down for Release purposes? $10,000 past and future rehab and $5,000 for costs and disbursements?” The reply was “Yes thx”.

Upon receiving a release and settlement disclosure notice from the defendant, the plaintiff took the position that the settlement did not include all accident benefits and that she was entitled to rescind the offer under the rescission provisions of the SABS. The Court disagreed, holding that if the plaintiff meant to restrict the settlement she should have done so rather than unconditionally accepting it. Once she chose to pursue litigation she could not avoid the consequences of r. 49 by falling back on the rights afforded by the SABS.

The settlement was upheld.

- Tara Pollitt

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