BRYCE JANS APPLICANT - v. -, 2023 SKKB 218

KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 218 Date: 20 23 10 17 Docket: QBG-SC-00043-2011 Judicial Centre: Swift Current BETWEEN: BRYCE JANS APPLICANT - and - JAY JANS in his capacity as the executor of the ESTATE OF RUSSELL JANS, JAY JANS, TANNIS JANS and 101042508 SASKATCHEWAN LTD. RESPONDENTS Counsel: Tristan Culham for the applicant Scott Hopley for the respondents JUDGMENT RICHMOND J. October 17, 202 3 [ 1 ] Bryce Jans and Jay Jans are brothers. They have been embroiled in litigation for years. The current dispute is with respect to whether interest is payable on an order for costs.

In Jans v Jans (Estate) , 2016 SKQB 275 , 21 ETR (4th) 35 and, the addendum 2017 SKQB 232 at para 78 [ Jans (Estate) ], Barrington-Foote J. (as he then was) rendered his decision after trial and concluded: [78] The plaintiff shall have his costs of this proceeding, calculated on Column 3 of the tariff, including $1,500.00 per day for second counsel at trial, and $3,000.00 for written argument. [ 2 ] The costs arising from litigation were sizeable. Jay Jans had changed counsel following the dismissal of his appeal from the Court of Appeal.

His new counsel was tasked with finalizing the costs and ultimately signed a consent judgment for costs in the amount of $285,000. The $285,000 was paid. Bryce, however, is demanding interest. [ 3 ] By originating application returnable in November 2022, Bryce sought an order pursuant to s. 114 of The Enforcement of Money Judgments Act , SS 2010, c E-9.22 for a binding declaration that the respondents in Jans (Estate) be found responsible for post judgment interest on the cost award from August 24, 2016 which he calculated at $61,684.93.

Bryce also requested costs of the application. [ 4 ] The matter was adjourned a few times to permit Jay to file material. Jay does not take issue with the law as set out in Phipps v Phipps , 2013 SKCA 49 , 414 Sask R 135 which provides interest accrues from the date of the trial judgment. Jay argues the $285,000 agreement to settle costs included interest. [ 5 ] Jay has now responded by bringing his own application on QBG-SC-00043-2011 for equitable rectification and variation of the judgment on costs pursuant to Rules 1-3 and 10-10 of The Queen’s Bench Rules .

Both Jay’s counsel and the court questioned Bryce’s counsel as to whether their firm was in a conflict of interest with respect to arguing this application, but the conflict was denied. The facts are not in dispute. The question is what

interpretation should be given to those facts. Should the order be verified or rectified to include interest as requested by Jay or should there be an order that Jay pay an additional $61,684.93 in interest? [ 6 ] As there is no dispute respecting the law, central to the arguments raised by both is what was the agreement.

[ 7 ] Both Bryce and Jay were represented by senior counsel at the time the consent judgment for costs was negotiated, signed, and issued. Bryce concedes that he was paid the damages portion of the judgment ($3,083,702.17), the pre-judgment interest, and the post-judgment interest on these amounts in October 2020. He was also paid the costs of $285,000 and interest on this amount from December 21, 2020 (the date of the consent judgment) to the date of payment which was made in February 2021.

Bryce was self-represented at the time the payment was made. [ 8 ] In July 2020 a draft bill of costs was sent to Jay’s lawyer enumerating several items which totalled costs at $335,000. No mention was made of interest and the bill of costs form does not prescribe a heading for interest on costs. Several exchanges took place thereafter between counsel and offers and counteroffers were made. Neither party has any recollection that interest formed part of the negotiations. Ultimately, the parties agreed on a figure of $285,000.

Jay explains his understanding of the negotiations to be a lump sum figure in full and final satisfaction. On December 2, 2020, Jay’s counsel sent an email stating, “we have received instructions overnight to agree to $285,000 as the all-in figure for QB costs.” (Affidavit of Jay Jans sworn November 4, 2022, Exhibit “H”). [ 9 ] A consent judgment was sent to Jay’s lawyer and was issued December 23, 2020.

The consent order provided, “The plaintiff further recover from the Estate of Russell Jans, Jay Jans and 101042508 Saskatchewan Ltd (jointly and severally) $285,000 representing costs in the proceeding.” (Affidavit of Jay Jans sworn November 4, 2022 at para. 16). [ 10 ] On January 8, 2021, counsel for Jay forwarded the $285,000 to Bryce’s lawyer stating (Affidavit of Jay Jans sworn November 4, 2022, Exhibit “K”): Please find enclosed a solicitors trust cheque for $285,000 (the “ Funds ”), which is provided to you in full and final satisfaction of the costs payable in the above mentioned legal proceeding.

The funds [ sic ] are provided to you on the following trust conditions, … [Emphasis in original] [ 11 ] The trust conditions included discharging interests from title and filing a memorandum of satisfaction and a return of the funds if there could not be compliance. Bryce’s counsel did not suggest the amount was insufficient or that the trust conditions were unreasonable or unacceptable but simply responded, “…We understand that you received notice from the Jans’ that we are no longer representing them in this matter.

As such, they have asked us to return the cheque enclosed with your letter. …” (Affidavit of Jay Jans sworn November 4, 2022, Exhibit “L”). [ 12 ] Once Jay’s counsel began dealing with Bryce directly, he became aware interest was being demanded.

A letter was then sent directly to Bryce from Jay’s counsel on February 3, 2021 wherein it was stated, after quoting s. 113 of The Enforcement of Money Judgments Act , “Our client’s instructions are accordingly that we tender the amount of the costs judgment together with interest from the date judgment was entered, December 21, 2020, to the date upon which the cheque will arrive in your possession, in full and final satisfaction of the obligations owed pursuant to the costs judgment.” [ 13 ] On February 12, 2021, Bryce and his spouse replied via email saying they too had read the legislation and were of the view that interest on costs would be payable from the date of the original judgment and they were owed close to $70,000 and stated, “We think there would be some cases that see this the same way as we’re saying.” (Affidavit of Bryce Jans sworn October 25, 2022, Exhibit “C”).

Bryce maintains that it was never his understanding that he was waiving interest. [ 14 ] A response was sent from the lawyer that same day saying, “Our instructions are to stand on the amount we have tendered to you as being full payment. So there is no misunderstanding, we specifically did not impose any condition on the cashing of the cheque…” [ 15 ] A further letter was sent on February 16 from Bryce and his spouse which can be summarized by this line, “… can we keep the funds and pursue the rest of what we think is due to us from your client…” (Affidavit of Bryce Jans sworn October 25, 2022, Exhibit “C”).

A reply was sent on February 17, 2021 advising as follows (Affidavit of Bryce Jans sworn October 25, 2022, Exhibit “C”).: 1. While we do not admit liability to pay more than the amount that was transmitted to you, cashing our cheque will not be raised by us evidence [ sic ] that you have accepted the amount sent in full satisfaction of our client’s [ sic ] obligation to you; and 2.

You will retain your right to seek to collect additional interest, subject of course to our position which is that the amount paid was sufficient to pay not only the costs but the interest accrued thereon. [ 16 ] Bryce, retained his previous counsel again and on March 10, 2021 his lawyer wrote a lengthy letter which included the following (Affidavit of Bryce Jans sworn October 25, 2022, Exhibit “D”).: Firstly, with respect to the issue of the payment of interest on the costs amount of $285,000, the law appears to be established in Saskatchewan that the calculation of interest on a costs award is from the date that judgment was rendered, which in this case was August 24, 2016. … [ 17 ] In an affidavit of Jay Jans sworn November 4, 2022, in response to Bryce’s application respecting the interest being claimed, Jay argued at para. 4, “… I dispute that an agreement was reached to ‘assess the costs ordered by Justice Barrington- Foote as $285,000.00.’ Rather, negotiations occurred, and an agreement was reached to pay a lump sum of $285,000.00 in full satisfaction, or an all-in figure, of the QB costs.

For clarity, the $285,000.00 was inclusive of interest. To secure the agreed upon amount, a consent order would be issued in the amount of $285,000.00 (the “ Consent Order ”). Post-judgment interest would run following the date of issuance of the Consent Order.” [emphasis in original]. [ 18 ] The lawyer who negotiated costs, is no longer Jay’s lawyer of record and has not been for some time. In an affidavit sworn by Jay in support of an adjournment of this application, Jay advised that he was contemplating a third-party claim against

the lawyer who acted for him at the time of the costs negotiation. Jay has not brought a third-party claim against his lawyer but the lawyer has now sworn an affidavit in support of Jay’s application. [ 19 ] In response to Bryce’s claim for declaratory relief awarding him interest, Jay has brought his own application asking for rectification and variation of the consent order on the grounds of unilateral mistake. [ 20 ] The contents of the affidavit of Jay’s counsel at the time of the costs negotiation is reflected in the correspondence exchanged.

At paras. 11 and 12 of his affidavit sworn August 11, 2023 in QBG-SC-00043-2011, he states, 11. I received instructions from the Jay Parties [Jay Jans in his capacity as executor in the Estate of Russell Jans, Jay Jans, Tannis Jans and 1010142508 Saskatchewan Ltd.] on December 1, 2020, to accept the offer of $285,000 as an all-in figure for Q.B. costs which instructions were communicated in my email to Mr. Hardy of December 2, 2020, which is marked as Exhibit H to Jay Jans’ affidavit. 12.

I had no reason to oppose Bryce Jans obtaining a registrable judgment as our clients were not in a position to liquidate the agreed amount immediately and considered it reasonable that Mr. Hardy’s client desired a means by which to enforce the agreement made.” [ 21 ] He then adds at para. 14: 14. While my recollection may not be complete with a number of matters (as I have noted herein), I can say with certainty is that I have no recollection of any discussion arising at any time during negotiations that any payment above and beyond the figure under discussion would be required for interest.

While I understood that post-judgment interest would be payable on the settlement amount once it had been reduced to judgment, I hoped that early payment might result in that interest being waived. I had no expectation that interest on costs would accrue or be payable prior to the costs amount being reduced to judgment.

That expectation is reflected in the trust conditions set out in the letter … dated January 8, 2021 [ 22 ] The animosity and distrust between the Jans brothers have now spilled over to their representatives with each side accusing the other of nefarious misdeeds to advance the positions of their respective clients. [ 23 ] Central to Jay’s argument are the comments made by Danyliuk J. in Brooks v Brooks , 2013 SKQB 325 , 429 Sask R 146 respecting the Foundational Rules of The Queen’s Bench Rules and which bears repeating: [15] In every case commenced, the foundational rules must be considered by the court, counsel and the parties.

These rules are located in

Part 1, and in particular Rule 1-3 of The Queen’s Bench Rules has application in this case. The rules and the court’s process are to be used to identify the real matters in dispute, and to facilitate the quickest means for resolving claims at the least expense. Parties are obliged to communicate in an open, honest and timely manner. The court will also bear these foundational rules in mind when dealing with actions and applications. These rules are much more than mere slogans. They are not aspirational.

The foundational rules are overarching statements of principle which will strongly influence and guide the manner in which litigation is to be conducted in this province. It is the expectation of the court that they be considered in each case and that counsel and the parties conduct themselves in accordance with same. Failure to do so will not be without consequences. [ 24 ] Jay argues the judgment incorrectly recorded their arrangement and should be rectified to reflect their communications.

Typically, an application to amend or vary an order should be made to the judge who rendered the original order ( Audette v Audette , 1999 SKQB 104 ). No effort appears to have been made to

schedule the matter before Keene J. and no objection was taken by counsel that it was not before Keene J. In light of the fact that it was a consent order prepared and endorsed by senior counsel, Keene J. appears to have no input into the wording in any event and so with consent of counsel I have heard the matter. [ 25 ] The parties negotiated costs but the consent order is no longer simply an agreement as to costs.

As pointed out in Kidd v Kidd , 2020 SKQB 249 at paras 39 and 41 : 39 … To this, I would add that in determining the meaning of an order, the Court is searching for the intention of the Court, not the intention of the parties. An agreement, upon becoming an order, becomes more than simply a contract between the parties. It becomes an exercise of the state's authority. The result is that while there are similarities between determining the intention of the judge in the context of an order and the intention of the parties to a contract, they are not one and the same.

Therefore, as Ottenbreit J.A. put it in Campbell [ Campbell v Campbell , 2016 SKCA 39 , 476 Sask R 185 ] , resorting to contract

interpretation principles is misplaced: the emphasis must always be on the pleadings, the order itself and the circumstances in which the order was made. … 41 I should add that an application to interpret an order is not the same thing as an application to vary an order, including a consent order, where contract principles can play a greater role.

In the context of an application to vary an order (in situations where everyone knows what the order means), the Court can exercise its discretion in situations where there is a common mistake, fraud, collusion, duress, illegality or other grounds that might vitiate a contract as noted by the Court of Appeal in, Future Four Agro Inc. v.

Gustafson , 2019 SKCA 68 at paras 26-31 , 438 DLR (4th) 647 [ Gustafson ] . [ 26 ] In support of his argument of unilateral mistake, Jay must argue there is something more than mere mistake on his part and paints a rather dark picture of the circumstances surrounding the drafting of the consent order and the events that followed. He suggests that the “all in” $285,000 that he agreed to was not reflected in the consent order drafted by Bryce’s counsel. He suggests the “all in” was purposefully excluded by Bryce’s lawyers when they prepared the consent order.

When Jay’s lawyer attempted to send the $285,000 on trust conditions that it be accepted in full and final satisfaction of the costs, the cheque was returned as Bryce had decided he no longer needed his lawyers thus rendering use of trust conditions impossible. No mention was made in the letter returning the funds that the sum sent would not suffice. Jay’s lawyer then began to negotiate with Bryce directly and only then discovered Bryce was insisting on interest from the date of the 2016 judgment.

Bryce’s lawyers were then retained again after payment of the $285,000 and insisted on interest being calculated from the date of judgment. In

summary, Jay accuses Bryce’s lawyers did not include the full terms of the arrangement in the consent order, withdrew to avoid trust conditions that they accept the funds in full and final satisfaction

and then laid in the weeds until the $285,000 was paid only to come back on record to argue interest was required. [27] Faced with these aspersions, Bryce’s counsel has reciprocated the attack. It is suggested the bill of costs was thesubject of their negotiations and at no time was interest included in the discussions. Interest is governed by The Enforcement of MoneyJudgments Act and is not one of the items listed in the bill of costs. It is suggested that Jay’s lawyer was mistaken respecting the lawrespecting interest and has now tried to cover it up by suggesting “all in” included interest.

Bryce’s counsel suggests that this is a newargument after several months and several lawyers later and should not be entertained. He suggests Jay was found to lack credibility atthe trial by Barrington-Foote J. (as he then was) and should not be believed on this point. He also points out that Bryce made it clearbefore accepting the $285,000 that he wanted interest from the day of the trial judgment, and nobody raised the argument at that time thatthe $285,000 was intended to cover the interest.

It was further argued the fact that Jay’s counsel was prepared to pay interest fromDecember 2022 belies his argument that no interest was payable. [28] Jay’s credibility for purposes of this application is not in question as negotiations were conducted by counsel. Ihave no difficulty believing Jay or Jay’s lawyer when they state they believed the $285,000 was the total amount to be paid. It is clearthey did not address their mind to the interest which would accrue from the date of the trial pursuant to The Enforcement of MoneyJudgments Act.

I am not convinced that Jay’s lawyer is trying to cover up a mistake but rather am satisfied that, at the time, believed$285,000 was all that was needed and that was what was intended by “all in”. They clearly were not thinking of interest but also clearlythought $285,000 would put an end to the litigation. The fact that he was prepared to pay interest from December 2022 is also notparticularly damning since the initial trust conditions sent the $285,000 in full and final satisfaction.

Given the delay in payment,offering interest on that amount from December when the initial settlement was reached would appear reasonable. I am also notconvinced Bryce’s lawyers resorted to trickery with respect to the interest. Bryce made it very clear when the $285,000 was being sent tohim that he also wanted interest. [29] The question is what was intended by “all in”. There is no dispute that Jay’s lawyer offered “$285,000 as the all-in figure for QB costs.” (Affidavit of Jay Jans sworn November 4, 2022, Exhibit “H”).

Is Bryce correct when he suggests the “all in”figure was only in relation to the bill of costs that they had been working from which was silent as to interest? Or is Jay correct when hesays $285,000 “all in” is for everything regardless of what the claim might be? Both

interpretations are plausible, and both are born outby the evidence. The suggestion that Bryce’s lawyer was only concerned with the itemized list of costs and was not including interest inany of the calculations is supported by the fact that he was referencing the initial bill of costs during negotiations. The suggestion thatJay’s lawyer had instructions to agree to an all in figure that would finalize the amount owing is equally plausible and borne out by theevidence insofar as it too is consistent with the term “all in”.

Further corroborative evidence is that Jay was attempting to obtainfinancing to pay off Bryce and a final number would be needed. [30] The consent judgment does not refer to “all in” but it is clear from the material, that was how Jay’s counselaccepted the offer of $285,000. Although “All in” was not reflected in the consent order which was prepared by Jay’s lawyer, it is anomission that can be corrected.

Rule 10-10 of The Queen’s Bench Rules provides: “Any judgment or order may be amended: (a)…by theCourt, if there are clerical mistakes or errors arising from an accidental slip or omission…” (See also Buschau v Rogers CommunicationsInc., 2004 BCCA 142, 237 DLR (4th) 260). However, correcting the consent judgment to reflect the parties’ agreement as set out in theemail exchange does not end the matter as there is clearly disagreement as to what “all in” means. Jay’s lawyer does not dispute thecorrespondence which references “all in”, the argument was simply that “all in” only referred to the bill of costs.

As stated earlier, boththeir positions as to what was intended are plausible having regard to the surrounding evidence of their negotiations which raises thequestion as to whether there was a meeting of the minds and, if not, what should be done with the consent order? [31] In Gustafson v Future Four Agro Inc., 2019 SKCA 68, 438 DLR (4th) 647, the Court of Appeal reviewed thelaw respecting the setting aside of consent orders and commented: [27] … In Gray [R v Gray (2004), (NB CA), 284 NBR (2d) 31 (CA)], Robertson J.A. said a consent order could beset aside only on grounds that would vitiate a contract, and referred to common mistake, fraud, collusion, misrepresentation, duress andillegality as examples of such grounds.

Procyshyn [Procyshyn v Gabruch, 2014 SKQB 349, [2015] 5 WWR 320]and Wall Estate [WallEstate v Glaxosmithkline Inc, 2017 SKQB 149], on the other hand, say that one of these six listed grounds must be present, absent a slipin drawing the order.

The Chambers judge adopted the same approach, stating that he had the discretion to vary the Consent Order "onlyin those instances where there is proof of a common mistake, fraud, collusion, misrepresentation, duress or illegality, or where there hasbeen a 'slip' in drawing the order" (Chambers Decision [September 11, 2018 fiat] at para 22). [28] In Sekerbank [Arslan v Sekerbank T.A.S., 2016 SKCA 77, [2016] 10 WWR 232], Caldwell J.A. adopted a less restrictive approach,stating the test this way: [97] ...I agree with the analysis in Elmtree [Elmtree Environmental Ltd. v Fredericton (Region) Solid Waste Commission, 2011 NBQB108, 377 NBR (2d) 71, where the court had faced arguments similar to those advanced by the appellants in this case and concluded thatit could not terminate a consent order absent proof of grounds that would vitiate a contract — i.e., fraud, common mistake, or illegality,etc. — or of a material change in circumstances.

This conclusion is supported by the decisions in Spender [Spender (Guardian of) vSpender, (BC SC)] and Ontario Sugar Co., Re [(1911), (SCC), 44 SCR 659] cited by the Chambersjudge and by the recent decisions in Procyshyn v. Gabruch, 2014 SKQB 349 (Sask. Q.B.) at paras 28-29, (2014), [2015] 5 W.W.R. 320(Sask. Q.B.), Yan v. Chen, 2014 ONSC 3111(Ont. S.C.J. [Commercial List]) at paras 83-85, as well as Simonelli v Ayron DevelopmentsInc., 2010 ABQB 565, [2011] 3 W.W.R. 140 (Alta. Q.B.) at paras 64-87, and in Kolodziejski v. Kolodziejski (May 20, 2016), Doc.Saskatoon CACV 2813 (Sask.

Q.B.). (Emphasis added) [29] This language recognizes that there are circumstances in which a consent order could be varied or set aside which do not constitutecommon mistake, fraud, collusion, misrepresentation, duress or illegality. However, it does not mean a court can vary a consent order ifthere has been a "material change of circumstances" which would be insufficient to either vitiate the underlying contract or justify non-performance based on the law of contract.

[ 32 ] Jay asks the consent order be varied to reflect his belief that it was an all in figure. Bryce asks the consent order remain untouched (including not changing it to add the words “all in”) and seeks declaratory relief that interest is owing from the date of the trial decision. Bryce believed he was entitled to interest.

Interest was never discussed and although “all in” was clearly a term of their contract, they disagree as to its meaning and were not consensus ad item . [ 33 ] In Ron Ghitter Property Consultants Ltd. v Beaver Lumber Company Limited , 2003 ABCA 221 , [2004] 1 WWR 628 [ Ghitter ] , the Alberta Court of Appeal set out the test: Test for consensus ad idem 8 Regardless of the theories underlying the enforcement of contracts, mutuality of agreement lies at the root of any legally enforceable contract. The required degree of mutuality of agreement mandates that the parties reach a consensus ad idem on essential terms.

In determining whether the parties have reached agreement for legal purposes, the starting point must be the alleged Page: 5 contract itself: Associated Japanese Bank (International) Ltd. v. Crédit du Nord S.A. , [1989] 1 W.L.R. 255 at 268 (Q.B.) . If the wording of the contract is plain and unambiguous, that will ordinarily be an end of the matter. The accepted test is whether a reasonable observer would infer from the words or conduct of the parties that a contract had been concluded: Smith v. Hughes (1871), L.R. 6 Q.B. 597, at 607.

That is, on an objective basis, have the parties reached consensus ad idem ? [ 34 ] Both Jay and Bryce have outlined their beliefs respecting the agreement. Jay is adamant that “all in” meant he was agreeing to a lump sum, and he would have certainty. He does not dispute, nor does his lawyer that he was not thinking of interest. He was agreeing to a number which he believed to be all in and in full and final satisfaction of the litigation.

Bryce, on the other hand also contends interest was not on the radar and he was only negotiating settlement of the itemized list of expenditures set out in the bill of costs. [ 35 ] In Ghitter , the Alberta Court of Appeal reviewed the law respecting mistake beginning at para. 10: [10] There are, of course, many reasons why parties may never reach consensus ad idem. Mistake is one of them. The manner in which mistake may prevent formation of a contract was explained by Lord Phillips, M.R. in Great Peace Shipping Ltd. v.

Tsavliris (International) Ltd. , [2003] Q.B. 679 at 690 (C.A.): A mistake can be simply defined as an erroneous belief. Mistakes have relevance in the law of contract in a number of different circumstances. They may prevent the mutuality of agreement that is necessary for the formation of a contract. In order for two parties to conclude a contract binding in law each must agree with the other the terms of the contract. Whether two parties have entered into a contract in this way must be judged objectively, having regard to all the material facts.

It may be that each party mistakenly believes that he has entered into such a contract in circumstances where an objective appraisal of the facts reveals that no agreement has been reached as to the terms of the contract. [11] But to prevent the formation of a contract, the mistake must be fundamental, in the sense that it must go to an essential term of the alleged contract.

As explained in Cheshire, Fifoot and Furmstom , Law of Contract [14 th ed. (London: Butterworths, 2001)], supra , at 270: Translated into the familiar rubric of offer and acceptance, this means that the only type of mistake which is ever capable of excluding offer and acceptance is one that prevents the mistaken party from appreciating the fundamental character of the offer and acceptance. [12] There are three types of mistake: common, mutual and unilateral: see Cheshire, Fifoot & Furmston, Law of Contract , supra at 252- 53 for a

summary of each. Common mistake occurs when the parties make the same mistake. For example, one party contracts to sell a vase to another when unbeknown to both, the vase was destroyed and no longer exists. Mutual mistake occurs when both parties are mistaken, but their mistakes are different. In this event, the parties misunderstand each other and are, to use the vernacular, “not on the same page”. Unilateral mistake involves only one of the parties operating under a mistake.

If the other party is not aware of the one party’s erroneous belief, then the case is one of mutual mistake but if the other party knows of it, of unilateral mistake. What adds to the confusion is that the distinction between mutual and common mistake is sometimes blurred when courts use the two terms interchangeably. [13] The presence or absence of an agreement is one of the foundational differences amongst the three types of mistake. With common mistake, the agreement is acknowledged.

What remains to be determined is whether the mistake was so fundamental as to render the agreement void or unenforceable on some basis. But in the case of a mutual or unilateral mistake, the existence of an agreement is rejected. As explained in Cheshire, Fifoot & Furmston, supra at 253: Where common mistake is pleaded, the presence of agreement is admitted. The rules of offer and acceptance are satisfied and the parties are of one mind. What is urged is that, owing to a common error as to some fundamental fact, the agreement is robbed of all efficacy.

Where either mutual or unilateral mistake is pleaded, the very existence of the agreement is denied. The argument is that, despite appearances, there is no real correspondence of offer and acceptance and that therefore the transaction must necessarily be void. [14] The test to determine whether a mutual mistake prevents the formation of an agreement necessarily includes the following: 1. Has there been a mistake? 2. Were the parties, on an objective basis, ad idem notwithstanding any alleged mistake? 3.

If not, is the mistake fundamental? [Emphasis in original] [ 36 ] It is clear from the correspondence that the lawyers misunderstood each other. Jay’s lawyer was suggesting a final “all in” number. Was he considering interest on costs? No, but he was also wanting it to be clear that regardless of the source of the claims, “all in” meant that was the final bill which was to be incorporated into a final judgment for security as his client could not afford

to pay the amount immediately and would be raising the cash. Bryce’s lawyer was reducing the bill of costs and was prepared to accept $285,000 but was also not considering interest when the “all in” offer of $285,000 was communicated. To use the vernacular as referenced in Ghitter , the parties were not on the same page. The parties were never ad item as Jay’s lawyer was negotiating a final number regardless of the source of the claims and Bryce’s lawyer was only negotiating the itemized bill of costs.

The mistake is fundamental. “All in” $285,000 is substantially different from $285,000 plus an additional $60,000 (plus) in interest. [ 37 ] In the circumstances the consent order is set aside, and the parties will have to renegotiate and/or tax the bill of costs. Included in their negotiations should be recognition that interest charges accumulate from the date of the trial judgment. It is recognized that payment has already been made which, will, of course impact the final figure respecting the costs and interest thereon. COSTS : [ 38 ] Neither party has been successful and there will be no order as to costs.

It was suggested by Bryce’s lawyer that the allegations of fraudulent like behaviour warrant a finding of costs. Although I do not attribute trickery to their actions as alleged by Jay’s counsel, I am nonetheless mindful of the Foundational Rules of The Queen’s Bench Rules and much of the confusion could have been avoided by open, honest, and timely communication. Unfortunately, that does not appear to have occurred, including asking for clarification of “all in” rather than simply omitting it from the consent order. J. C.M. RICHMOND