2013 ONSC 3282, 2013 ONSC 3282

CITATION : Crooks v. Foley, 2013 ONSC 3282 DIVISIONAL COURT FILE NO.: 558/12 DATE: 20130604 SUPERIOR COURT OF JUSTICE – ONTARIO – DIVISIONAL COURT RE: FERROL CROOKS, Appellant (Plaintiff) AND: JOHN DARREN FOLEY and HALTON REGIONAL POLICE SERVICES BOARD , Respondents (Defendants) BEFORE: MOLLOY, SWINTON and HARVISON YOUNG JJ. COUNSEL: Ernest J.

Guiste , for the Appellant Robin Squires , for the Halton Regional Police Services Board HEARD: May 31, 2013 at Toronto ENDORSEMENT The Appeal Before the Court [ 1 ] This is an appeal from the order of the Honourable Justice Stevenson dated March 7, 2012, which dismissed the appellant’s claim against the Halton Regional Police Services Board (“Halton Police”) based on an accepted settlement offer.

The appellant seeks an order setting aside the decision of the motion judge and directing that the action proceed to trial against the defendant Halton Police. [ 2 ] At the conclusion of the argument for the appellant, we advised that we would be dismissing the appeal, with written reasons to follow. Those reasons are set out below. Background [ 3 ] The appellant Ferrol Crooks (“the plaintiff”) issued a Statement of Claim on January 21, 2005 alleging false imprisonment, assault, battery, negligent investigation, excessive use of force, and a breach of his Charter rights arising from his arrest on July 23, 2004.

He was originally represented by a lawyer, Mr. Conte, who took various preliminary steps in the litigation, including the pleadings and noting John Darren Foley in default. [ 4 ] Subsequently, the plaintiff retained new counsel, Julian Falconer of Falconer Charney LLP. During a meeting on April 20, 2010, Mr. Falconer and an associate, Ms. Esmonde, provided the plaintiff with an opinion letter as to the merits of his action and recommended attempting to settle it. The plaintiff provided them with verbal and written instructions to attempt to settle the action. [ 5 ] Ms.

Esmonde then wrote to counsel for Halton Police offering to settle the action for $30,000. On September 8, 2010, the Halton Police accepted the offer in exchange for a full and final release. The plaintiff was advised of the settlement on September 17, 2010. A date was arranged for the plaintiff to come in and sign the agreement and release, but he did not attend. On September 28, 2010, the Halton Police provided the settlement monies to Falconer Charney LLP to be held in escrow. [ 6 ] On November 5, 2010, counsel for Halton Police received a call from Mr. Crook’s current counsel, Ernest J.

Guiste, who stated that he was now retained. He advised that the plaintiff no longer wished to settle the action for the amount agreed to with Falconer Charney LLP. The plaintiff has never signed the agreement and release. The settlement funds remain in the escrow account of the former solicitors. [ 7 ] On March 5, 2012, Halton Police brought a motion for judgment in accordance with the settlement. Falconer Charney LLP was granted intervenor status on the motion. Ms. Esmonde and Mr. Falconer provided affidavits.

The plaintiff also provided an affidavit, largely challenging the legal advice provided by Falconer Charney LLP which was the basis for its recommendation to settle. Submissions were heard from all three parties. [ 8 ] On March 7, 2012, Justice Stevenson confirmed the settlement and dismissed the action, awarding costs to the Halton Police at $8500 and ordering that $2500 be taken from the remaining settlement funds to pay Mr. Conte (the plaintiff’s first counsel). No Error of Law [ 9 ] Mr.

Guiste argues that the motion judge erred in law by basing her decision solely on Rule 49.09(a) (granting judgment in accordance with a settlement) and by failing to address her mind to, and properly consider Rule 49.09(b), which provides the option of continuing the proceeding as if there had been no accepted offer to settle. [ 10 ] The standard of review on questions of law is correctness: Housen v. Nikolaisen , 2002 SCC 33 , [2002] 2 S.C.R. 235. [ 11 ] We find no error of law by the motion judge. Although she did not refer expressly to Rule 49.09(

b) in her reasons, it is clear from reading the reasons as a whole that she took that portion of the Rule into account and knew that she had a discretion to exercise, even if she concluded that there had been a settlement. For example, she referred to the plaintiff’s submission that the settlement was

“voidable” and to arguments that the settlement ought not to be enforced because of “dirty hands” or “unjust enrichment of the Haltonpolice.” [12] The motion judge was also clearly aware of the arguments advanced with respect to the accuracy of the opinion letter fromFalconer Charney LLP and whether the conduct of those solicitors was such that the settlement should not be enforced. She held, “I donot find the actions of the Plaintiff’s former counsel Falconer Charney LLP rendered the settlement voidable.

The Plaintiff provided norelevant case law on this issue nor facts or authority to persuade me to do so.” [13] A motion judge is not required to recite each Rule taken into account in reaching her decision. Read in context and taken as awhole, it is apparent from her Reasons that the motion judge knew she was not obliged to enforce the settlement, but rather that she had adiscretion as to whether to do so. She did not disregard Rule 49.09(b); she simply declined to exercise her discretion in favour ofcontinuing the action rather than enforcing the settlement. She committed no legal error in that regard. [14] Mr.

Guiste made extensive argument about the merits of Mr. Crooks’ action and, in particular, whether the assessment byFalconer Charney LLP as to the limitations problems with the claim for recovery of property was accurate in law. [15] We agree with the motion judge that even if there had been a mistake by the former solicitors as to the merits of the plaintiff’saction, that would not necessarily constitute a basis for setting aside the settlement reached with the opposing party: Cambrian FordSales

(1975) Ltd. v. Horner (1989), (ON SC), 35 O.A.C. 259 (Div. Ct.); Vanderkop v. Manufacturers Life InsuranceCo. (2005), (ON SC), 78 O.R. (3d) 276 (S.C.J.); Co-operators v. Tagaoussi

(2000) C.C.L.I. (3d) 34 (Ont.S.C.J.), aff’d (2002), 15 C.P.C. (5th) (O.C.A.). The motion judge made no error of law in failing to exercise her discretion on that basis. [16] The motion judge also concluded, correctly, that the failure of the plaintiff to sign the final documentation was not animpediment to enforcing the settlement. That conclusion was not challenged on this appeal. No Errors of Fact [17] The standard of review for findings of fact is “palpable and overriding error”: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2S.C.R. 235 at para. 10. [18] Mr.

Guiste submits that the motion judge failed to consider the “uncontradicted” evidence of Mr. Crooks. We disagree. First,Mr. Crooks’ evidence was not “uncontradicted.” Two lawyers from Falconer Charney LLP filed affidavits contradicting Mr. Crooks’assertions, and they were in the record before the motion judge. Second, it is clear from reading the Reasons that the motion judge did infact consider Mr. Crooks’ evidence, as well as the submissions made on his behalf on the motion.

She referred to these in her Reasons,but was not persuaded that this evidence constituted a sufficient basis for refusing to enforce the settlement. [19] What was uncontradicted in the record was that Mr. Crooks gave instructions to his former solicitors to make a settlementoffer and that he did not seek to vary or rescind those instructions until after the offer had been made and accepted.

Further, there was nodispute that his solicitor at the time had ostensible authority to make the settlement offer and that the offer was accepted by the Haltonpolice. [20] We find no error of fact by the motion judge with respect to any of these critical points. She considered the evidence andreached a conclusion supported by the evidence and the law. There was no palpable or overriding error of fact that would warrant thisCourt’s intervention on appeal.

No Basis to Interfere with the Exercise of Discretion [21] Essentially, the motion judge was exercising a discretion when she elected to enforce the settlement rather than ordering theaction proceed to trial notwithstanding that a settlement had been reached. [22] In Alexandra Park Co-operative v. Hamilton, 2010 ONSC 1277, 259 O.A.C. 373 (Div. Ct.), the Divisional Court, discussedthe principles applicable to reviewing discretionary decisions as follows (at para. 16): The Supreme Court of Canada discussed the review of a discretionary decision in R. v. Regan, 2002 SCC 12 , [2002] 1 S.C.R.297.

Several principles emerge from that case.

First, a discretionary decision should not be lightly interfered with by an appellate court.Second, “where a trial judge exercises his or her discretion, that decision cannot be replaced simply because the appellate court has adifferent assessment of the facts.” Third, “an appellate court will be justified in intervening in a trial judge's exercise of his discretiononly if the trial judge misdirects himself or if his decision is so clearly wrong as to amount to an injustice.” [23] It is not the function of the reviewing court to weigh the various factors and come to its own conclusion as to how to exercisethe available discretion.

Rather, deference is owed to the motion judge’s exercise of discretion and the reviewing court can onlyintervene in the circumstances described in Regan. Applying this test, we find no error by the motion judge to warrant intervention bythis Court. There is no reviewable error of fact or law, nor did the motion judge proceed on an incorrect principle. Her decision is onethat was open to her on the evidence.

Further, the evidence that was raised as to an injustice or unconscionablity of the settlement wasclearly not sufficient to persuade the motion judge that it was appropriate to set aside the settlement which she found had been negotiatedbetween counsel on the instructions of Mr. Crooks. We cannot say that decision was clearly wrong or that it amounts to an injustice inall of the circumstances. This was an appropriate exercise of discretion by the motion judge. [24] This Court makes no finding as to whether the former solicitors for the plaintiff gave him good or bad legal advice.

The pointis that he gave instructions to his solicitors to negotiate a settlement and, acting on those instructions, his solicitors did so. Therespondent was entitled to rely on the word of the plaintiff’s solicitors and to accept that they had authority to settle the action. If there isa remedy for the plaintiff based on the fact that he had a meritorious claim that he settled because of incorrect or negligent legal advice(about which this Court expresses no opinion), that remedy lies against the plaintiff’s former solicitors, not against the defendant HaltonPolice.

Conclusion [ 25 ] Accordingly, the appeal is dismissed. [ 26 ] Mr. Guiste sought leave to make submissions as to costs in writing, and to raise the impecuniosity of his client as a factor supporting his argument that no costs should be awarded. Those submissions shall be delivered by June 14, 2013, and may be faxed to the Divisional Court office. The respondent shall deliver its responding submissions on costs within seven days after receipt of the appellant’s submissions.

If the appellant files an affidavit and the respondent wants to cross-examine on that affidavit, a written request for an amendment to this timetable may be sent to the Court. MOLLOY, J. SWINTON J. HARVISON YOUNG J. Released: June , 2013