r v. Bodnar, 2017 ONSC 5381

CITATION : Bodnar v. Bodnar, 2017 ONSC 5381 COURT FILE NO.: 16-59053 DATE: 2017-09-13 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: ) ) Ken Bodnar ) ) ) Rosemary A. Fisher, for the Plaintiff ) Plaintiff ) ) - and - ) ) ) Karen Louise Bodnar ) ) ) Greg A. Carr, for the Defendant ) Defendant ) ) ) ) HEARD: September 6, 2017 REASONS FOR JUDGMENT [ 1 ] The defendant, Fiona Blossom Bodnar, hereinafter referred to as “Fiona” brings this motion for: (

a) An order discharging a certificate of pending litigation obtained ex-parte against property known municipally as 1161 Westhaven Drive, Burlington, ON; (

b) An order and a declaration that minutes of settlement entered into in matrimonial proceedings between Ken Bodnar and Jenny May Bodnar contain a term providing for settlement of the within proceedings and that said term is enforceable as between Fiona Bodnar and Ken Bodnar; (

c) A declaration that the material terms of the aforesaid settlement agreement are that: (

i) The plaintiff’s claim in File No. 16-59053 is to be dismissed without costs. [ 2 ] The plaintiff, Ken Bodnar (respondent on this motion), hereinafter referred to as “Ken” and Fiona are brother and sister. [ 3 ] In 2014 Fiona purchased a home 1161 Westhaven Drive, in the City of Burlington, Ontario (“the property”). Ken alleges that he assisted in the financing of that purchase and at the time of purchase, Fiona executed a promissory note in Ken’s favour in the amount of

$400,000.00, payable on 30 days demand. [4] Ken demanded payment on November 27, 2015. No payment has been made and Ken has commenced an action seeking recoveryof the sum of $400,000.00 and in connection with that action, a certificate of pending litigation was obtained ex-parte against theproperty. [5] The promissory note upon which Ken bases his claim reads as follows: Promissory Note Within 30 days of demand Date: August 14, 2014 $400,000.00 I, Fiona B.

Bodnar, hereby promise to pay within 30 days of demand, to Ken Bodnar, the sum of $400,000 ($400,000.00) DOLLARS,interest-free, to satisfy the loan given to me by Ken Bodnar for the purchase of the property municipally known as 1161 WesthavenDrive, Burlington, which purchase will be completed on August 14, 2014. DATED at Burlington, this 14th day of August, 2014. _________________________ FIONA B.

BODNAR DATE: August 13, 2014 __________________________ WITNESS SIGNATURE ___________________________ WITNESS PRINT NAME Sandra Mestre [6] Subsequently, Ken and his former wife, Jenny, were engaged in matrimonial proceedings and attended mediation relative to sameon November 23, 2016.

Jenny Bodnar provided an affidavit stating that Ken had not disclosed any loan to Fiona as a receivable in thematrimonial proceedings, nor had he ever disclosed same to Jenny previously. [7] During the mediation, Jenny’s counsel raised the issue of the purported loan receivable from Fiona with Ken’s solicitor since samewas not disclosed on any financial statement in the matrimonial proceedings.

At that time, Ken and his family law counsel, in order toavoid the $400,000.00 alleged receivable being taken into account in the equalization property in the matrimonial proceedings, requestedthat Ken’s discontinuance of the within litigation against Fiona be a term of the settlement of the matrimonial proceedings and, as aresult, a term to that effect was included in the minutes of settlement between Ken and Jenny. [8] Hence, discontinuation of the litigation against Fiona became a term of the settlement in the matrimonial proceedings and thesame has been acknowledged by Ken. [9] The term in the minutes of settlement mentioned above reads as follows: 3.

Subject to Fiona’s consent, on or before December 31, 2016, Ken shall discontinue the litigation with his sister, Fiona, and exchangemutual releases with Fiona with respect to all claims. [10] Contrary to the terms of the minutes of settlement, Ken sought legal fees from Fiona in consideration for the dismissal of thewithin action and “Mutual Releases”. Fiona counteroffered with her own request for an amount for costs, but then, ultimately, requestedthat Ken simply comply with the minutes of settlement.

To date, Ken has failed to do so. [11] Fiona through her counsel, delivered her consent to the terms of the minutes of settlement on January 13th, 2017. Ken now takesthe position that because the litigation was not discontinued by December 31, 2016, “the deals (sic) off”. [12] There are two issues to be decided on this motion: 1. Can Fiona claim the benefit of the agreement to dismiss the action against her without costs in the minutes of settlement betweenKen and Jenny? 2.

If so, is Fiona barred from relying on the terms of the minutes of settlement mentioned above because she did not deliver herconsent to the dismissal of the action without costs prior to December 31, 2016? Law and Analysis [13] In the recent decision of the Ontario Court of Appeal in Brown v. Belleville (City) 2013, ONCA 148 , the Courtreviewed the doctrine of privity of contract at length.

The starting point was the general principle that the doctrine of privity of contractprevents a non-party to a contract from enforcing or relying upon the contract subject to certain principled exceptions established in thecase law. Madam Justice Cronk reviewed the case law with respect to “principled exception to the privity rule” from the Supreme Court

of Canada and held that the “threshold requirement” to invoke the principled exception of the privity rule is that there must be evidence that the contracting parties had intended to extend the benefit in question to the third party seeking to rely upon the contractual provision: The principled exception to the privity rule introduced in London Drugs was again considered and applied, this time unanimously, by the Supreme Court in Fraser River .

In that case, at paras. 28-29 and 32, the court clarified that satisfaction of the first branch of the London Drugs test is a threshold requirement: to invoke the exception, there must be a showing that the contracting parties intended to extend the benefit in question to the third party seeking to rely on the contractual provision.

Further, under the second branch of the test, the intention to extend the benefit of the contractual provision to the actions of a third-party beneficiary is irrelevant unless the actions of the third party come within the scope of the contract in general, or the provision in particular, between the initial contracting parties.

The Supreme Court emphasized in Fraser River , at para. 32, as did the majority of the court in London Drugs , at p. 449, that the extension of the principled approach to create a new exception to the doctrine of privity of contract, “first and foremost must be dependent upon the intention of the contracting parties”. Finally, the application of the principled approach is not confined to situations involving only employer-employee relationships or limited liability. See: London Drugs Ltd. v. Kuehne & Nagel International Ltd. , 1992 CarswellBC; Fraser River Pile & Dredge Ltd. v.

Can-Dive Services Ltd. [1999] SCR 108 paras. 28-29 [ 14 ] Clearly, Ken wished to deal with the issue of the alleged receivable, hence his request for the term in the minutes of settlement. It was similarly of importance to Jenny as it effected Ken’s net worth and her entitlement to same. Jenny and Ken agreed to the term which extended a benefit to Fiona in respect of which Fiona consented. The foregoing satisfies the first branch of the London Drugs test.

The second branch of the test is satisfied in that the existence or non-existence of the loan receivable very much comes within the scope of the contract in general between the initial contracting parties. [ 15 ] Despite the fact that Fiona is not a party to the proceedings in respect of which Jenny and Ken came to a resolution, she is nonetheless effected by the contractor’s intention and is specifically referenced therein. [ 16 ] Fiona’s consent and her proceedings at the suit of Ken were an integral part of the resolution of the matrimonial proceedings between Ken and Jenny.

There was an issue in those proceedings as to whether Ken had, as an asset, a receivable from Fiona.

Resolution to that question as between Jenny and Ken involves Fiona and the benefit of that resolution is meant by Ken and Jenny to extend to Fiona. [ 17 ] The fact that Fiona did not consent to the discontinuance of the litigation on or before December 31, 2016, as referenced in paragraph three of the matrimonial minutes of settlement was, as the result of Ken muddying the waters by demanding costs of his action against Fiona when paragraph three of the matrimonial minutes of settlement clearly states that the parties were to extend mutual releases “with respect to all claims”.

Upon the resolution of this issue with respect to costs, Fiona delivered, through her counsel, a consent to the discontinuance of the litigation. [ 18 ] It would be inequitable to allow Ken, because of his own action delaying the obtaining of Fiona’s consent, to rely upon that delay as an excuse not to honour his agreement to discontinue the action.

Ken got what he wanted and should not be allowed to resile from his agreement. [ 19 ] Based upon the foregoing, I find that Fiona is entitled to enforce paragraph three of the minutes of settlement between Ken and Jenny. [ 20 ] It is ordered that Ken deliver a notice of discontinuance of the action without costs and the parties exchange mutual releases with respect to all claims in the action between Ken and Fiona.

Further, an order to go discharging the certificate of pending litigation obtained by Ken Bodnar in these proceedings on the property known municipally as 1161 Westhaven Drive, Burlington, Ontario and registered as Instrument Number HR1349113. [ 21 ] If the parties cannot agree on costs, I will accept written submissions with respect to costs with Fiona Bodnar’s counsel to deliver submissions no longer than four double-spaced pages, excluding any time records, within 10 days of the date hereof, Ken Bodnar’s counsel to deliver responding submissions within 10 days of that and Fiona Bodnar’s counsel to deliver her reply, if any, within five days of receiving the responding submissions of Ken Bodnar. ___________________________ LOFCHIK J.

Released: September 13, 2017 CITATION : Bodnar v. Bodnar, 2017 ONSC 5381

COURT FILE NO.: 16-59053 DATE: 2017-09-13 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: Ken Bodnar Plaintiff - and – Fiona Blossom Bodnar Defendant REASONS FOR JUDGMENT TRL:jls Released: September 13, 2017