settlement - David Scrimshaw on Diigo

10 Nov 09

Miksche Estate v. Miksche, 2009 CanLII 60409 (ON S.C.)

A general retainer to act as counsel in litigation does not vest in the lawyer unfettered authority to “resolve matters” on terms he considers fit,

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Law settlement Professional-Responsibility

Under a retainer to act in litigation a lawyer must obtain the consent of his
client before taking a material step in the litigation which would result in the
incurrence of significant costs by the client or before compromising the
client’s rights in the litigation, unless the retainer agreement contains clear,
express language reposing discretion in the lawyer to act as he sees fit in
specified circumstances.
The requirement of full disclosure is not met where a lawyer acts to compromise
the client’s rights, for the financial benefit of the lawyer alone, without
first obtaining the client’s informed consent
2 more annotations...
- while an attorney acting under a continuing power of attorney is
  always a fiduciary, the scope of the attorney's fiduciary duties depends on
  whether the donor of the power is incapable at the time of the transaction. If
  the donor is mentally incapable, the attorney's position approaches that of a
  trustee. If not, the relationship between donor and attorney is similar to one
  of agency
- [67] Even on Mr. Polten’s own theory
  of the events, he knew that Ms. Lill was an elderly lady, in her eighties, and
  she was competent. Before committing her to a legal strategy that would
  generate over a million dollars in billings, he was under a professional
  obligation to ensure that Ms. Lill clearly understood the financial risks of
  such a strategy and that she had provided informed, unambiguous, express
  instructions to proceed on that course on her behalf. No evidence of such
  instructions was placed before me. Further, he was under a professional
  obligation to ensure that Ms. Lill understood the risk of an appeal and had
  provided express instructions to proceed; no such evidence was placed before
  me. Finally, he was under a professional obligation to ensure that Ms.
  Lill understood all implications of the offer to settle and had provided express
  instructions to make the Offer on her behalf; no such evidence was placed before
  me.

02 Sep 09

R. v. Lanthier, 2008 CanLII 13797 (ON S.C.)

settlement privilege from a civil matter is tossed out the window if the material can help a defendant in a criminal prosecution

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Law privilege settlement Criminal

20 Jul 09

Blackwell v. Dixon, 2009 CanLII 37345 (ON S.C.)

In applying this principle to “an error in calculations causing an offer at a mistaken figure”, the situation in the case at bar, Professor Waddams states the following (at pp. 283-4):
“Where … an offeree instantly ‘snaps at’ an offer, knowing it to be based on a serious miscalculation, unconditional relief would appear to be justified. If protection of the other party’s reasonable reliance comes to be recognized as a condition of relief, knowledge of the mistake becomes relevant to the reasonableness of the reliance of the party seeking enforcement.” [Emphasis added]

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Law Contract error settlement

17 Jul 09

Chater v. York Central Hospital, 2009 CanLII 33022 (ON S.C.)

disagreement as to matters which are not essential to the settlement agreement are not demonstrative of a failure to accept the offer made. They do not lead to the conclusion that no contract was formed. This may include the documents to be exchanged in formalizing the settlement

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Law Contract settlement

The reference to "individual releases" found in that correspondence does not
suggest the releases are to be anything other than "mutual". The fact that
the form of releases included are "unilateral", rather than "mutual", is nothing
more than a mistake and not suggestive of any effort to change or amend the
settlement offered.
The timing of the payment in relation to the dismissal order is incidental to,
and not an essential term of, the agreement.
1 more annotations...
- in the context of a malpractice action, it would be unusual for the doctors to
  sue or have any reason to initiate action against the patient. In this
  situation, it is difficult to understand what advantage was gained by the
  insistence on mutual releases

17 Jun 09

London (City) v. Medina Isovic, 2009 CanLII 30138 (ON S.C.)

Damages for loss of income is not the same as employment income.

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Law welfare Payment settlement

16 Jun 09

Zesta Engineering Ltd. v. Durante, 2009 CanLII 29915 (ON S.C.)

without prejudice - priviliged discussion

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Law prejudice settlement without-prejudice

[6]
The "without prejudice rule" is a
rule governing the admissibility of evidence and is founded on the public policy
of encouraging litigants to settle their differences rather than litigate them
to a finish. The rule applies to exclude all negotiations genuinely aimed at
settlement whether oral or in writing from being given in evidence
[15]
There is no question that a party is entitled to
threaten a civil proceeding. Indeed, a threat to commence a civil proceeding is
expressly carved out from the Criminal Code section dealing
with extortion
3 more annotations...
- As well, a plaintiff is entitled to ask a party it has sued to cooperate in
  other aspects of its affairs, including other litigation, as a term of
  settlement.
- There is no question, however, that it is improper to demand as a condition of
  settlement that a party lie: plainly, that would be suborning perjury.
- It is, however, in my
  view, a different thing for a plaintiff to say to a defendant that it will only
  let the defendant out of the litigation if the defendant concedes that he has
  not theretofore been telling the truth. In other words, the plaintiff is not
  asking the defendant to lie now, but rather to admit to what are, in the
  plaintiff's view, the defendant's previous lies and past transgressions

21 Apr 09

Morgan v. Saquing, 2009 CanLII 16742 (ON S.C.)

One example of a circumstance that might persuade a court to exercise its discretion against enforcement of a settlement is where the lawyer entered into the agreement on the basis of a mistaken understanding of his or her client’s instructions:

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Law settlement Mediation

[12] The mere existence of a misunderstanding in
relation to settlement instructions does not render a settlement unenforceable.
The other factors mentioned by Osborne J.A. in Meilios v. Zagos, supra,
must also be considered. On balance, those factors favour declining to enforce
the settlement: no Order has been taken out and thus the pre-settlement
positions remain intact, apart from losing the benefit of the settlement the
defendant will not be prejudiced if the settlement is not enforced, the
plaintiff has not suggested any prejudice that would flow if the matter is
permitted to proceed to trial (apart from the fact that it may be necessary to
third-party Teachers, which I do not regard as significant prejudice), the
plaintiff would suffer the prejudice of being deprived of his day in court if
the settlement were enforced, and no third parties will be affected if the
settlement is not enforced.

22 Jan 09

Johnston v. William Day Holdings Limited, 2009 CanLII 1138 (ON S.C.)

Settlement Privilege §14.207 There are a number of conditions that must be present for the privilege to be recognized:

(a) a litigious dispute must be in existence or within contemplation;

(b) the communication must be made with the express or implied intention that it would not be disclosed to the court in the event negotiations failed; and

(c) the purpose of the communication must be to attempt to effect a settlement.

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Law privilege settlement

I do not think the law in this area recognizes the distinction proposed by the
defendants between a negotiation of preconditions to the commencement of
“without prejudice” negotiations and actual “without prejudice” negotiations.
the absence of a specific notation of “without prejudice,” even by experienced
counsel, is not dispositive.
1 more annotations...
- each case must be examined on its own facts

14 Oct 08

Dhaliwal v. Miller, 2008 CanLII 50800 (ON S.C.)

Marcoccia v. Gill 2007 CanLII 33 (ON S.C.), (2007) Canlii 33 (ONSC). In that decision, Wilkins, J. offers a thorough and comprehensive review of appropriate steps to be taken in presenting a proposed settlement for court approval including a review of the type of materials and evidence that is required in order to fully determine whether the settlement and the future management of the proceeds are in the interest of the minor or incompetent plaintiff.

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Law settlement guardian incompetent-plaintiff

09 Jul 08

Scanlon v. Standish, 2001 CanLII 28200 (ON S.C.)

outside the framework of existing proceedings, Rule 49 has no legal force

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Law offer counter-offer acceptance settlement Rule49

if Richard and Elaine did agree to a settlement, did he breach the terms of the
agreement,
Rejection or counter-offer by the offeree generally destroys the power to accept
the initial offer. The offeror upon receiving a rejection or counter-offer will
ordinarily feel free to deal elsewhere. It is not reasonable for the offeror to
send a counter-offer and yet expect the original offer to be held open.[
7 more annotations...
- the Rules derive their force from the existence of proceedings.
- Rogers v. lnnovacon can be confined in its application to an
  example of the exercise of discretion as to costs. In that case no issue arose
  whether the pre-proceeding offer had been rejected or was, by reason of a
  counter-offer, no longer available to be accepted. Mr. Rogers had “offered”
  to keep his offer open until 15 minutes after the trial began. It appears that
  he did so. Whether he was obliged to do so was not an issue before Sheard
  J. His offer was not put to the test by any attempt to resile from it.
- It is the law of contract which more than any other branch of the law, governs
  the relationship of every individual to every other person in the human race. It
  covers those dealings in every conceivable degree of relationship, from
  marriage, to employment, through to dealings with complete strangers, like the
  bailee in whose custody one parks a car, or the innkeeper where one spends a
  night, or the victualer where one eats, be it Maxim’s or McDonald’s. The
  individual may make dozens of contracts daily, from ones as apparently simple as
  purchasing food or fuel to others as complex as merging or acquiring a
  corporation or business.
- Because everyone contracts with others almost daily, it is critical for us to
  know with precision what effects our actions have, when our “offers” may or may
  not be accepted and precisely which of the promises we make the courts may
  enforce.
- It may be seen as anomalous that so important a law as that of contract is
  largely judge‑made. Perhaps it is essential that it be so, for only case law
  provides the flexibility to apply to the infinite variety of circumstances in
  which a contract may be made.
- If there is to be a second set of
  rules that governs when, for instance, an offer will be considered open for
  acceptance,[21] then people
  need to know with precision which set of rules govern them at a given time.
  
  [41]
  That time can be easily and certainly ascertained if it is limited
  to the time when a person is a “party to a [legal] proceeding”. One either is or
  one is not. But being a party to a contemplated legal proceeding is too vague a
  definition to be viable; it will cause injustice and confusion.
- outside the framework of existing proceedings, Rule 49 has no legal force,

Ferguson v. American bamkers insurance Co. of America, 2002 CanLII 19250 (ON S.C.)

Rule 49 can only apply to written offers to settle “in the proceeding”. This must mean that, to be effective under any branch of Rule 49, an offer must be made after an action has been commenced and not beforehand.

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Law Settlement Rule49

Rule 49 can only apply to written offers to settle “in the proceeding”.
This must mean that, to be effective under any branch of Rule 49, an offer must
be made after an action has been commenced and not beforehand.
[33] In any event, a contextual examination of the
letter tends to negative any possible inference in favour of it being treated as
an offer within the rule
1 more annotations...
- Mr. Gunn’s letter of February 21 cannot possibly be considered as part of an
  accepted offer within R.49.09 nor can it be definitively considered to be part
  of a concluded settlement agreement outside the framework of Rule 49 such that I
  somehow have the power or jurisdiction to order its return to the insurer at
  this stage of the action.

David Scrimshaw's Library tagged settlement → View Popular

Miksche Estate v. Miksche, 2009 CanLII 60409 (ON S.C.)

R. v. Lanthier, 2008 CanLII 13797 (ON S.C.)

Blackwell v. Dixon, 2009 CanLII 37345 (ON S.C.)

Chater v. York Central Hospital, 2009 CanLII 33022 (ON S.C.)

London (City) v. Medina Isovic, 2009 CanLII 30138 (ON S.C.)

Zesta Engineering Ltd. v. Durante, 2009 CanLII 29915 (ON S.C.)

Morgan v. Saquing, 2009 CanLII 16742 (ON S.C.)

Johnston v. William Day Holdings Limited, 2009 CanLII 1138 (ON S.C.)

Dhaliwal v. Miller, 2008 CanLII 50800 (ON S.C.)

Scanlon v. Standish, 2001 CanLII 28200 (ON S.C.)

Ferguson v. American bamkers insurance Co. of America, 2002 CanLII 19250 (ON S.C.)

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