Gianopoulos v. Olga Management Ltd. et al., (2006) 207 O.A.C. 58 (CA)

• Judge: Armstrong, Lang and MacFarland, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: February 01, 2006
• Jurisdiction: Ontario
• Citations: (2006), 207 O.A.C. 58 (CA)

Gianopoulos v. Olga Mgt. Ltd. (2006), 207 O.A.C. 58 (CA)

MLB headnote and full text

Temp. Cite: [2006] O.A.C. TBEd. FE.037

George Gianopoulos (appellant) v. Olga Management Limited , Constantine Kranias and Dr. Anastasia Kranias (respondents)

(C43585)

Indexed As: Gianopoulos v. Olga Management Ltd. et al.

Ontario Court of Appeal

Armstrong, Lang and MacFarland, JJ.A.

February 1, 2006.

Summary:

The plaintiff sued the defendants for libel. The action was settled pursuant to confidential minutes of settlement. One of the terms of the settlement required the defendants to publish an apology. The defendants published an apology, which included a copy of the court's order stating that the action had been dismissed pursuant to the settlement. The plaintiff stated that the publication renewed discussion about the defendants' libel of him and the defendants had achieved a form of victory in the public mind and personal vengeance against him. He stated that the defendants' breach of confidentiality was evidence of their bad faith and that they had always intended that the community believe that they had "won" the case. This, he submitted was a repudiation of the settlement. He applied to set aside the settlement and consent order so that the action could be retried.

The Ontario Supreme Court, in a decision reported at [2005] O.T.C. 289, dismissed the application. The defendants' alleged breach of the confidentiality provision that was contained in the settlement did not constitute a fundamental breach. The plaintiff conceded that there was no fundamental breach because the defendants had both paid the damages agreed upon in the settlement and had published the required apology. The plaintiff appealed, arguing that the court should grant relief under Civil Procedure Rule 49.09 which provided remedies for non-compliance with an accepted offer of settlement.

The Ontario Court of Appeal dismissed the appeal. Rule 49.09 did not apply.

Practice - Topic 6

General principles and definitions - Application of practice rules - The plaintiff sued the defendants for libel - The action was settled pursuant to confidential minutes of settlement - The plaintiff's application to set aside the settlement on the grounds that the defendants breached the confidentiality provision was dismissed - The motions judge held, and the plaintiff conceded, that there was no fundamental breach - The plaintiff appealed, arguing that the court should grant relief under Civil Procedure Rule 49.09 which provided remedies for non-compliance with an accepted offer of settlement - The Ontario Court of Appeal dismissed the appeal - Rule 49.09 was a procedural rule applicable to the acceptance and subsequent non-compliance with an offer to settle - Rule 49.09 did not assist the plaintiff because (1) the settlement was not by acceptance of an offer to settle but by execution of minutes of settlement; (2) the defendants did comply with two fundamental terms of the minutes of settlement: the payment of damages and the publication of an apology; and (3) the rule was procedural in nature and did not change the substantive law on the breach of contract.

Practice - Topic 9857

Settlements - Setting aside - Grounds - [See Practice - Topic 6 ].

Statutes Noticed:

Rules of Civil Procedure (Ont.), rule 49.09 [paras. 2, 3].

Counsel:

Glenn Cohen, for the appellant;

Jonathan Stainsby, for the respondents.

This appeal was heard and decided on February 1, 2006, by Armstrong, Lang and MacFarland, JJ.A., of the Ontario Court of Appeal. The following written endorsement of the Court of Appeal was delivered on February 9, 2006.