Puri Consulting Ltd. v. Kim Orr Barristers PC, 2015 ONCA 727

• Judge: Gillese, van Rensburg and Miller, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: October 09, 2015
• Jurisdiction: Ontario
• Citations: 2015 ONCA 727;(2015), 341 O.A.C. 87 (CA)

Puri Consulting v. Kim Orr Barristers (2015), 341 O.A.C. 87 (CA)

MLB headnote and full text

Temp. Cite: [2015] O.A.C. TBEd. OC.035

Puri Consulting Limited (plaintiff/appellant) v. Kim Orr Barristers PC (defendant/respondent)

(C60161; 2015 ONCA 727)

Indexed As: Puri Consulting Ltd. v. Kim Orr Barristers PC

Ontario Court of Appeal

Gillese, van Rensburg and Miller, JJ.A.

October 29, 2015.

Summary:

At issue on a rule 49.09 motion was whether a settlement offer to accept "$50,000 plus HST in full and complete satisfaction of the [plaintiff's] claim" included the plaintiff's claim for costs or if the silence in the offer on the matter of costs meant that rule 49.07(5)(b) of the Rules of Civil Procedure applied.

The Ontario Superior Court, in a decision reported at 2015 ONSC 577, held that the offer was unambiguous and "full and complete satisfaction" meant that the offer was inclusive of costs, and that although the defendant waited several months before it accepted the offer on the eve of the trial, rule 49.07(5)(b) did not apply. The court awarded the defendant $5,000 in costs. The plaintiff appealed.

The Ontario Court of Appeal allowed the appeal. The offer did not provide for the disposition of costs and, pursuant to rule 49.07(5), the plaintiff was entitled to costs assessed to the date on which the defendant's acceptance of the offer was served. The court reversed the costs award in the court below and ordered the defendant to pay the plaintiff $6,000 all-inclusive for costs on the rule 49.09 motion.

Contracts - Topic 7406

Interpretation - General principles - Interpretation by context - At issue was whether a settlement offer to accept "$50,000 plus HST in full and complete satisfaction of the [plaintiff's] claim" included the plaintiff's claim for costs or if the silence in the offer on the matter of costs meant that rule 49.07(5)(b) of the Civil Procedure Rules applied - Rule 49.07(5) provided that where an accepted offer did not provide for the disposition of costs, the plaintiff was entitled to costs assessed to the date that the notice of acceptance was served - The motion judge held that the offer was unambiguous and was inclusive of costs, and that although the defendant waited several months before accepting the offer on the eve of the trial, rule 49.07(5)(b) did not apply - The Ontario Court of Appeal allowed the plaintiff's appeal - Even though the judge believed that the words "in full and complete satisfaction" were unambiguous, she should have considered the context in which the agreement was made and the other words in the offer (such as "claim") - She treated "claim" as synonymous with "action" and did not consider or resolve the question of what "claim" in particular the offer was meant to settle - The plaintiff claimed damages, interest and costs as separate items - Which of those claims was meant to be settled was called into question - Therefore, the meaning of the words "in full and complete satisfaction" was ambiguous - The judge should have considered the rule 49 context, including the purpose of that rule, the timing of the offer and its acceptance in the litigation, and the fact that the parties were lawyers, and represented by counsel, so that they knew and appreciated the context in which they concluded their agreement - The judge also erred in applying contra proferentem to the offer without first attempting to determine its meaning by reference to the factual matrix - Interpreting the offer in that context, the court concluded that it did not provide for the disposition of the plaintiff's costs - Rule 49.07(5)(b) applied and the plaintiff was entitled to costs in addition to the settlement amount - See paragraphs 13 to 34.

Contracts - Topic 7426

Interpretation - Ambiguity - What constitutes ambiguity - [See Contracts - Topic 7406 ].

Contracts - Topic 7428

Interpretation - Ambiguity - Relevant considerations - [See Contracts - Topic 7406 ].

Contracts - Topic 7433

Interpretation - Ambiguity - Contra proferentem rule - [See Contracts - Topic 7406 ].

Practice - Topic 9864

Settlements - Interpretation - [See Contracts - Topic 7406 ].

Practice - Topic 9871

Settlements - Costs - [See Contracts - Topic 7406 ].

Words and Phrases

In full and complete satisfaction - The Ontario Court of Appeal considered the meaning of this phrase as used in an offer to settle - See paragraphs 13 to 34.

Cases Noticed:

Dumbrell v. Regional Group of Companies Inc. et al. (2007), 220 O.A.C. 64; 85 O.R.(3d) 616; 2007 ONCA 59, refd to. [para. 16].

Somers v. Fournier et al. (2002), 162 O.A.C. 1; 60 O.R.(3d) 225 (C.A.), dist. [para. 20].

Creston Moly Corp. v. Sattva Capital Corp., [2014] 2 S.C.R. 633; 461 N.R. 335; 2014 SCC 53, refd to. [para. 25].

Rooney v. Graham (2001), 144 O.A.C. 240; 53 O.R.(3d) 685 (C.A.), refd to. [para. 28].

Statutes Noticed:

Rules of Civil Procedure (Ont.), rule 49.07(5)(b) [para. 8].

Counsel:

Allan Sternberg, for the appellant;

Won J. Kim, for the respondent.

This appeal was heard on October 9, 2015, by Gillese, van Rensburg and Miller, JJ.A., of the Ontario Court of Appeal. van Rensburg, J.A., released the following decision on October 29, 2015.