After a settlement was reached in a recent legal case, the appellant disputed the finding of the basis of a settlement. Meanwhile, the other party cross-appealed because the judge refused to enforce the release, which was a term of the settlement.
The person appealing said she did not understand the settlement and that her lawyer was not authorized to act on her behalf, but the Court of Appeal noted that she was represented throughout the entire mediation.
Not only that, she personally signed the settlement. In addition, the court found that the appellant accepted the benefit of payments under the settlement and refused to return those payments.
The court concluded there was no evidence of any limitation on the appellant’s lawyer’s authority. Therefore, the settlement was a complete answer and there was no basis to deny relief of the release, which the appellant now refused to sign. The court imposed costs against the appellant for failing to live up to the settlement.
This indeed is an important case where the courts encourage settlements. Not only that, if you have a lawyer who appears to have your full authority and you sign a document confirming settlement, do not expect any sympathy if you have second thoughts and try to wiggle out.
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A landlord entered into a commercial lease with a tenant corporation. When the corporation stopped paying rent, the landlord sued not only the corporation but two of its directors, shareholders who were allegedly “guarantors”.
As the lease showed, the two directors had signed as “co-covenantors” and the word “guarantor” was not used in the lease.
The court determined that guarantor and covenantor are not the same. The guarantor was liable “only if the principal debtor defaulted”. A covenantor is “primarily liable” even in the absence of a default by the debtor. Also, the landlord failed to prove that the individuals assumed personal liability for the debts of the corporation as a convenantor. That is because what they were signing was not properly explained to them and the doctrine of “non est factum” succeeded. The court went so far as to say that a landlord who uses an agent to explain the terms of the lease, knowing that the tenants principals (of the corporation) speak little English, has a duty to follow up personally with the people they wish to bind to personal coverage. This is certainly a far-reaching goal, according to the British Columbia court – that the plaintiff must use reasonable care to confirm the communication of its position with the non-English speaking signees.
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In Vancouver, some people practised Falun Gong and used banners and built a makeshift meditation hut in front of the Chinese consulate on a grassy portion of the city street allowance. The municipality sought an injunction to remove the meditation hut, stating it contravened the street and traffic by-laws.
The court held that the banners and the hut were “means” of expression and worthy of protection. It ruled the by-law was not “minimally impairing” and infringed the Charter of Rights and Freedom.
Donald Lapowich, Q.C. is a partner at the law firm of Koskie, Minsky in Toronto, where he practices civil litigation, with a particular emphasis on real estate litigation and mediation, acting for builders, real estate agents and lawyers.
