The motion judge refused to impose the agreement of 850,000 $US. He admitted that the term „independent“ probably led the defendants to believe that the witnesses were not related to the applicants and that, as such, they would be completely impartial if summoned to the trial. The judge concluded that the lawyer`s representation in the preliminary proceedings was in fact a civil fraud. In our last newsletter (October 2016), we told the sad story of a transaction that went wrong and the creditor`s inability to make a judgment of that transaction (Finness Yachting Inc. v. Menzies 2015 BCSC). We can now report that the creditor challenged the decision before the British Columbia Court of Appeal and the appeal was dismissed. In this newsletter, we report on another transaction that went wrong and an attempt by the creditor to cancel the transaction and obtain judgment on the amount originally claimed before compromising the amount requested: Clark v. 189557 Ontario Inc., a decision of the Ontario Superior Court of Justice in 2016.
The worker argued that the contract should be cancelled because the employer had provided false or misleading information. He argued that he would never have entered into the settlement agreement if he had not relied on the employer`s assurances to him that he would be fulfilling his obligations under the settlement agreement. However, beyond this bald claim, the worker never provided evidence of the alleged allegations. Worse, the evidence showed that the employer had tried to make all the payments, but even at the time of the agreement, the worker knew that the employer was in a precarious financial situation. After the last payment, the employer simply had no funds for further payments. What is the standard for verifying whether or not a party has refused a settlement agreement? The Ontario Court of Appeal answered this important question in Remedy Drug Store Co. Inc. v.
Farnham, published on August 19, 2015. In summary, the Court held that a „mixed“ standard was appropriate, reflecting the fact that the refusal test was a question of law, but whether a party refused a settlement agreement is a question of fact. In this regard, the decision could be verified on the basis of a standard of accuracy, because the judge had misdicated the law and it was „not insignificant“ false testimony. Reviving the underlying dispute instead of using the agreement 37 There is a strong public interest in settling disputes by agreement. As Abella J. in Sable Offshore Energy Inc. v. Ameron International Corp., 2013 SCC 37at, para.
11, `[t]he parties shall enable the parties to obtain a mutually acceptable solution to their dispute, without increasing the personal and public costs and the time of a dispute`. Accordingly, court policy is to promote the transaction and impose settlement agreements: Catanzaro v. Kellogg`s Canada Inc., 2015 ONCA 779. This judicial policy contributes to the effective administration of justice: Kelvin Energy Ltd. v. Lee,  3 pp.C.R. 235, at 259, zitiert Sparling v. .