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Fridays With Rogers Partners

At our weekly firm meeting, we discussed the case of Bouzanis v. Greenwood et al, 2022 ONSC 5262.  The decision involves a motion by the defendants to enforce a settlement.

The plaintiff’s lawyer e-mailed the defendants’ lawyer indicating that the plaintiff was offering to settle the litigation on the basis of a dismissal without costs.  The defendants’ lawyer responded that he had instructions to consent to a dismissal without costs, provided that the plaintiff executes a full and final release in a particular form.  The release contained a confidentiality clause.

The plaintiff’s lawyer indicated that his client was not willing to sign the release that was provided.  The plaintiff’s lawyer took the position that by requiring the particular release to be executed, the defendants added a condition to the settlement, thereby refusing the plaintiff’s offer and making a counter-offer.  The plaintiff withdrew her offer to settle.

The defendants took the position that there was a binding settlement and moved to enforce the settlement.

Justice Hooper indicated that it is well established that a customary full and final release is an implied term of a settlement, unless the parties agree otherwise.  However, a confidentiality clause does not form part of a standard general release. 

Justice Hooper found that the defendants made the execution of the particular form of release with a confidentiality clause a condition of the settlement.  It became an essential term of the agreement.

Since the plaintiff did not agree with executing the release with a confidentiality clause, Justice Hooper held that there was no binding settlement and the defendants’ motion to enforce the settlement was dismissed.