Laven Associates Limited v. Gary Tenenbaum, ONSC CV-12-446669 (Ont. Construction Lien Master) June 2, 2015
RE: what should be inferred into the usual and ordinary form of Full and Final Release upon the settlement of an action
RE: the consequences of the disclosure of settlement discussions to a trial judge or master before the conclusion of a trial
In this case we successfully opposed a motion by a defendant owner to enforce a settlement in a lien action on the eve of trial. The defendant had purported to accept an offer which required the exchange of a standard release satisfactory to counsel acting reasonably. The complicating factor was that the owner had, without the plaintiff’s knowledge, commenced a separate action against the builder of the same improvement, in which the owner had made allegations which overlapped with his allegations against the plaintiff in the lien action. The owner took the position that it was entitled to accept the plaintiff’s offer in the lien action without including a ‘claims over clause’ in relation to his action against the builder, so as to protect the trade contractor in that regard. The defendant’s counsel also wrote the Court and disclosed the particulars of the prior offer and of the purported acceptance. The decision is important in that it addressed what should be impliedly included in a standard form full and final release (including a claim over clauses), as well as how the Court should proceed where offers to settle, and settlement discussions, are disclosed to the trial court before trial is concluded.