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Given the long delay in litigation, the appellant's failure to retain counsel or provide evidence of incapacity, failure to attend pretrial and failure to meaningfully contest the settlement, the motion judge reasonably exercised her discretion to deny an adjournment and to enforce the settlement; the appeal was dismissed and costs awarded.
Source excerpt
The Court of Appeal held that the settlement could properly be enforced by motion in the ongoing action, the limitation defence did not bar delivery of the release in the circumstances, and where a settlement is silent as to release form the court must interpret the settlement and may order a specific release; applying that analysis here required a full mutual release including a no claims over clause but without an added indemnity beyond the specific surviving indemnities in the attached Undertaking.
Source excerpt
The court enforced a settlement reached by correspondence and held the release was limited to claims arising from the litigation, not unrelated claims.
The motion judge correctly found the appellant failed to establish incapacity or any legally justifiable reason to set aside the settlement; the Court of Appeal agreed and dismissed the appeal, upholding the settlement, consent order and the costs award.
Source excerpt
The court refused double costs because a $1 settlement offer excluding costs did not qualify under the former costs rules. Ordinary costs were awarded on Scale B.
The court dismissed a late pre-trial application to remove references to a discontinued defendant from the Statement of Claim, finding prejudice to the remaining defendants.
The court allowed two claimants to file late Opt-In forms under a breast implant settlement, finding denial would leave them without any other compensation route.
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