Michael W. Fleury v. Bassman Paulus, et al.

(Ontario) (Civil) (By Leave)


Civil procedure - Pre-trial conference - Civil procedure — Pretrial conference — Parties settling motor vehicle negligence claim at pretrial after plaintiff’s counsel making statements about potential witness testimony —Defendant’s counsel learning of witness testimony frailties and renouncing settlement agreement — Plaintiff seeking to enforce terms of agreement — Whether and to what extent counsel and parties should rely on representations of opposing counsel — When can lawyers accept and rely, without further verification, on opposing lawyer’s word as “fact” as opposed to disregarding it as “advocacy”.



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The applicant and respondents were involved in a motor vehicle accident in November 2008 when the vehicle operated by Mr. Fleury struck the Paulus family vehicle from behind at an intersection. The Paulus family brought an action for damages against Mr. Fleury. The parties and their counsel appeared at a pre trial conference and causation was in issue. During that conference, counsel for the Paulus family stated that he had “independent” witnesses to the collision who would make “good witnesses” and corroborated his clients’ story about the accident. Mr. Fleury’s counsel agreed to settle the claim. Immediately after the pretrial, Mr. Fleury’s counsel learned that the witnesses had difficulty communicating in English and that they also knew the Paulus family. Mr. Fleury’s counsel wrote to the plaintiffs’ counsel to repudiate the settlement. The Paulus family moved to enforce the settlement. The motion judge dismissed their motion. This decision was overturned on appeal.