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Civil Litigation - Settlement - Enforcement. Jaszberenyi v. Heyder
In Jaszberenyi v. Heyder (Fed CA, 2026) the Federal Court of Appeal dismissed an appeal, here brought against an order that "dismissed her motion for leave to opt out of a class proceeding brought on behalf of, among others, women and men who experienced sexual misconduct while serving in the Canadian Armed Forces".
Here the court considers the interesting issue of it's jurisdiction within the terms of a settlement agreement:[1] .... The proceeding was certified in accordance with a settlement agreement negotiated on behalf of the parties and approved by the Federal Court. Citing this Court’s decision in Waldron v. Canada (Attorney General), 2024 FCA 2 (Waldron), leave to appeal to SCC refused, 41141 (May 30, 2024), the supervising judge determined that he lacked authority to grant Ms. Jaszberenyi’s request to opt out.
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[6] Regarding the merits of Ms. Jaszberenyi’s appeal—specifically, whether the Federal Court had the authority to grant her leave to opt out of the class proceeding—the scope of the supervising judge’s jurisdiction to intervene is a question of law, which is reviewed for correctness. In contrast, the interpretation of the settlement agreement is a question of mixed fact and law, reviewed on a deferential palpable and overriding error standard: Waldron at paras. 64‑67.
[7] As Côté J., speaking for the majority on this issue, as noted in Waldron at paragraph 116, stated in J.W. v. Canada (Attorney General), 2019 SCC 20, at paragraph 120:In the context of the supervision of a settlement agreement, the terms of the agreement are determinative. While supervising judges are not free to approve an agreement that fully ousts their supervisory jurisdiction, their authority is limited and shaped by the terms of the agreement, once it is approved and determined to be fair, reasonable and in the best interests of the class. [8] Here, the supervising judge concluded that granting Ms. Jaszberenyi’s request to opt out would amount to a significant alteration of the express terms of the settlement agreement, and therefore, he lacked the authority to do so. After considering Ms. Jaszberenyi’s submissions, I am not persuaded that there was any reviewable error in the supervising judge’s determination of his authority under the circumstances. As this Court stated in Hébert v. Wenham, 2020 FCA 186 (Wenham), leave to appeal to SCC refused, 39518 (June 10, 2021), at paragraph 10, the Court "“cannot meddle by changing the settlement terms, imposing its own terms or promoting the interests of certain class members over those of the whole class.”"
[9] Ms. Jaszberenyi cites Wenham at paragraph 22 for the proposition that class members can opt out after a deadline where the evidence demonstrates they were unable to make a fully informed and voluntary decision about remaining in the class; she asserts that her situation was precisely such, given her medical history and her counsel’s failure to advise her of her opt-out option. However, I find Ms. Jaszberenyi’s reliance on Wenham to be misplaced. The decision of 1250264 Ontario Inc. v. Pet Valu Canada Inc., 2013 ONCA 279, 115 O.R. (3d) 653 (Pet Valu), upon which Wenham relied, and 1176560 Ontario Ltd. v. Great Atlantic & Pacific Co. of Canada Ltd., 2004 CanLII 16620 (ON SCDC), 70 O.R. (3d) 182, leave to appeal to ONCA refused, M31109 (May 11, 2004), which Pet Valu cited, involved pre-settlement situations—unlike the present matter. Moreover, the concept of "“informed and voluntary decision”" in those cases referred to circumstances where parties were coerced through misinformation, threats, or intimidation into not opting out, thereby undermining the settlement process. In this case, there is no suggestion that Ms. Jaszberenyi was subjected to any coercion or undue influence preventing her from opting out.
[10] Ms. Jaszberenyi contends that the difference between the late claims provision— which allows the Court discretion to grant leave for class members to submit late claims—and the opt-out provision, which does not include such discretion, is discriminatory. I cannot agree. The settlement agreement is a contract negotiated and agreed upon as part of a broader compromise between parties represented by sophisticated counsel, and it is not for the Court to question why certain provisions allow for options that other provisions do not.
[11] In addition, I can find no palpable and overriding error in the supervising judge’s determination, after interpreting the relevant clauses, that granting Ms. Jaszberenyi’s request would constitute a significant change to the express terms of the settlement agreement, tantamount to rewriting the settlement agreement, something the Court cannot do. . Munyal v. Baldwin
In Munyal v. Baldwin (Ont CA, 2026) the Ontario Court of Appeal considers a R49.09 enforcement motion ['Failure to Comply with Accepted Offer']:[7] On a r. 49.09 motion, the first step is to consider whether an agreement to settle has been reached. The second step is to consider whether, on all the evidence, the agreement should be enforced: Capital Gains Income Streams Corp. v. Merrill Lynch Canada Inc. (2007) 2007 CanLII 39604 (ON SCDC), 87 O.R. (3d) 464, at paras. 9-10.
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[10] Turning to the second step, the motion judge observed that the real dispute appeared to be between the appellant and the scope of authority granted to his lawyers. The motion judge also observed that it was not disputed that the lawyer for the respondent did not know that the appellant allegedly did not authorize the offer. Citing this court’s decision in Scherer v. Paletta, 1966 CanLII 286 (ON CA), [1966] 2 O.R. 524, he held that in these circumstances, the dispute between the appellant and his lawyers regarding the scope of their authority was not a sufficient reason to set aside the settlement agreement. The motion judge then went on to consider other factors. He did not find that there was any prejudice in enforcing the settlement or that the settlement was unreasonable. He rejected the appellant’s argument that the terms of the settlement should not be enforced.
[11] In sum, the motion judge considered all the relevant factors in granting the respondent’s motion under r. 49.04. As with the exercise of any discretionary power, this court will defer to the motion judge’s exercise of his discretion in the absence of any legal error, material misapprehension of the evidence, or a failure to consider material evidence. We see no basis to intervene. . 2853753 Ontario Inc. v. Prive Developments Corp.
In 2853753 Ontario Inc. v. Prive Developments Corp. (Ont CA, 2025) the Ontario Court of Appeal dismissed an appeal, here from a settlement enforcement judgment.
Here the court considered a penalty clause triggered where a settlement was defaulted on:The application judge did not err in finding the penalty clause was enforceable
[8] The appellants argue that the penalty clause was punitive rather than compensatory and should have been assessed under the principles of unconscionability and relief from forfeiture given the context of the breaches alleged and obstacles created by the respondents.
[9] There is no merit to this argument. The application judge applied the relevant law and found that the penalty clause was not disproportionate, as it represented less than ten percent of the total amount owing under the settlement agreement. Nor was it unconscionable for the respondents to receive additional money for late payment in the circumstances. As the application judge put it, the settlement agreement was a second chance for the appellants. Enforcing the penalty clause was reasonable in the circumstances. . Haider v. Rizvi
In Haider v. Rizvi (Ont CA, 2023) the Court of Appeal considered an important issue about a central trigger of the main s.4 Limitations Act, that of a the need for a "proceeding":Basic limitation period
4 Unless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered. In this case, the parties had ostensibly settled litigation but left the final drafting of a release to later (in this case much later), as is commonly the practice. In this case, while there were Minutes of Settlement which dealt with most of the material terms, the balance of the release was assumed to follow 'standard' (presumably, 'standard to the profession') terms.
So when active problems arose in the terms of release but after the two-year limitation period, the court faced the issue of how - procedurally - to treat the settlement, ie. as a motion within the existing (but now in abeyance) case file or as a new litigation file. Here, this perhaps seemingly unimportant procedural issue made a difference because if it were the latter (ie. a new 'proceeding') then the limitation would have something to count itself by in terms of limitations. If not, then the claim was already commenced at the beginning of the 'settled' case:2. The appellant does not have a limitation period defence to the delivery of a release
[25] The appellant argues that the motion judge erred in refusing to dismiss the motion on the basis that the respondent’s claim for a Full and Final Mutual Release was statute-barred. He contends that the claim for performance of the Minutes of Settlement was a new cause of action, that required the commencement of a new proceeding, or at least the amendment of pleadings in the existing action, which could not occur more than two years after the date of the settlement agreement.
[26] First, I note that the appellant has identified no error in the motion judge’s conclusion that the respondent’s claim arose only at the time that the appellant refused to deliver any release at all, and not at the time the Minutes of Settlement were signed or while the parties were in negotiations about the content of the release. On that factual finding, there was no question of the expiry of a limitation period.
[27] Second, and in any event, I see no basis for the appellant to rely on the expiry of a limitation period in this case. It is unnecessary to address whether and in what circumstances a limitation period might bar subsequent proceedings or claims to enforce aspects of a settlement agreement: in this case we are concerned only with the delivery of a release. As I have already noted, the delivery of a release was properly sought in the context of a motion in an ongoing action. The respondent was not required to start a new action or to amend his pleadings to seek an order for an exchange of releases as part of the completion of the settlement.
[28] Even if no Full and Final Mutual Release had been delivered, the respondent was released by the terms of the Minutes of Settlement, subject only to the Undertaking. The settlement of a claim implies an obligation to furnish a release absent agreement to the contrary: Hodaie v. RBC Dominion Securities, 2012 ONCA 796, at para. 3; Fieguth, at pp. 121-122; Bogue v. Bogue (1999), 1999 CanLII 3284 (ON CA), 46 O.R. (3d) 1 (C.A.), at para. 13; Umholtz v. Umholtz (2004), 2004 CanLII 14183 (ON SC), 238 D.L.R. (4th) 736 (Ont. S.C.), at p. 738. So long as the settlement remains on foot, it will bar subsequent proceedings that fall within its terms. The absence of a signed release makes no practical difference to the finality of a settlement: see e.g., Gedco Excavating Ltd. v. Aqua-Tech Dewatering Co., [2014] O.J. No. 2513 (S.C.), at paras. 26-28.
[29] I would therefore reject this ground of appeal. . Stefanchuk v. LeLiever
In Stefanchuk v. LeLiever (Ont CA, 2022) the Court of Appeal considered the simple test for a court to enforce a settlement:[4] The application judge applied the two-step test set out in this court’s decision in Capital Gains Income Streams Corp. v. Merrill Lynch Canada Inc. (2007), 2007 CanLII 39604 (ON SCDC), 87 O.R. (3d) 464, which asks first, whether there was an agreement to settle, and second, whether the agreement should be enforced.
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