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Simon Shields, Lawyer

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Since 2005

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Offers - Rescission

Contracts - Rescission

McAfee v McAfee (Ont CA, 2017)

Some lawyer (and I expect their insurer as well) breathed a sign of relief at this ruling:
[1] The appellant purported to accept portions of the respondent’s offer to settle, most if not all of which favored him, relying on the severability clause that had been put in the offer. In particular, he accepted the term providing that he did not have to pay arrears of child support or spousal support from the date of separation to date.

[2] He did not accept any other essential term of the offer in exchange to resolve the matter. Within hours of the purported acceptance, counsel for the respondent advised the appellant that the severability clause had been included in error and that his partial acceptance of the offer was rejected.

[3] The court has the jurisdiction to correct an inadvertent error in an offer to settle: Milos v. Zagas, 1998 CanLII 7119 (ON CA), [1998] 38 O.R. (3d) 218.

[4] We agree with the motion judge that the mistake made by the respondent’s counsel was obvious on the face of the offer and that the severability clause made no sense in the context of this offer. As the motion judge put it at para. 8 of his reasons:
To allow the [appellant] to accept the clauses that financial benefit him and require the [respondent] to litigate all other clauses more than a year after the offer was submitted would be blatantly unfair.

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