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Public Interest - Public Policy. Poirier v. 2621892 Ontario Inc.
In Poirier v. 2621892 Ontario Inc. (Ont CA, 2026) the Ontario Court of Appeal dismissed an appeal, here brought against a motion judge's order "dismissing their motion to add ... a defendant to their action".
This case involves a contract (here styled as a 'settlement') between the appellant and a non-party, this not to add the non-party "as a defendant in exchange for his affidavit evidence and cooperation as a witness" - the nature of which triggers in my mind concerns of public policy not directly addressed by the court:[8] The appellants’ main argument is that the motion judge erred in failing to consider whether Mr. Villeneuve breached the settlement agreement by finding that he had provided “demonstrably false” affidavit evidence. The appellants’ support for this argument consisted of an affidavit by their counsel. Although she was not directly involved in negotiating or concluding the settlement agreement, she reviewed the Snapchat video capturing the altercation and referred to various pieces of evidence that she said proved the falsity of Mr. Villeneuve’s affidavit evidence. Specifically, she asserted in her affidavit that contrary to his affidavits, screenshots from the Snapchat video demonstrated the untruthfulness of Mr. Villeneuve’s statements that two men were already on the ground when he arrived out front of the bar and that he did not hit one of the appellants.
[9] The appellants also say that if the motion judge could not determine the issue of whether Mr. Villeneuve struck one of the appellants, he should have allowed the motion to add Mr. Villeneuve as a party and, in turn, Mr. Villeneuve could have relied on the settlement agreement as part of his defence to the claim.
[10] We agree with the appellants’ argument that production of a “demonstrably false” affidavit could amount to a breach of the settlement agreement, notwithstanding the agreement not to add Mr. Villeneuve as a defendant “no matter what his evidence is”. We do not read the reference by Mr. Villeneuve’s counsel and the motion judge to the phrase “no matter what his evidence is” as including and therefore condoning the production of a demonstrably false affidavit. Rather, “no matter what his evidence is” was intended and understood to allow for evidence from Mr. Villeneuve that might be unfavourable or unhelpful to the appellants.
[11] The appellants’ disappointment with Mr. Villeneuve’s affidavits did not arise from newly discovered evidence that revealed their untruthfulness but from a reassessment of evidence already in their possession before the settlement agreement was concluded. The appellants entered into the settlement agreement with full knowledge of the contents of the video and Mr. Villeneuve’s position that he was not involved in the altercation. The appellants’ disagreement with Mr. Villeneuve’s position was a live issue before the settlement agreement was concluded. Nevertheless, the appellants agreed not to add Mr. Villeneuve “no matter what his evidence is”.
[12] Although it is not clear how the argument was framed before the motion judge, we note that the motion judge did not explicitly determine whether Mr. Villeneuve’s affidavits were “demonstrably false” as alleged. Nevertheless, his rejection of this allegation of falsity is implicit because the appellants did not meet their evidential burden to prove that the affidavits were demonstrably false. In particular, there was no evidence clearly showing that Mr. Villeneuve struck either of the appellants. Moreover, in his second affidavit, Mr. Villeneuve corrected his statement and acknowledged that the video showed that there was one man on the ground when he arrived out front of the bar. Counsel’s opinion expressed in an affidavit did not satisfy the appellants’ burden of proof. Nor was it sufficient for the appellants to simply raise arguable issues to be determined at trial.
[13] The motion judge’s interpretation of the settlement agreement and his finding that the appellants had reneged on the agreement by seeking to add Mr. Villeneuve as a defendant are entitled to appellate deference, unless the appellants can demonstrate that he committed a palpable and overriding error or an extricable error of law that would invoke a correctness standard of review: Crosstown Transit Constructors v. METROLINX, 2019 ONCA 240, 93 C.L.R. (4th) 155, at para. 11; Remedy Drug Store Co. v. Farnham, 2015 ONCA 576, 389 D.L.R. (4th) 671, at para. 59.
[14] The motion judge committed no such errors. The appellants received what they bargained for. There is no basis to intervene.
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