Canada: Settling For It: Two New NS Decisions On Settlement Agreements And Releases


It sounds simple: Two disputing parties, hoping to resolve their disagreement without drawn-out court proceedings, will mutually agree to a settlement on clear terms; release each other from all claims; and move on with their lives. 

But we know real life isn't that simple, and stumbling blocks often appear on the road to settlement. The parties might disagree about the terms of the alleged settlement, the details of the mutual release that follows, or both. What happens then?

Well, they end up in court after all.

Two recent Nova Scotia decisions canvass these issues, providing a welcome review of basic principles about settlements and releases. Both cases involved motions to enforce a settlement agreement under Nova Scotia Civil Procedure Rule 10.04.

Decision 1: Certified Design Consulting Inc v Alex Lane Properties Inc

First up was Certified Design Consulting Inc v Alex Lane Properties Inc, 2015 NSSC 367. This was a construction case. ALP wanted to develop a barn on its property into a residential building, and reached an agreement for CDC to become the general contractor (para 3).

Things did not go as planned with the construction work. ALP stopped paying CDC; CDC eventually filed a lien claim under the NS Builders' Lien Act, and also commenced a lawsuit against ALP (para 8). The parties tried to work out their dispute after running into each other at a building supply store (para 9). Many back-and-forth emails followed. 

The "critical email exchange" happened on September 14, 2015 (para 11). It's worth setting out those emails, because they're written—as these kinds of agreements often are—in the parties' own words, not drafted by lawyers. Here's what the principal of ALP wrote to the principal of CDC (see para 26):

I had the chance to meet with Kirk and Ross at Progressive Cabinets. They showed me a sale invoice for the cabinets for a total of $45K which was $6K higher than the contract allowance.

At this point, we are confirming that if the lawsuit is removed and the lien is removed, both part[ies] can part their separate ways.

You can have your lawyer send an agreement to Peter stipulating that these items will or have been done and that['s] it. We will take over the cabinets with Progressive. We expect this to be done in a expeditious manner.

The principal of CDC responded, and agreed (see para 27):

OK, I agree with your offer. I will have my lawyer lift the lien and law suit removed. This has concluded our dealings period. There will be no further communications, business or legal dealings between Certified Design Consulting Inc or Alex Lane Properties. The contract is considered null and void, the complete issue is resolved period. Our relationship is concluded period. I have contacted my lawyer, instructed her to do the necessary paper work.

But subsequent events complicated matters. As the Court put it: "What was thought to have been a final settlement went off the rails when legal counsel for CDC...prepared mutual release documents and a consent order (that would serve to both vacate the lien and dismiss the legal action) and sent them to [APL's counsel] for his review and approval" (para 13).

APL challenged two terms of the release that CDC's lawyer provided: (1) The provision releasing the parties from all future claims, which "would encompass any presently unknown deficiencies which might later be discovered"; and (2) the provision preventing ALP "from ever bringing any kind of claim or action against any third party who might, in turn, claim contribution or indemnity against CDC" (para 15).

Furthermore, ALP said "it was a condition of the purported settlement agreement that its terms be subject to review and approval by its lawyer," so it was entitled to wait and see what CDC's counsel sent before confirming the settlement (para 16).

The Court disagreed – noting that the settlement offer, which came from ALP, said nothing about being contingent on approval by ALP's own lawyer (paras 32-35). The emails exchanged on September 14 created a final and binding settlement agreement; the documentation to come was just meant to formalize that agreement, not affect its substance (paras 36, 39).

The Court also rejected APL's challenge to the "future claims" provision, finding that the parties clearly intended to "end their contractual relationship and go their separate ways" (para 39). 

However, there was something to APL's second point, about third party claims. According to the Court, "there was never any discussion at any point in the settlement negotiations of the requirement that ALP undertake not to pursue a claim against any third parties who might claim contribution or indemnity against CDC" (para 44). The Court ordered a revised release without that clause, but otherwise declared the settlement agreement to be enforceable (paras 44-46).

Decision 2: Webber v Boutilier

The second decision was Webber v Boutilier, 2016 NSSC 5. The parties agreed that they had reached a settlement of two different personal injury claims at a judicial settlement conference in June 2015. Afterwards, defence counsel sent a standard release to plaintiff's counsel, which he returned "with a large 'X'" through two paragraphs.

The contentious paragraph was the "clause requir[ing] the plaintiff to hold the defendants harmless from any existing and future subrogation claims" (e.g. under the NS Health Services and Insurance Act – see paras 8, 12-14).

The defendants brought a Rule 10.04 motion before the same Judge who had conducted the settlement conference. She found that the settlement "was full and final and included a clear understanding, that all matters were settled as against the defendants including any subrogated claims" (para 21). It was up to the plaintiff and not the defendants to explore the possibility of any subrogated claims, which hadn't been done here (paras 18-20). 


The process of settlement can be messier in reality than in theory. The deal is not necessarily done when one party purports to accept the other side's settlement offer, because there is probably still documentation—like a formal written agreement and mutual releases—that needs to be drawn up. Settlements often stumble on whether this "further documentation is a condition of there being an agreement, or whether it is simply an indication of the manner in which the agreement already made will be implemented" (see Certified Design Consulting at para 30, point 3). 

And, as these two cases show, there may be a fight over the terms of a release.

On Rule 10.04 and similar motions, the court will do its best to determine what the parties objectively intended. And if the court finds they intended to reach a settlement agreement, a release will usually be considered an implied term of that agreement (Certified Design Consulting at para 41, citing the ONCA in Cellular Rental Systems Inc v Bell Mobility Cellular Inc). These cases suggest that dissatisfaction with the specific terms of the release will not usually derail what was meant to be a final settlement.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.