Canada: Case Summary: Green v Khattab

Last Updated: November 9 2018
Article by Field LLP


Summary judgment ordering specific performance of a settlement reached during a binding Judicial Dispute Resolution was upheld, notwithstanding that a consent order or consent judgment had not been signed between the parties. Green v Khattab, 2018 ABQB 523


Ms. Khattab and Douglas Green had been involved in a domestic relationship. Mr. Khattab commenced a family law action against Douglas Green seeking relief in the form of support and payment of debts (the Family Action). Janet Green commenced an action against Ms. Khattab seeking to recover principal and interest on a loan she had allegedly made to Ms. Khattab (the Civil Action). Ms. Khattab subsequently issued third party proceedings against Douglas Green in the Civil Action.

The parties agreed to participate in a binding Judicial Dispute Resolution to resolve both the Family and the Civil Actions. The parties entered into an "Agreement for Binding Judicial Dispute Resolution" (the Agreement) which provided that the decision would be binding upon the parties and enforceable in the Court of Queen's Bench of Alberta, that the binding JDR had been chosen by the parties instead of a trial, that there was no appeal, and that any Agreement between the parties would have been executed after having retained independent legal advice.

Each party retained counsel prior to the JDR process. Counsel for each of the parties then executed a Certificate of Independent Advice. Ms. Khattab's counsel confirmed that Ms. Khattab executed the Agreement "of her own volition and without any fear, threats, compulsion or influence from the other parties, or any other person." A settlement agreement was agreed upon between the three parties and the terms of the settlement agreement were read into the Court record before the JDR Justice. No consent order or consent judgment was ever signed.

Almost one month after the draft judgment was forwarded to Ms. Khattab's counsel, Ms. Khattab retained new counsel. Ms. Khattab's new counsel advised Mr. and Ms. Green that Ms. Khattab would not consent to any order or judgment arising out of the JDR proceedings. Counsel for all three parties appeared before the JDR Justice who confirmed that an agreement had been reached but declined to issue a judgment based on its terms because there was no written agreement permitting him to hear or decide such an application. The JDR Justice concluded that he no longer had jurisdiction to do anything further.

The Greens filed an action for specific performance of the Agreement and subsequently brought a successful application for summary judgment against Ms. Khattab. Ms. Khattab claimed that the agreement was granted under duress, that she was denied her right to participate meaningfully in the JDR process, and that she felt bullied and threatened to accept an unjust resolution of the Family and Civil Actions. Master Smart held that "the parties obviously consciously made a decision based on legal advice to enter into a JDR agreement and signed an agreement which acknowledged that it would be a binding process." The Master also noted that Ms. Khattab had legal representation throughout the entire JDR process. Lastly, Ms. Khattab's decision to purport to avoid the settlement agreement was not communicated to the Greens for approximately one month, which was too long in the circumstances. The Master granted summary judgment for specific performance of the Settlement.

Ms. Khattab appealed.

HELD: For the Plaintiffs Mr. and Ms. Green; appeal dismissed. The Court found it unnecessary to choose which of the two tests suggested by the Alberta Court of Appeal is the correct test for summary judgment. Justice Macklin found that either one of the tests for summary judgment would have been satisfied.

a. Stefanyk v Sobeys Capital Incorporated, 2018 ABCA 125 stated that the test for summary judgment is as follows:

. . . There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (a) allows the judge to make the necessary findings of fact, (b) allows the judge to apply the law to the facts, and (c) is a proportionate, more expeditious and less expensive means to achieve a just result . . . Parties to a summary disposition application are expected to put their "best foot forward", meaning that gaps in the record do not necessarily prevent summary disposition . . .

b. Whissell Contracting Ltd v Calgary (City), 2018 ABCA 204 held that "[s]ummary judgment may be appropriate 'if the moving party's position is unassailable or so compelling that its likelihood of success is very high and the nonmoving party's likelihood of success is very low'" which "is an onerous standard and rightly so" because "a grant of summary judgment ends a dispute without affording the litigants full access to the civil procedure spectrum".

Justice Macklin ultimately found that no triable issues continued to exist and, accordingly, summary judgment was in appropriate in this case.

a. The Court found that granting summary judgment would not contrary to Rule 4.19(b):

[22] Rule 4.19 provides that:

The only documents, if any, that may result from a judicial dispute resolution process are

(a) an agreement prepared by the parties, and any other document necessary to implement the agreement,

(b) a consent order or consent judgment resulting from the process, and

(c) a transcript of proceedings made in open court at the time of the judicial dispute resolution process which records the outcome of the judicial dispute resolution process.

[23] The rule provides an exhaustive list of the documents that may result from the JDR process. In this case, there is an Agreement prepared by the parties which is the Agreement for Binding Judicial Dispute Resolution which was prepared by counsel for Lillian Khattab and executed by all parties on November 3, 2016. There is also a Transcript of the proceedings done in open Court at the conclusion of the settlement discussions which confirmed and recorded the settlement reached.

[24] Rule 4.19 contemplates that the JDR process itself would conclude in an agreement. The process followed in this case was that of a Binding JDR. No decision from the JDR Justice was needed as the parties reached an agreement. That agreement must still be considered as one resulting from the JDR process.

[25]While there is no consent order or consent judgment resulting from the process, this was a result of the refusal by the Appellant to authorize her counsel to execute the Consent Judgment. In my view, this does not make the agreement any less enforceable. Indeed, if such were the case, then any party to an otherwise valid settlement agreement could simply refuse to sign the confirming order or judgment so as to renege on the agreement. Allowing a party to do so would be contrary to public policy, an affront to the JDR process and constitute a waste of time and resources. Further, and in any event, the transcript of the proceedings which recorded the outcome has been produced. The evidence as to the terms of the settlement is clear.

b. The binding Agreement was held to be in compliance with the rules of natural justice.

i. Justice Macklin did not accept Ms. Khattab's evidence that "she was essentially threatened with 'punitive financial repercussions' if she were to discuss or argue her case" or that "she felt intimidated when told by the Court that her 'portion of the settlement would fall' and that Janette Green's 'portion of the settlement would rise' if she spoke further."

ii. Ms. Khattab was represented by counsel at all material times and there was no contrary evidence available. The Settlement Agreement was reached among the parties in the context of settlement discussions. The JDR Justice was never called upon to make a decision but simply asked that counsel read into the Record the terms of the Settlement reached between the parties.

There was no indication on the Record of an attempt for Ms. Khattab to be heard at any time during the open Court proceedings.

c. This action was held not to be the appropriate forum to consider allegations that Ms. Khattab's counsel failed to protect her interests.

[36] Once again, it bears noting that the Transcript of the Court proceedings confirming the Settlement Agreement contains no decision or direction by the presiding justice in any way. The Agreement is set out by counsel for Mr. Green and counsel for Ms. Khattab confirms the agreement. In other words, the presiding justice did not outline any settlement agreement, let alone force one upon Ms. Khattab.

[37] Regarding the Appellant's complaints of her counsel's representation of her interests, this is not the appropriate forum to consider those allegations.

d. The Court found that there was no evidence of injustice caused by haste.

[38] The Appellant says that the whole process, from signing the Agreement for Judicial Dispute Resolution through to the purported resolution of the issues, was done in such haste as to constitute an injustice. She points out that the whole settlement negotiations took about one half hour for a matter that might have taken up to 12 days of trial.

[39] This allegation fails to consider the amount of time each party and their counsel would have spent preparing for the JDR, considering each of the other parties' positions as outlined in their briefs, considering all of the evidence that had been adduced earlier and throughout the litigation and the recognition that a desire to reach any settlement must necessarily involve some compromise by each party. In many cases there is a seemingly small gap between respective parties' positions at the commencement of negotiations and yet no settlement is reached. In others, there is a wide gap in positions at the commencement of negotiations and an agreement is reach fairly quickly. Sometimes there is no rhyme or reason to the length of time necessary to achieve a settlement upon which all parties can agree.

[40] Even if the negotiations took but a half hour or one hour, each party participating in the negotiation process would have had ample time to consider the pros and cons of their own position as well as those of the other two parties. Perhaps the parties were not far apart to begin their negotiations or perhaps they recognized common ground at an early stage and were able to achieve an overall settlement in short order. It is not for this Court to consider how short or long negotiations may have been leading up to a finalized settlement agreement as an indication of any injustice.

e. The Court found that there was no evidence of vulnerability on the part of Ms. Khattab to justify judicial intervention.

[41] The Supreme Court of Canada has stated that judicial intervention would be justified where agreements were found to be procedurally and substantively flawed: Miglin v Miglin, 2003 SCC 24 (CanLII) and Rick v Brandsema, 2009 SCC 10 (CanLII). The Court held that "there must be persuasive evidence brought before the Court that one party took advantage of the vulnerability of the other party . . ." (Miglin at para. 82). An agreement need not be enforced if one party's exploitation of the vulnerabilities of the other during the negotiation process resulted in an agreement that deviated substantially from what may be reasonable. However, the Court also stressed that "parties should generally be free to decide for themselves what bargain they are prepared to make."(Brandsema at para.45). In this case, the parties to the within action chose to negotiate a settlement based on information available to them at the time of the negotiation. There is no evidence to support a finding that the negotiated settlement was unfair or unreasonable.

[42] The Appellant argues that the duress she experienced or her vulnerability resulted from the comments or attitude of the JDR Justice, not those of any of the other parties. Once again, I do not accept her argument in this respect for both the reasons expressed earlier plus, again, the fact that she was represented by counsel throughout.

f. There had already been partial performance of the Settlement Agreement to the benefit of the Ms. Khattab, to the prejudice of the Greens.

[44] ... First, upon reaching the Settlement Agreement, there was no call on the JDR Justice to provide a decision binding upon the parties. Accordingly, he did not do so and the Respondents lost their right to have a binding decision as contemplated by the Agreement for Binding Dispute Resolution.

[47] ... the Respondents abandoned an appeal from a summary judgment decision of the Master in relation to the Civil Action...


This is the latest case that considered the enforceability of a settlement agreement reached during a binding JDR process. Despite not having a signed consent order or consent judgment, an agreement reached during a binding JDR may be enforceable where parties have voluntarily entered into the binding JDR process and have received independent legal representation throughout the JDR process. It remains uncertain which test for summary judgment will be used by Alberta courts. It is also unclear whether summary judgment will be granted in a case where only one of the tests for summary judgment is satisfied.

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.

Events from this Firm
22 Jan 2019, Webinar, Calgary, Canada

Learn about the most important professional regulatory Court cases of the past year. What are the key legal trends?

23 Jan 2019, Seminar, Calgary, Canada

Field Law and IISA are excited to present an in-depth workshop on how the legalization of recreational cannabis is impacting and will impact the insurance industry.

6 Feb 2019, Other, Calgary, Canada

Join Field Law for a review of the most important legal cases from 2018.

In association with
Related Topics
Related Articles
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
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

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 or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq 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 of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions