Case Summary: Green v Khattab

PRACTICE ISSUES

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

FACTS AND ISSUES:

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...