Executive Summary: Key Legal and Evidentiary Issues

• Dispute over whether a binding settlement agreement existed regarding the transfer of fractional ownership interests in family real property.
• Ambiguity in the phrase “5% of your ownership interest” led each side to a different interpretation of how much of the defendants’ interests would be conveyed.
• Question of whether there was consensus ad idem (meeting of the minds) on an essential term, such that a settlement could be enforced under Rule 10.04 of the Nova Scotia Civil Procedure Rules.
• Competing understandings of the intended ultimate ownership structure of the properties (plaintiff as 20% owner versus only a 5% owner in total).
• Application of contract principles on ambiguity and misunderstanding of terms, including when a lack of objective consensus means no enforceable agreement is formed.
• Consequences of ambiguous drafting in a formal offer to settle, culminating in dismissal of the plaintiff’s motion and an order for costs in favour of the defendants.

Background and family property dispute
The litigation arises from a family dispute over beneficial ownership of two pieces of real property located at 57 and 59 Pinecrest Drive in Dartmouth, Nova Scotia. The properties were owned by four siblings, Lynn Marie Day, Toni Kathleen Day, Clark Peter Day, and Shirley Doreen Day Jr., as tenants in common, each holding a 25% interest as beneficiaries of their parents’ estates. The plaintiff, Ramona Day, claimed she was an equal heir and sought to have her beneficial one-fifth share formally reflected on title. She alleged that the defendants’ legal ownership should each be reduced from 25% to 20% so that all five heirs, including herself, would hold equal 20% interests in the properties. She also sought punitive and aggravated damages against Lynn Marie Day for alleged high-handed and oppressive conduct. To protect her claimed interest, the plaintiff recorded a Certificate of Lis Pendens against the properties in December 2023.

Commencement of the action and defences
On December 19, 2024, the plaintiff commenced the action by filing a notice of action and statement of claim seeking a declaration of her equal ownership and related relief. Lynn Marie Day responded by filing a notice of defence and statement of defence in January 2025, while the other three defendants initially remained unrepresented and had not yet filed defences. The dispute, however, quickly turned to whether the parties had struck a settlement that would resolve the claim.

The plaintiff’s offer to settle
On February 6, 2025, the plaintiff’s counsel, Joseph Tracey, sent identical formal offers to settle (the “Offer”) to the three unrepresented defendants: Toni Kathleen Day, Clark Peter Day, and Shirley Doreen Day Jr. The Offer proposed to “settle all claims” against each defendant upon receipt of an executed deed transferring “5% of your ownership interest” in the properties to the plaintiff. The deeds would be prepared and recorded at the plaintiff’s expense, with each party bearing their own legal costs. Importantly, no formal offer was sent to defendant Lynn Marie Day. Nonetheless, the Offer used terminology that, in the plaintiff’s mind, aligned with her broader position: that each defendant would reduce their 25% interest to 20%, so that all five heirs would ultimately own equal shares.

Defence counsel’s acceptance and the deed dispute
On February 12, 2025, lawyer Jonathan Hooper, now acting for all four defendants, advised Mr. Tracey by email that his clients accepted the Offer. His email confirmed that all four defendants, including Lynn Marie Day, agreed to “convey 5% of their respective ownership interest” in the properties to the plaintiff “as full and final settlement” of the claim, and he invited Mr. Tracey to prepare the deeds for execution. Although Lynn Marie Day had never been sent the formal Offer, the plaintiff did not object to her inclusion in the acceptance communicated by defence counsel. On February 21, 2025, Mr. Tracey forwarded a deed and deed transfer affidavit. The deed, however, stated that the defendants would convey 20% of each of their respective interests, not merely a small fraction of those interests. Mr. Hooper immediately objected, asking that the deed be revised to reflect what he said were the agreed terms—only “5% of their ownership interest” for each defendant. Mr. Tracey refused to amend the deed, asserting that his client had settled for a much larger share of the properties.

Competing interpretations of “5% of your ownership interest”
The motion turned on the meaning of the critical phrase “5% of your ownership interest” in the Offer. The plaintiff argued that, in the context of the parties’ ongoing dispute and prior language about equalizing the heirs’ interests, the Offer sought a reduction of each defendant’s share in the aggregate ownership of the properties from 25% to 20%. In other words, she maintained that each defendant was to transfer a full 5 percentage points of their total interest so that she would acquire a 20% interest overall and become an equal co-owner with the four defendants. The defendants, by contrast, interpreted the wording literally as a fraction of each person’s existing 25% share. On their reading, each defendant was to transfer 5% of their 25% interest—mathematically about 1.25%—such that the plaintiff would acquire only about a 5% total interest across all four defendants combined. Both sides insisted that a binding settlement was formed on their preferred interpretation and each moved to enforce what they said was the common understanding.

Application of contract principles and Rule 10.04
The plaintiff brought a motion under Rule 10.04 of the Nova Scotia Civil Procedure Rules, which allows a party to seek an order giving effect to a settlement agreement alleged to have been made after a proceeding is started. The key legal question was whether the parties had reached a binding and enforceable settlement agreement and, if so, on what terms. Justice Bodurtha applied established contract law principles, particularly on consensus ad idem and ambiguity. Drawing on appellate authority, he noted that while a party’s subjective misunderstanding does not automatically invalidate a contract if there is an objective meeting of the minds, no contract arises where each party holds a different and reasonable understanding of an essential term that is ambiguous or imprecise, such that neither side can insist on its own meaning as the true one. Where the parties are not truly ad idem on an essential term, there is no enforceable agreement to be declared or enforced. In this case, both parties claimed the phrase “5% of your ownership interest” supported their respective interpretation. The plaintiff said it meant a transfer of 20% of each defendant’s total share, while the defendants insisted it meant 5% of their 25% interests (approximately 1.25% each). The court found that this was not a minor miscommunication but a fundamental misunderstanding as to the quantum of the interests to be conveyed—an essential term of the purported settlement.

Finding of no enforceable settlement and outcome
Justice Bodurtha concluded that there was no meeting of the minds on the essential term describing how much of the defendants’ interests would be transferred to the plaintiff. The phrase “5% of your ownership interest” was held to be ambiguous, and the parties attached materially different meanings to it. Because neither side could insist, as a matter of objective contractual interpretation, that its interpretation must prevail, the court found that no binding and enforceable settlement agreement had been formed. The plaintiff, who bore the burden of proving that a settlement existed that could be enforced under Rule 10.04, failed to meet that burden. The motion to enforce the alleged settlement agreement was therefore dismissed. The successful parties on the motion were the defendants, who obtained an order dismissing the plaintiff’s motion with costs payable to them. The decision does not specify the amount of costs or any other monetary award, leaving the figures either to agreement between the parties or to later written submissions; accordingly, the total amount ordered in favour of the defendants cannot be determined from this judgment.