Category: Settlements : Setting Aside

Court Refuses To Set Aside Oral Agreement Between Plaintiff And Defence Counsel

In Robertson v. Resort Municipality of Whistler, the Plaintiff, representing herself, agreed to settle her matter in a conversation with defence counsel on the telephone. She later changed her mind, arguing that there was no settlement until she agreed in writing. The Court rejected this notion.


[32] Settlement agreements need not be in writing to be enforceable. This was recognized in Sekhon v. Khangura, 2009 BCSC 670.


[47] The plaintiff changed her mind and repudiated the settlement as a result of the reaction of her father and the involvement of her aunt, Ms. MacDonald.


[48] I conclude that on December 16, 2010, the plaintiff entered into a binding settlement agreement. This action is dismissed with costs awarded to the defendant upon the basis that the sum of $1,400.00 due to the plaintiff will be set-off against the defendant’s assessed costs.


Court Rules Agreement Stands, Even When Plaintiff Refuses To Sign Release

In Truong v. Marples, the Plaintiff’s lawyer and the ICBC adjuster agreed on a settlement. The Plaintiff, however, would not sign the Release, arguing  that the settlement should not be binding, as it was unclear, and should not have incorporated her “no fault” accident benefits claim as well. The Court ruled that an agreement had indeed been reached, and refused to set aside the settlement.


[20]         In terms of ambiguity, I find that there was no ambiguity in the settlement.  The settlement was agreed to between Mr. Grewal and Mr. Shane and they both state that there was no ambiguity and agree on what the deal was.  Their evidence, which was not shaken at the hearing, was that they reached a settlement of all issues, including those regarding tort and Part 7 benefits.


[21]         Mr. Shane and Mr. Grewal had a history of working on the opposite sides of files.  It is apparent that the two have developed experience with each other.  Mr. Shane’s testimony also indicates that he has a direct working relationship with the Burnaby litigation department of ICBC, and that an “all in” settlement always meant that it included the tort claim and Part 7 benefits.  He displayed a sound understanding of Part 7 benefits and how they interact with a person’s private health insurance.  He stated that if a settlement did not include Part 7 benefits it was his practice to note that.  I accept his evidence on this point. 


[22]         The Release document sent by ICBC to Mr. Shane supports the settlement asserted by Mr. Grewal and Mr. Shane.  The document states that it is a release of all defendants, and ICBC under Part 7 of the Insurance (Vehicle) Regulation.  Mr. Shane reviewed this document, obviously found it satisfactory, and passed it on to Ms. Truong for her execution.


[23]         I also accept Mr. Shane’s evidence that he always makes sure that his clients understand that the figures being proposed to settle include all potential entitlements they have from their claim which include the tort and Part 7 entitlements.  I also accept that he advised Ms. Truong, as per his practice, that prior to confirming any settlement figure with ICBC, that she would need to sign a Release, that this was not optional, or is something that she could refuse to do, and that their claim would be over.


[24]         I am not persuaded that the Sharma case is particularly applicable here, given that both counsel involved in the settlement in the instant case agree as to what was settled   


[25]         Turning then to the question of whether the settlement was unjust and should not be sanctioned.  I have considered the various factors identified in the Pastoor case.  I am not persuaded that the circumstances justify intervention by the court.  Ms. Truong was represented by experienced counsel.  Mr. Shane provided her his opinion based on the information that he had at the time.  He knew that Ms. Truong had private health insurance, he formed a considered opinion that she had little chance of success on liability and the costs of pursuing that aspect, he had a sound understanding of Part 7 benefits, and he discussed that with Ms. Truong.  There was little evidence adduced as to what it would be in the case of Ms. Truong.  Mr. Shane in this hearing stated that it could be thousands of dollars.  Finally, he also received instructions to accept the offer. 


[26]         I am of the view that interfering with this settlement would do greater harm to encouraging settlement.  It would undermine the role of counsel in relation to a client, in relation to opposing counsel, and in the litigation process. 


[27]         The issues raised by Ms. Truong are, in my view, related to her relationship with Mr. Shane and not with the defendant.  Her remedy does not lie in having the settlement overturned.


Plaintiff Who Does Not Sign Release Still Bound By Agreement

In Lacroix v Loewen, the Plaintiff instructed her counsel to settle with ICBC on a specified amount, but then changed her mind before signing the full and final release. ICBC’S lawyer brought an application to dismiss the lawsuit because of the settlement. The Court dismissed ICBC’S application. The lawyer for ICBC appealed, and was successful. The Court of Appeal commented that:


[36]           The correct interpretation in such a case is to analyze the evidence to determine whether it is clear to the objective reasonable bystander, in light of all the material facts, that the parties intended to contract and whether the essential terms of that contract can be determined with a reasonable degree of certainty. Not only must there be an offer and acceptance, but the evidence must be capable of demonstrating that there is an agreement on all essential terms. In this case, a correct analysis would have led the judge to consider the evidence and determine whether it showed, objectively, that the parties intended a tort settlement, or a tort and Part 7 settlement, or whether the evidence was incapable of supporting either conclusion. To answer the first Fieguth question, the trial judge had to be able to determine the entire scope of the settlement.


[37]           Instead of determining the entire scope of the settlement based on the evidence, the judge instead appears to have acknowledged that there was an offer and acceptance, and then implicitly concluded that there was a settlement of the tort claim. He then proceeded to examine whether the evidence also supported settlement of the Part 7 claim. In doing so, he incorrectly applied the principles of contractual interpretation. In interpreting a contract, what is relevant is the parties’ outward manifestations as to the scope of the whole settlement. That scope is to be assessed as a whole, on all of the material evidence, and not in individual pieces. 


[38]         Applying the principles of contractual interpretation, the communications between Mr. Mickelson and the adjuster, Mr. Per, objectively indicate that there was an enforceable settlement including both tort and Part 7 claims. Looking at all the material facts, the reasonable objective bystander would conclude that the parties intended to make a final settlement of both tort and Part 7 claims.  


[39]         At the time of the discussions between Mr. Mickelson and Mr. Per, there was no outstanding action for either tort damages or Part 7 benefits. There was simply a “file” which included both tort and Part 7 claims. When Mr. Mickelson and Mr. Per spoke, the evidence indicates that their discussions concerned the “file” as a whole, and the “merits” of her claims. No differentiation was made between tort and Part 7. Their discussions about “settlement” were directed to settling the “file”/“matter”. This is clear from Mr. Per’s affidavit, which states:


3.   On March 11, 2004, I received a telephone call from John Mickelson with respect to special expenses which he wanted covered. After a discussion of the merits of the file I offered to settle the matter for $5,500.00. John Mickelson stated that he would speak to his client and get back to me.

9.   On March 16, 2004, I spoke to John Mickelson by telephone with respect to the returned cheque and release. I specifically asked Mr. Mickelson if he had instructions from Ms. Lacroix to settle the matter at the time that the counter offer was made and accepted by myself. He told me that he did have such instructions.


[Emphasis added.]


[40]         The judge correctly noted at para. 30 of his reasons that, “There was no mention of the fate of any subsequent Part 7 claims until the release was forwarded to counsel for the plaintiff”. However, the trial judge failed to acknowledge that there was little or no specific mention of individual aspects of any claims, tort or Part 7. The objective observer would conclude that was so because Mr. Mickelson and Mr. Per’s discussions were directed to a settlement of the “file” or “matter” as a whole. Both sides understood the benefits and advantages of settling early, and concluding the matter in its entirety. To an objective observer, they did so.


[41]         While the above conclusion makes it unnecessary to consider the repudiation issue, a word or two is warranted. While the chambers judge cited proper authority in Fieguth in relation to repudiation, he incorrectly applied that authority. The judge concluded that the mere tendering of documents with terms that have not been agreed upon can constitute repudiation. That is an error. As set out above, in Fieguth Chief Justice McEachern said at p. 70:


…One can tender whatever documents he thinks appropriate without rescinding the settlement agreement. If such documents are accepted and executed and returned then the contract, which has been executory, becomes executed. If the documents are not accepted then there must be further discussion but neither party is released or discharged unless the other party has demonstrated an unwillingness to be bound by the agreement by insisting upon terms or conditions which have not been agreed upon or are not reasonably implied in the circumstances.


[42]          This passage continues to be a correct statement of the law and to accord with sound practice.

Court Refuses To Set Aside Settlement Previously Reached Between Parties

The vast majority of the time, when a settlement is reached between the Plaintiff and ICBC, a Release is signed, and the matter officially comes to an end.


There do exist certain circumstances, however, where the validity of the settlement is brought into question.


In McIsaac v McIsaac, the Plaintiff was unrepresented, and entered into a settlement with an adjuster from ICBC. After signing the Release, the Plaintiff felt the amount was too low, and retained counsel to bring an application against ICBC to have the settlement set aside. The ICBC lawyer argued that it was a binding settlement, and the Court agreed.


[12]    There is no evidence that the plaintiff was under any sort of legal or medical incapacity with respect to her ability to manage her affairs.  The plaintiff has two years of post-secondary education, has no difficulty with the English language, and reads as a hobby.  The plaintiff’s evidence is that it is her general practice to read documents before signing them.




[13]   The plaintiff was aware that Mr. Reimer was monitoring her medical progress, and that her medical caregivers were providing information about her condition to Mr. Reimer.  The plaintiff had been involved in previous personal injury litigation, which resulted in her receiving financial compensation for her injury.  The plaintiff knew when she attended Mr. Reimer’s office that the purpose of her meeting was to discuss the settlement of her claim arising out of the accident. 


[14]   The plaintiff attended the meeting with Mr. Reimer, accompanied by her brother-in-law, who was permitted to participate in the meeting, and with whom the plaintiff consulted regarding the appropriateness of the settlement.


[17]         I agree with defendant’s counsel’s submission that there are two alternative tests to assess the validity of the settlement.  Also, to have a settlement set aside or voided, the insured must have been unfairly induced to accept the settlement or release, and that the settlement or release must also be grossly unfair or grossly inadequate.  Settlement and release of a claim may not be set aside where the parties are not on equal footing if the insurer can demonstrate that the settlement is fair and reasonable.


[18]         There are two alternative tests to determine the validity of a settlement.  Whether, when the settlement is looked at in the light of the knowledge of the adjuster at the time the settlement was entered into, the bargain was fair, just and reasonable, and whether the transaction seen as a whole is not sufficiently divergent from community standards of commercial morality that it should be rescinded.  See McCullogh v. Hilton (1998) 63 B.C.L.R. (3d) 272 (b.c.c.a.) and see also Gindis v. Brisbourne (2000) 72 B.C.L.R. (3d) 19 (B.C.C.A.), particularly at paragraphs 42 to 44.


[19]         A settlement with an unrepresented claimant will not necessarily be invalid simply because all of the symptoms stemming from any injuries have not been fully resolved.  Again, see McCullogh.


[20]         There is no evidence that the injuries sustained by the plaintiff were, at the time of settlement, any worse than what was understood by the plaintiff and the adjuster, nor is there any evidence that the plaintiff’s injuries have become any worse since the settlement was entered into.


[21]         Quite apart from any alleged inequality of bargaining power, the plaintiff and the adjuster had a complete picture of the plaintiff’s medical condition at the time of the settlement directly from the plaintiff’s medical caregivers.


[22]         Clearly on the evidence, the plaintiff relied on and trusted the ICBC adjuster and their bargaining power were unequal, but the ultimate question is whether viewed objectively, the agreement was unconscionable and offended applicable standards of commercial morality.


[23]         I am satisfied on the evidence that it cannot be said that the plaintiff was taken advantage of by ICBC.  The plaintiff, upon receiving the offer to settle at $22,000, could have consulted with a lawyer before accepting the offer, but for reasons of her own chose not to.


[24]         Counsel for the plaintiff now submits the adjuster relied on outdated 12 to 18 year case law authorities as guidance on damage quantum range, and did not make any adjustment for interim inflation.  Be that as it may, the amount offered likely also factored in some discount for contributory negligence by the plaintiff in not being seat belted at the time of the accident.


[25]         I might consider the amount settled by the parties in this case to be somewhat low, but taking into account all of the outlined factors related earlier, I cannot say the bargain struck was grossly unfair and unconscionable.  In order to maintain consistency and predictability in commercial transactions, public policy requires court enforcement of contracts not found to be unconscionable.

Court Refuses To Set Binding Settlement Aside

In Fountain v. Katona, the Plaintiff was injured in a rear end motor vehicle collision, and subsequently brought an ICBC claim for non-pecuniary damages, as well as other forms of damages. The Plaintiff was unrepresented at all material times when dealing with an ICBC adjuster. Settlement was eventually reached, and the Full and Final Release was signed by the Plaintiff, meaning that he could bring any future claims for compensation relating to the accident in question. A day after signing the Release, the Plaintiff changed his mind, stating that the amount received was insufficient. The adjuster informed him that it was too late to change his mind. The Plaintiff hired counsel, who sued the Defendant for damages for pain and suffering, and other types of damages as well. One of the issues for the Court to consider was whether or not the original settlement reached between the Plaintiff, when he was unrepresented, and the adjuster, was enforceable. The Court ruled that the settlement was binding, and could not be set aside.


Unconscionable Bargain

[9]               An unconscionable bargain is one where the stronger party takes unfair advantage of the weaker party to strike a substantially unfair agreement. The result is an unconscionable use of power by the stronger over the weaker: Morrison v. Coast Finance Ltd. reflex, (1965), 54 W.W.R. 257, 55 D.L.R. (2d) 710 (B.C.C.A.).

[10]           There are two main elements in such a claim. First, proof of inequality in the position of the parties arising out of the ignorance, need or distress of the weaker, which leaves the weaker party in the power of the stronger. Second, proof of substantial unfairness in the bargain obtained by the stronger party based upon the information known or ought to have been known at the time of the settlement. Proof of these circumstances creates a presumption of fraud, which may be rebutted by proof that the bargain was fair, just and reasonable: Morrison, per Davey J.A. at 259.

A. Inequality of Bargaining Positions

[11]           Mr. Katona argues there was no inequality of bargaining positions as between Ms. Dyke and Mr. Fountain. While Ms. Dyke had been an adjuster since 1988, Mr. Fountain was an intelligent, well educated person who knew the nature of the bargain he was making with ICBC. Mr. Fountain was apparently short of money, but he was not destitute; he travelled to New Zealand shortly after the accident and subsequently to California and back to Vancouver and Banff. Mr. Fountain’s mother had provided him with financial assistance and Ms. Dyke advised him that the cost of physiotherapy, chiropractic treatments and massage therapy could be billed directly to ICBC. Indeed, ICBC had reimbursed Mr. Fountain for a medical consult with Dr. Adilman immediately after the accident. Finally, Mr. Katona argues Ms. Dyke did not dominate Mr. Fountain, particularly because they only talked over the telephone. Mr. Fountain never met with Ms. Dyke in person


B. Fairness of the Settlement

[15]           Mr. Fountain argues the bargain struck with ICBC was grossly unfair based upon what Ms. Dyke knew or ought to have known at the time. Ms. Dyke knew that Mr. Fountain continued to experience symptoms such as neck pain and headaches. Although she had Mr. Fountain sign a release for medical records, Ms. Dyke failed to order a copy of the notes taken by Dr. Adilman, who examined Mr. Fountain immediately after the accident and diagnosed him with cervical strain and concussion. Ms. Dyke also failed to question Mr. Fountain about his recovery over the previous months since the accident, which consisted of continuous and ongoing symptoms of whiplash, headaches, lack of sleep, inability to concentrate, and pain after sitting or driving for long periods. Instead, Ms. Dyke minimized his complaints, suggesting they might be due to the weather.

Undue Influence

[35]           Mr. Fountain argues that he was induced into signing the release by an adjuster who took advantage and assumed dominion over him through his vulnerability and diminished capacity with respect to his financial and residential insecurity, his ignorance as to his rights, his ignorance of his medical condition, his groggy and unclear mental state, and his desperation for therapy to assist with his recovery.

[41]          … I grant the defendant’s application and dismiss Mr. Fountain’s claim against ICBC and Mr. Katona.