IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20100830

Docket: M071919

Registry:
Vancouver

Between:

Hanna-Lee Irene
Louise Bransford

Plaintiff

And

Ahmetturan
Yilmazcan, Black Top Cabs Ltd., Booker Bransford,
Canadian Road Leasing Company and/or
Primus Automotive Financial Services Canada Company

Defendant

Before:
The Honourable Madam Justice S. Griffin

Reasons for Judgment

Introduction

[1]            
The parties have come before me with respect to whether a structured judgment
can be ordered, after the completion of a jury trial, the entering into of a
judgment on the jury verdict, and a subsequent appeal.

[2]            
The defendants say that they are entitled to seek a structured judgment now
on the awards for loss of future earning capacity, future care costs, and lost
future housekeeping capacity, in accordance with s. 99 of the Insurance
(Vehicle) Act, R.S.B.C. 1996, c. 231.  They seek leave for a hearing before
me to call evidence and argue the issue.  In the meantime, they seek a stay of
execution on the judgment pending the hearing of the evidence going to the
issue of whether or not a structured judgment should be ordered.

[3]            
The plaintiff says that the defendants are estopped from seeking a court
order that the damages be paid as a structured judgment.

[4]            
The preliminary application before me is to determine whether or not the
defendants have a right to seek a structured judgment now, or are they, as
argued by the plaintiff, now estopped from so applying.

Facts

[5]            
This is a case involving a young woman who suffered personal injury
damages in a motor vehicle accident.  She brought a claim to recover damages,
which was heard at a jury trial over which I presided as trial judge.  The jury
rendered its verdict on October 28, 2009.

[6]            
The jury awarded the plaintiff the following damages:

[7]            
The award by the jury for non-pecuniary damages was in excess of the
common law upper limit for these damages, and so the parties agreed to reduce
that category of damages to the current maximum of $327,350.  I was asked to
and did grant judgment in relation to the jury verdict, subject to additional
submissions.

[8]            
Counsel had agreed at trial that the jury would be directed not to
consider certain other issues. After the jury verdict, counsel for the parties
conducted negotiations on these and other outstanding matters: the management
fee and any tax gross up; income tax on past loss of income; deductions from
the award to represent insurance benefits; and whether or not a structured
judgment was available.

[9]            
Counsel were able to reach agreement on all of the outstanding issues
except with respect to the appropriateness, or not, of a structured judgment.

[10]        
Counsel thus agreed to a form of order that would properly reflect the
jury verdict, the parties’ agreement and any outstanding disagreement on the
issues.  The final order was presented to me as trial judge in chambers, and I
accepted its form on November 27, 2009.  The form of order indicated it was
made as of October 28, 2009 (the date of the jury verdict).

[11]        
In the meantime, the defendants filed an appeal from the trial
judgment.  Pending appeal, the parties entered into further negotiations with
respect to partial payment of the judgment and a stay of execution on the
balance.

[12]        
Ultimately, on application, the Court of Appeal in chambers made an
order on February 11, 2010.  That order stayed execution on the order of this
court made October 28, 2009 and also ordered that the defendants pay the
plaintiff the sum of $200,000 on account of the judgment.

[13]        
Following the Court of Appeal order in chambers, the plaintiff was paid
$200,000 on account of the trial judgment.  This was not allocated to any specific
item of damages.

[14]        
The appeal then proceeded and was heard on May 25, 2010.  Judgment was
rendered by the Court of Appeal on May 27, 2010, and it is indexed at 2010 BCCA
271.

[15]        
The Court of Appeal judgment notes that there were a number of grounds
for appeal.  This included the argument that plaintiff’s counsel had made
improper submissions to the jury.  This ground of appeal was rejected.

[16]        
Another ground of appeal was that the award for non-pecuniary damages
was so high as to be wholly inappropriate.  The Court of Appeal did accept this
argument and reduced the non-pecuniary damages from $327,350 to $225,000.

[17]        
On appeal, the defendants also took issue with the award made by the
jury for the cost of future care in the amount of $409,600.  The Court of Appeal
rejected these arguments.

[18]        
In conclusion, the Court of Appeal upheld the jury verdict and judgment
of this court, with the exception that the court reduced non-pecuniary damages.

[19]        
The parties have now returned before me.  As mentioned above, the
defendants seek a stay of execution of the unpaid portion of the judgment,
pending a hearing of their application to convert the damages award regarding
future pecuniary losses to a structured judgment pursuant to s. 99 of the Insurance
(Vehicle) Act.

[20]        
The plaintiff says that the defendants no longer have this option and
there should be no stay of execution.

[21]        
Neither party called evidence on the issue of whether or not a
structured judgment would be appropriate in this case.  It was agreed that the
merits of a structured judgment would only arise if the defendants were
successful before me in arguing that they are entitled to a stay of execution
and are not estopped from seeking a structured judgment.

Plaintiff’s Position

[22]        
The plaintiff says that the defendants had to elect between two choices
prior to the November 27, 2009 hearing before me and entry of the final order. 
They could decide not to seek a structured judgment, in which case the jury’s
award of lump sum damages would stand, with such additions or modifications as
were determined with respect to the outstanding issues regarding management
fee, tax gross up, and Part 7 benefits.  Or, as an opposing choice, they could
have decided to seek a structured judgment and brought evidence before the
court to allow the court to determine that issue.

[23]        
The plaintiff says that the defendants clearly made the first choice,
namely they agreed not to seek a structured judgment by agreeing to a final
order that included terms for management fees and a tax gross up.  Furthermore,
the defendants’ actions in proceeding with an appeal from this final order and
in agreeing to a preliminary payout of $200,000 to the plaintiff before the
hearing of the appeal, were unequivocal actions which make it clear that they
had accepted that they could not now apply for a structured judgment.

[24]        
The plaintiff relies on the concept of election as set out in Scarf
v. Jardine, (1992), 7 App. Cas. 345 (H.L.) at pp. 360-361:

The principle, I take it, running through all the cases as to
what is an election is this, that where a party in his own mind has thought
that he would choose one of two remedies, even though he has written it down on
a memorandum or has indicated it in some other way, that alone will not bind
him; but so soon as he has not only determined to follow one of his remedies
but has communicated it to the other side in such a way as to lead the opposite
party to believe that he has made that choice, he has completed his election and
can go no further; and whether he intended it or not, if he has done an
unequivocal act – I mean an act which would be justifiable if he had elected
one way and would not be justifiable if he had elected the other way – the fact
of his having done that unequivocal act to the knowledge of the persons
concerned is an election.

(Plaintiff’s
emphasis)

[25]        
The problem with the plaintiff’s position is that the defendants’
conduct was not unequivocal abandonment of the right to argue that a structured
settlement was appropriate, nor could it have led the opposite party to believe
that the defendants’ had made that choice.  Rather, the defendants specifically
flagged in the form of trial order and in their submissions that they wished to
reserve the right to later argue that a structured judgment was acceptable.

[26]        
The relevant terms of the order were:

THIS COURT FURTHER ORDERS BY CONSENT THAT that [sic]
the plaintiff be awarded the sum of $240,000.00 for management fees and income
tax gross up, subject to a recalculation if a structured judgment is ordered.

THIS COURT FURTHER ORDERS THAT the Plaintiff recover Judgment
against the Defendants for the total sum of $1,404,189.40;

THIS COURT FURTHER ORDERS THAT
the defendants shall be at liberty to apply for a structured judgment pursuant
to section 99 of the Insurance (Vehicle) Act.  In the event that a structured
judgment is ordered, the amount of the management fee and tax gross up awards
shall be recalculated by the court.  The defendant’s liberty to apply for a
structured judgment shall not prejudice the plaintiff’s right to argue that
such relief is not available to the defendants.

[27]        
If anything the form of order was equivocal as to both sides’
positions.  On the one hand, the defendants made it clear that they did not
wish to give up the right to argue later that a structured judgment would be
appropriate.  On the other hand, the plaintiff wished to make clear that she
did not wish to give up the right to argue that a structured judgment was
unavailable to the defendants.

[28]        
A question that is relevant is what was my intention, as trial judge,
when agreeing to the form of order submitted jointly by counsel on November 27,
2009?  Clearly it was my intention to give the parties a further opportunity to
argue whether or not a structured judgment was appropriate in this case.

[29]        
I conclude therefore that the order I made was not a final order on the
issue of the appropriateness of a structured settlement and any related damages
calculations.

[30]        
In my view, this is not a case where this court is functus officio
in relation to the question of whether or not a structured judgment is
appropriate.  As in Brennan v. Singh, 2001 BCSC 1812, I do not consider
the fact that appeals have been taken to aspects of the jury verdict to be
dispositive.  I am advised there was no appeal argument on the question of
whether or not a structured judgment was appropriate in this case.

[31]        
The effect of the form of order I approved was to sever the issue of the
appropriateness of a structured judgment from the rest of the trial judgment.  That
issue remains to be determined.

[32]        
It may be that the form of order entered in this case was imperfectly
drafted.  Nevertheless, this court retains an inherent jurisdiction to correct
orders where an error is made in expressing the court’s manifest intention: Buschau
v. Rogers Communications Inc., 2004 BCCA 142.

[33]        
In this case, no party has taken irrevocable steps in reliance on the
belief that this court had finally determined the question of whether or not a
structured judgment is appropriate.  I conclude that it would therefore be fair
and just for this court to consider that issue.

Conclusion

[34]        
I conclude that the defendants are not estopped from applying for a
structured judgment.

[35]        
I therefore will allow the defendants’ application to stay the execution
on the judgment, except for any portion of the judgment relating to
non-pecuniary damages and relating to past lost income, as well as post-judgment
interest on these amounts.  This stay will be pending a hearing of the
application for a structured judgment.  If the hearing is unduly delayed, the
plaintiff is at liberty to apply to lift the stay in whole or in part.

"S. GRIFFIN, J."