IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20101123

Docket: M114940

Registry:
New Westminster

Between:

Shannon Johnson
(nee White)

Plaintiff

And

Tanya Marie Wells
and
U-Haul Co. (Canada Ltd.), U-Haul Co. (Canada) Ltee. and
Horizon RV Ltd.

Defendants

Before:
The Honourable Mr. Justice Truscott

Reasons for Judgment

[1]            
The defendant Wells applies for the following orders which the plaintiff
opposes:

1.         The within action be declared or ordered to be
stayed as against the Defendant Tanya Marie Wells;

2.         The within action be declared or order to be
settled as against the Defendant Tanya Marie Wells on the following terms:

a)         Payment of $7,500.00;

b)         Signing of a B.C.
Ferries Release; and

c)         Filing of a Consent
Dismissal Order.

3.         The Plaintiff’s claims in relation to the motor
vehicle accident which occurred on December 29, 2008 be declared or ordered to
be settled as against Andrew Johnson, Natasha Bouchot, Jay Chalkman, and Hilary
Chalkman.

4.         The Plaintiff shall sign a B.C. Ferries Release as
against the Defendant Tanya Marie Wells;

5.         The Plaintiff shall sign a Consent Dismissal Order
as against the Defendant Tanya Marie Wells;

6.         The Notice of Discontinuance filed by the
Plaintiff as against the Defendant Tanya Marie Wells be declared valid;

7.         Such further and other
relief as to this Honourable Court may seem just.

[2]            
The plaintiff applies for the following orders which the defendant Wells
opposes:

1.         An Order that the defendant Tanya Marie Wells
shall provide an Amended List of Documents or an affidavit of documents within
seven days of the order, such amended list to include documents in said
defendant’s possession, control or power that relate to any or all matters in
question in the action and without limiting the generality of the foregoing,

a)         transcripts of any
examinations for discovery she has undergone in relation to the MVA which
occurred September 7, 2006 which is the subject of this action

b)         adjusters’ notes and
other documents showing whether she and/or her agents (ICBC representatives and
lawyers) knew or ought to have known that the plaintiff’s former solicitor
Randy Albertson had no authority to settle the plaintiff’s claims arising out
of motor vehicle collisions which occurred on or about September 7, 2006 and
December 29, 2008, or alternatively, documents showing that Randy Albertson did
have such authority

c)         documents such as
extracts from ICBC procedures manuals indicating whether or not, as agent for
the defendant Tanya Marie Wells, ICBC would normally require a claimant’s
written authorization for a solicitor to act and negotiate settlement on behalf
of such a claimant.

d)         any documents showing
how a purported settlement was allocated between the MVA of September 7, 2006
and an MVA on or about December 29, 2008

2.         An order that the plaintiff may cross examine
Patricia Johnston on her affidavit at a time and place appointed by the
plaintiff

3.         an order granting leave to the plaintiff to
withdraw admissions, deemed pursuant to the defendant Tanya Wells’ notices to
admit dated January 19 and 20, 2010.

4.         An order granting leave to the plaintiff to amend
the Notice of Civil Claim in the form annexed hereto as APPENDIX "A".

5.         An order for costs in
favour of the applicant

[3]            
Counsel for the co-defendants U-Haul Co. (Canada Ltd.), U-Haul Co.
(Canada) Ltee. and Horizon RV Ltd. takes no position on the applications.

Background Circumstances

[4]            
The plaintiff Johnson was involved in two motor vehicle accidents; the
first one was on September 7, 2006 involving the defendants in this action and
the second one was on December 29, 2008 involving other persons by the name of
Johnson, Bouchot and Chalkman.

[5]            
It is only the 2006 accident which is the subject of this lawsuit. For
this claim the plaintiff had retained Mr. Albertson as her litigation
counsel.

[6]            
I have no information on whether the 2008 accident has become the
subject of a lawsuit as yet.

[7]            
Ms. Patricia Johnston, an adjuster for ICBC acting for the
defendant Wells, and apparently also acting as well for Johnson, Bouchot and
Chalkman with respect to the 2008 accident, (“Adjuster Johnston)”), deposes in
her affidavit of May 20, 2010 that on February 2, 2010 she spoke to Mr. Albertson
who agreed to settle this 2006 action against the defendant Wells and as well
any 2008 claim of the plaintiff against Johnson, Bouchot and Chalkman.

[8]            
Adjuster Johnston says in her affidavit that Mr. Albertson agreed
to a settlement of both files for $7,500 with a B.C. Ferries release to be
signed.

[9]            
In support of this evidence she produces a note of hers from her files
dated February 2, 2010 which says in part “Randy Albertson agrees to accept
$7,500 for both claims with BC Ferries release …”.

[10]        
Following this, on the same day, she emailed her defence counsel in this
action, Mr. Parkinson, informing him of the settlement of $7,500 for both
claims, asking him to do the B.C. Ferries release to include the 2008 claim,
and giving him the names of the insureds on that second accident.

[11]        
On February 3, 2010, Mr. Albertson’s litigation paralegal assistant
wrote to Mr. Parkinson for the defendant Wells, as well as to counsel for
the co-defendants in this action, enclosing a filed notice of discontinuance as
against the defendant Wells and advising that the plaintiff had settled that
portion of her claim.

[12]        
On February 4, 2010, Mr. Parkinson wrote Mr. Albertson
confirming settlement of this action against Wells and as well confirming
settlement of the 2008 accident, on terms that included payment of $7,500, the signing
of a B.C. Ferries release, and the filing of a consent dismissal order in this
action.

[13]        
He also included a draft release for Mr. Albertson’s review and suggested
that his office would prepare the consent dismissal order if Mr. Albertson
should require that.

[14]        
The caption on Mr. Parkinson’s letter only referenced the 2006
accident.

[15]        
The enclosed draft release obliged the plaintiff not to sue ICBC or the
settling parties, being Wells, Johnson, Bouchot and Chalkman, by reason of or
arising out of the two motor vehicle accidents, to include any Part 7 claim.

[16]        
The plaintiff was required by the release not to seek in this action or
any other proceeding any amounts arising or connected with the two accidents
which a court might attribute to the fault of ICBC and/or the settling parties.

[17]        
In particular for this action there was an obligation imposed on the
plaintiff not to claim against the remaining defendants in this action for any
fault or negligence attributed to ICBC and/or Wells and to advise the Court of
this obligation.

[18]        
The essence of a B.C. Ferries release is that in return for a payment by
the settling defendant (in this case Wells) to a plaintiff of a sum of money,
the plaintiff agrees to assume any liability imposed upon the settling
defendant by any judgment in the action and any damages associated with that
liability, even if the amount of damages attributed to that defendant’s liability
exceeds the amount that the settling defendant paid to the plaintiff in
settlement.

[19]        
That same day, February 4, 2010, Mr. Albertson’s litigation
paralegal assistant replied to Mr. Parkinson by letter acknowledging
receipt of the release and asking Mr. Parkinson to draw up a consent
dismissal order. In that letter the litigation paralegal assistant said that “once
funds have been received we will have our client execute the release and return
that to your offices”.

[20]        
The caption on that letter under Mr. Albertson’s letterhead
referenced only the 2006 accident. There is no evidence before me indicating
whether or not Mr. Albertson ever looked at the release before this letter
was sent.

[21]        
On February 5, 2010, Mr. Parkinson sent Mr. Albertson a draft
consent dismissal order in this action.

[22]        
Adjuster Johnston says that on February 9, 2010 she forwarded two
cheques to Mr. Albertson, payable in trust, one for $5,000 for the first
accident and the other for $2,500 for the second accident.

[23]        
Adjuster Johnston says that on February 11, 2010 she had a subsequent
telephone conversation with Mr. Albertson who said he had examined an
employee of the defendant Horizon RV Ltd. and now felt that there was a liability
issue and that he felt amiss in settling the actions. He said he would not ask
the plaintiff to sign the release.

[24]        
Adjuster Johnston says the two cheques she sent to Mr. Albertson in
trust have never been cashed nor returned to her.

[25]        
Mr. Albertson says in his affidavit of November 15, 2010 that he
has no specific recollection of being retained by the plaintiff for the 2008
accident, nor has he any records indicating such a retainer, and no
recollection of ever seeking instructions from the plaintiff on the 2008 accident.

[26]        
He also says he never gave ICBC any written authorization from the
plaintiff saying that he represented her for the 2008 accident and all his
correspondence to ICBC and defence counsel only ever referenced the 2006
accident.

[27]        
The most he does say is that he believes it most likely he would have
sought the plaintiff’s instructions regarding settlement of the 2008 accident
when discussing settling this 2006 accident.

[28]        
He does agree that he engaged in discussions with Adjuster Johnston on
February 2, 2010 at a time he believed the defendant Wells was unlikely to be
found liable for the plaintiff’s injuries in this action.

[29]        
However he says he cannot recall any discussion with Adjuster Johnston
as to how much money was to be allocated to the 2006 accident and how much to
the 2008 accident, and he cannot recall any discussion of how much money was to
be allocated to the plaintiff’s tort claims as opposed to her Part 7 claims.

[30]        
The plaintiff says in her affidavit of August 9, 2010, inter alia,
the following:

3.         On a date of which I cannot be certain, sometime
in late January or early February 2010, I was contacted by my lawyer, who was
at that time Mr. Randy Albertson. He told me that ICBC had made an offer
of $7,000.00 to settle the claim against Tanya Wells. I met him at his office
at his request, to discuss the offer. I relied on Mr. Albertson to advise
me what to do in the circumstances. He advised me that it was a good idea to
accept the offer to put an end to the claim against Tanya Wells. He advised me
that he would retain the settlement money to pay his disbursements. …

6.         In my discussions with Mr, Albertson, there was no
mention or even any thought on my part of settling a claim which I may have
arising out of a December 29, 2008 accident. I had not even retained Mr. Albertson
as my lawyer for that matter. I had no intention of settling that claim and I
did not instruct Mr. Albertson to settle that claim.

7.         In my discussions with
Mr. Albertson, there was no mention or even any thought on my part that I
would be required to agree that I would not seek to recover from Tanya Wells
any portion of the damages attributable to the fault of ICBC and/or Wells
and/or Andrew Johnson and/or Natasha Bouchot and/or Jay Chalkman and/or Hillary
Chalkman.

I am sure she meant to say by
this last statement that she would not seek to recover from the co-defendants
in this action or from the persons involved in the 2008 accident any portion of
the damages attributable to the fault of ICBC and/or Wells.

8.         In my discussions with
Mr. Albertson, there was no mention of the fact that I have a claim
against ICBC for "no-fault benefits", which I have now been told is a
separate claim from my claim against Tanya Wells. I cannot say that I had
intention and I cannot say that I had no intention of settling that claim,
because I was not even aware that it existed.

Settlement of the 2006 Motor Vehicle Claim – Analysis and Decision

[31]        
It is clear to me that the claim made in this action against the
defendant Wells was agreed to be settled between Mr. Albertson and Adjuster
Johnston. It is also clear to me that Mr. Albertson took instructions from
the plaintiff for this settlement.

[32]        
The plaintiff says that in late January or early February 2010 Mr. Albertson
told her ICBC had made an offer of $7,000 to settle this claim against the
defendant Wells; that she met with Mr. Albertson and discussed the offer
and relied on him to advise her what to do in the circumstances; that he
advised it was a good idea for her to accept the offer to put an end to the
claim against the defendant Wells and that he would retain the settlement
monies to pay his disbursements.

[33]        
This evidence of the plaintiff indicates to me that she did instruct Mr. Albertson
to accept an offer on behalf of the defendant Wells to settle this claim
against her.

[34]        
Whether she also instructed Mr. Albertson to settle any claim for
the 2008 motor vehicle accident remains to be seen.

[35]        
In addition, while I am sure this claim against the defendant Wells was
agreed to be settled, it is unclear to me what the terms for the settlement
were to be.

[36]        
The plaintiff says she heard Mr. Albertson say $7,000. Adjuster
Johnston says she and Mr. Albertson agreed on $7,500 for both accidents. That
is what she instructed Mr. Parkinson was to be the settlement amount. Yet
when she issued the settlement monies, it was in two cheques, one for $5,000
that she assigned to the 2006 accident and one for $2,500 that she assigned to
the 2008 accident.

[37]        
Adjuster Johnston does not say in her affidavit nor in her note that
such a division was agreed upon by Mr. Albertson. She does not say how she
arrived at that division.

[38]        
To further complicate matters, Mr. Parkinson applies now for an
order that this action itself be ordered settled for $7,500, which would
exhaust all the settlement monies authorized by Adjuster Johnston and leave
nothing for the 2008 accident.

[39]        
$7,500 settlement monies for this action is not anyone’s evidence so I
am not prepared to make such an order.

[40]        
I have concluded that the plaintiff’s application to cross-examine Adjuster
Johnston on her affidavit should be allowed.

[41]        
The cross-examination will be restricted to why Adjuster Johnston
attributed $5,000 to the 2006 accident and $2,500 to the 2008 accident, what
was said between her and Mr. Albertson about the 2008 accident and its
settlement, why she thought Mr. Albertson was retained by the plaintiff or
the 2008 accident, what discussion there was between the two of them on the
terms of the release, and what discussion there was between the two of them on
settlement of any Part 7 benefits claim.

[42]        
I see no usefulness in questioning Adjuster Johnston about Mr. Albertson’s
authority to settle the 2006 accident because he clearly had that authority
from the plaintiff given the plaintiff’s affidavit evidence.

[43]        
All of the other applications of both parties are adjourned generally to
await completion of the cross-examination of Adjuster Johnston.

“The Honourable Mr. Justice
Truscott”