IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20110218

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]            
In my preliminary Reasons for Judgment in this matter of November 23,
2010 [2010 BCSC 1651], I outlined the evidence as it existed at that time in
affidavit form, and ordered cross-examination of the Insurance Corporation of
British Columbia (“ICBC”) adjuster Patricia Johnston (“Adjuster Johnston”) on
her affidavit of May 20, 2010 as to the discussions she had with the
plaintiff’s former counsel, Randy Albertson, on settlement.

[2]            
The parties have now come back before me to complete their submissions
on whether there was a global settlement of this claim of the plaintiff arising
out of the motor vehicle accident of September 2006, together with any claim
she may have as a result of a subsequent motor vehicle accident of December
2008, for the all-inclusive sum of $7,500 for both claims.

[3]            
Adjuster Johnston has been cross-examined on her affidavit and in
addition Mr. Albertson has also been cross-examined on his affidavit.

[4]            
On her cross-examination Adjuster Johnston clarifies that she cannot
recall the exact words used by Mr. Albertson in discussing settlement with
her, other than he did discuss settlement of both claims with her and she had
no reason to think he did not have the authority to do that.

[5]            
She says she was directed by ICBC to settle both claims and she called Mr. Albertson
to try and do that.

[6]            
She says she believed that Mr. Albertson had authority to deal with
her on the 2008 claim as well because he negotiated with her and also settled
that claim with her. This led her to believe he was representing the plaintiff
on both claims.

[7]            
She did not receive any further confirmation from Mr. Albertson
that he had any authority to deal with the second claim but she says often that
is not provided to ICBC.

[8]            
She had reviewed the ICBC file on the 2008 accident before speaking to Mr. Albertson
and she saw that the plaintiff had been dealing directly with ICBC on that
claim, with a note on the file indicating that the plaintiff wanted to keep the
claim separate.

[9]            
She says she originally offered Mr. Albertson $7,000 for both claims
and he countered at $7,500 for both claims, which was accepted by her.

[10]        
She says her original affidavit evidence that there were two cheques
forwarded to Mr. Albertson in trust, one for $5,000 for the 2006 accident
and the other for $2,500 for the 2008 accident, was in error as in fact only
one cheque was issued to him for $7,500 for both claims. The division was only
an ICBC internal decision.

[11]        
She says that she and Mr. Albertson discussed and agreed that this
amount would cover any Part 7 claim for both accidents and would also involve
the execution by the plaintiff of a B.C. Ferries Release in this action and the
entry of a consent dismissal order in this action.

[12]        
In his cross-examination, Mr. Albertson confirms he has no specific
recollection of his conversation with the plaintiff about settling both claims
for $7,500 all-inclusive. He does say that it is possible she gave him the
authority to settle both claims because that would have been consistent with
his practice to settle all claims at once.

[13]        
He certainly agrees that he settled both claims with Adjuster Johnston
for $7,500 all-inclusive of tort and Part 7 claims, and agreed to a B.C.
Ferries Release and a consent dismissal order.

Analysis and Decision on Settlement

[14]        
The plaintiff says in her affidavit of August 9, 2010 that she discussed
settlement of her 2006 claim with Mr. Albertson for $7,000 but there was
no mention or even thought on her part of settling any claim arising out of the
2008 accident as she had not retained Mr. Albertson on that matter.

[15]        
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 any records indicating such a retainer, nor any recollection of
seeking these instructions from the plaintiff.

[16]        
The most he says in his affidavit is he believes he would have sought
her instructions on the 2008 accident when discussing settlement of the 2006
accident.

[17]        
The most he says in his cross-examination is that it is possible she did
instruct him to settle the 2008 accident because that would be consistent with
his practice to settle all claims at once.

[18]        
In my opinion with the plaintiff specifically denying any communication
with Mr. Albertson on the 2008 accident and any instruction to him to settle
that claim or potential claim, and any retainer by him on that matter, and with
Mr. Albertson not being able to point to any retainer for the 2008
accident nor able to say any more than that he believes he would have sought
her instructions on that accident as being consistent with his practice, I find
it impossible for me to conclude on this conflicting evidence whether Mr. Albertson
was acting on any actual authority of the plaintiff to settle the 2008 accident
as well as the 2006 accident.

[19]        
However, counsel for the defendant Wells submits that even if Mr. Albertson
was not instructed by the plaintiff on the 2008 accident, he still bound her to
a settlement of that claim as well as the 2006 claim through his actual
authority as her counsel on the 2006 claim giving him ostensible authority to
settle the 2008 claim as well.

[20]        
When I questioned counsel as to how a client would feel about finding
out that his counsel on one accident had gone ahead without instructions and
settled his claim for a second accident on which that counsel was not retained,
and the client was nevertheless bound by that, he submits to me that the case
of Baldissera v. Baldassi, 2000 BCSC 1788, provides authority for this
proposition, as an example of a situation where counsel who was not acting for
a claimant successfully bound that claimant to a settlement regardless.

[21]        
In Baldissera, the counsel acted for a number of Italian brothers
in a lawsuit over the administration of the estate of a deceased brother. One
of the plaintiff brothers continued to live in Italy and refused to sign a
settlement agreement that had been negotiated. The Baldissera counsel was
solicitor of record for all plaintiffs including that Italian brother but he
was receiving instructions throughout from the Canadian brothers on behalf of
all plaintiffs including the brother living in Italy.

[22]        
The court determined that the counsel was acting within his apparent
authority when he negotiated the settlement agreement on behalf of all his
clients, including his client in Italy, as he was acting on the reasonable
belief that he had the authority to enter into the settlement agreement on
behalf of the Italian brother because he had been receiving instructions
throughout from the Canadian brothers who deposed that they had been given the
authority by their Italian brother to make decisions on his behalf.

[23]        
In the course of her Reasons for Judgment, Bennett J. (as she then was)
reviewed the circumstances of the case of Anderson v. Carter (1986), 68
A.R. 100, [1986] A.J. No. 143 (Q.B.) as a factually similar case.

[24]        
In that case the applicant was a beneficiary of the estate of his mother
and sought to enforce a settlement agreement allegedly made with the other
beneficiaries, his niece and step-sister. All three beneficiaries had retained
separate counsel and an offer was forwarded to the applicant’s counsel by the
niece’s counsel that claimed to be made on behalf of the step-sister as well. This
offer was accepted by the applicant’s counsel.

[25]        
The offer was made without the niece’s counsel confirming that she had
instructions to settle on behalf of the step-sister, having simply taken the
instructions from the niece.

[26]        
Nevertheless, a binding settlement was found to have been reached on a
determination that the niece’s counsel was in fact acting for the step-sister
as well. As reported by Bennett J., the trial judge carefully noted the history
of the proceedings and the relationship between the niece and the step-sister
in which the step-sister had been content to let the niece convey her instructions,
knowing that offers were made to the applicant on her behalf.

[27]        
In my view both these decisions are completely distinguishable. In Baldissera
the counsel was solicitor of record for the Italian brother as well and had
been receiving instructions from him through his Canadian brothers, during the
course of the litigation.

[28]        
In Anderson the relationship between the niece and step-sister
was such that the step-sister was content to let the niece convey her
instructions and the niece then became in essence her agent for the purpose of
her offer.

[29]        
In this case Mr. Albertson was not solicitor for the plaintiff on
the 2008 accident. There was no issue of agency in taking instructions from her
on the 2008 accident. He either had her instructions or he did not. He had no
ostensible authority arising from any agency principles such as existed in Baldissera
or Anderson.

[30]        
It is my conclusion that no settlement of the 2008 claim or potential
claim has been proven by these affidavits or cross-examinations, on the basis
of any actual or ostensible authority of Mr. Albertson.

[31]        
Because the only settlement agreed to by Adjuster Johnston for the
defendant Wells with Mr. Albertson was a settlement of both claims for
$7,500 with no division of that amount into the individual claims, there are no
established terms of settlement of the 2006 claim either and it cannot be
enforced either.

[32]        
The defendant Wells seeks the assistance of the Court in enforcing a
global settlement by declaring a stay of the 2006 claim against her and by
declaring a settlement of the 2008 claim.

[33]        
I decline to grant these orders on the basis of the affidavit material
and the cross-examinations. I leave it to the defendant Wells as to whether she
wishes to pursue these orders at a full trial with examination of witnesses
before the Court.

[34]        
The defendant Wells also seeks an order that the Notice of
Discontinuance filed against her be declared valid.

[35]        
I decline to grant this order as well and in fact I order that the
Notice of Discontinuance be set aside and the claim proceed against the
defendant Wells.

[36]        
If the defendant Wells determines to pursue the issue of settlement
through to trial I assume she will have to produce all documents in her
possession, power or control on this issue during the course of the pre-trial
litigation.

[37]        
Accordingly I adjourn the plaintiff’s application for documents until it
becomes necessary at a later date.

[38]        
I also adjourn the plaintiff’s application to withdraw her deemed admission
by reason of Mr. Albertson’s alleged failure to respond to the Notice to
Admit delivered by the defendant Wells. While plaintiff’s counsel made written
submissions on this application, I did not receive any submissions from the
defendant Wells’ counsel and I consider it would be unfair to decide this issue
without giving that counsel the full opportunity to make submissions if
inclined to do so.

[39]        
In addition I adjourn the plaintiff’s application to amend her Notice of
Claim at this time when at least part of the proposed amendments depend upon
the prior determination of her application to withdraw her deemed admission.

[40]        
Finally, the plaintiff will have her costs of opposing the applications
of the defendant Wells but there will be no costs with respect to the
plaintiff’s applications because they have not as yet been dealt with.

“The Honourable Mr. Justice
Truscott”