IN THE SUPREME COURT OF BRITISH
COLUMBIA

Date: 20120229

Docket: M083051

Registry:
Vancouver

Between:

Huong
Thu Truong

Plaintiff

And:

Simon Kimble
Marples, Nissan Canada Inc.,

and
Sandra Gene Marples

Defendants

Before: The Honourable Mr. Justice
D.M. Masuhara

Reasons for Judgment

Introduction:

[1]            
The application before me seeks a declaration that the parties entered
into a full and final binding settlement of a motor vehicle accident claim on
or about March 4, 2010.

[2]            
The defendants, represented by Mr. Grewal, say that the settlement
was reached.  The plaintiff, Ms. Truong, who was represented by Mr. Shane
for the settlement, argues that it was not.  Ms. Truong was represented by
Mr. McIntosh for this application.

[3]            
By consent, Ms. Truong, Mr. Grewal and Mr. Shane were cross-examined
on their affidavits.  Ms. Truong had the benefit of an interpreter to
assist her if needed.

[4]            
On May 22, 2008, Ms. Truong was struck by a motor vehicle at
the north side of the intersection at 152^nd Street and 102A Avenue,
in Surrey, B.C.  She was attempting to cross 152^nd Street as a
pedestrian at the time.  She was injured as a result of the accident and
retained Mr. Shane to represent her on May 26, 2008.

[5]            
Mr. Grewal represented the defendants and ICBC.  An offer was made
to settle the tort claim for $2,500 prior to discoveries.  It was not accepted. 
On March 2, 2010, Mr. Grewal made another offer to settle to Mr. Shane. 
On March 4, 2010, Mr. Shane accepted the offer.  It is apparent that Mr. Shane
and Mr. Grewal came to a settlement.  These two experienced counsel say
that the settlement was an all-inclusive $10,000 payment to Ms. Truong,
which included settlement of the tort claim and a Part 7 benefits claim
(the “Claims”).

[6]            
Ms. Truong agrees that Mr. Shane was authorized to accept the
offer.  Mr. Shane and Mr. Grewal both testified that it was their
understanding that the offer included Part 7 benefits.  There is no
question that there was an offer and acceptance between counsel on behalf of
their respective clients.

Plaintiff’s position:

[7]            
Ms. Truong seeks to have the settlement agreement declared
unenforceable based on the primary argument that the offer made by Mr. Grewal
to Mr. Shane was ambiguous, and thus incapable of forming a binding
contract.  Her alternative argument is that the settlement is unfair and should
not be sanctioned by the court.

[8]            
In terms of ambiguity, the plaintiff relies on Sharma v Bigford (1995),
5 B.C.L.R. (3d) 333 (C.A.).  In that case, McEachern C.J.B.C.  found that
a letter confirming the offer at issue was ambiguous because it could have had
more than one meaning as to what was being settled.  The plaintiff argues that
the brief notation of Mr. Grewal that “10k all in” is insufficient to
prove that a settlement for both of the Claims could have been entered into, as
the note does not specify tort and benefits.  She argues there was not enough
for Mr. Shane to accept given the sparseness of the note.  It is also
argued that there was no further follow up by letter or e-mail to corroborate
the settlement.  It was further submitted that Mr. Grewal’s affidavit was
13 months after the fact and thus would not be reliable.

[9]            
The plaintiff argues that the context of the discussions between counsel
were in relation to the tort claim and the unlikelihood of success on the
question of liability.  He points out that liability does not affect Part 7
benefits.  Further, it is argued that Mr. Grewal’s testimony at trial
should not be relied upon because Mr. Grewal was hostile and argumentative,
and was not convincing in his explanation of what his offer was, particularly
in that Mr. Grewal was not conversant with the details of Part 7
benefits.

[10]        
It was also argued that because of Ms. Truong’s limitations with
the English language she could not have understood that her Part 7 benefits
were included in the settlement.

[11]        
In terms of the alternative argument, the plaintiff submits that the
settlement is unfair and should not be sanctioned by the court.  The essence of
the argument is that Ms. Truong gave up on Part 7 benefits for
nothing.  In support of this argument, the case of Pastoor v. Pastoor,
[2007] O.J. No. 2851 (Ont. S.C.J.) was cited.  Perell J. set out
various considerations at para. 22 as follows:

1.         Were either of the
parties represented by legal counsel or the beneficiary of legal advice?

2.         Was either party
otherwise disadvantaged at any time during the course of the negotiations?

3.         Can the written material
the parties prepared, or the oral representations, that are being relied upon
support a prima facie conclusion that either constitutes a settlement
agreement?

4.         Does the evidence
demonstrate that the parties intended that the written or oral representations
or negotiations are to be binding on them?

5.         Was there an intention
that some final act or determination be made before the settlement was to be
final and binding?

6.         Does the enforcement or
non-enforcement of the negotiated resolution result in an injustice to either
of the parties?

7.         Does enforcement
encourage negotiated settlement and discourage litigation and does it support
the overall purpose and intent of the principles of the Family Law Act?

Defence position:

[12]        
The defence submits that, simply put, Ms. Truong is experiencing settler’s
remorse.  They say there is no ambiguity in the settlement and both Mr. Grewal
and Mr. Shane knew what they agreed to.  Further, the Release document
sent to Mr. Shane following his acceptance of Mr. Grewal’s offer was
reviewed by Mr. Shane and sent by his office for Ms. Truong to sign.

[13]        
The defence also says that Ms. Truong does not have a deficiency in
English.

Discussion:

[14]        
Ms. Truong has a diploma from Kwantlan College in office
administration.  Subsequently, in 1987 she began employment with the Canada
Revenue Agency (“CRA”).  She works in the English language every day.  She has
been promoted at her job and trains other employees in taxation in English.  She
also speaks with taxpayers in English on taxation matters as part of her daily
responsibilities.  Taxation, in my view, is not a simple topic of conversation.

[15]        
Ms. Truong also sat through a lengthy examination for discovery and
gave her sworn evidence in English, without the assistance of the Vietnamese
interpreter who was present.

[16]        
Ms. Truong never asked Mr. Shane for translation assistance. 
All communication between Mr. Shane and Ms. Truong was in English and
he never noticed, nor did Ms. Truong indicate, any concern in her
understanding him.  I accept Mr. Shane’s evidence.  Mr. Shane deposed
that at least half of his clients speak English as a second language and that
interpreters are used to convey his advice.

[17]        
I do not find the fact that English is her second language to be a
barrier to her understanding of her discussions with Mr. Shane.

[18]        
Though Ms. Truong has some issues with English, it is apparent that
she understands it and knows how to express her concerns.  A key e-mail that
she sent to Mr. Shane on March 3, 2010 is revealing in that it shows
she was alive to the Part 7 benefits issue—though she may not have
understood them to be characterized as “Part 7 benefits”.  She wrote about
concerns for her health problem, not having health insurance, and the
possibility of not being able to handle her job.

[19]        
In my view, this e-mail supports Mr. Shane’s evidence that he
discussed and explained the Part 7 benefits with Ms. Truong.  This
explanation can be seen in an earlier conversation that Mr. Shane had with
her on December 2, 2009.  A note to file written by Mr. Shane on that
date states: “Discussed defendant XFD + witnesses.  ICBC only likely to move
off formal if she also releases no faults.  Discussed what these were.  Decided
OK to release b/c she has private insurance.  Wants to settle claim.  Not want
trial risk.”  There is also a later note in the file made by Mr. Shane
dated March 3, 2010 which states: “T/C to client to confirm accept offer. 
Client confirmed.  Client confirmed OK with releasing ICBC and Defendant of all
claim as per earlier talks.  Not wanting trial.  Not want risk.”

[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.

Conclusion

[28]        
I conclude that there was a full and final binding settlement on or
about March 4, 2010.  The application is dismissed.  The defence is
entitled to costs of the application at Scale B.

“The
Honourable Mr. Justice Masuhara”