IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20120920

Docket: M071181

Registry:
Vancouver

Between:

Chris Tolentino

Plaintiff

And:

Kuldip Gill and
Nathan Schneider

Defendants

Before:
The Honourable Madam Justice Fisher

Reasons for Judgment

[1]          
The plaintiff, Chris Tolentino, was injured in a motor vehicle accident
on January 10, 2004. He commenced this action on March 13, 2007, over a year
after the expiry of the two-year limitation period in s 3(2) of the Limitation
Act, RSBC 1996, c 266. The only issue in this trial is whether the
defendants are estopped from relying on a limitation defence as a result of the
words or conduct of an insurance adjuster employed by the Insurance Corporation
of British Columbia (ICBC).

Facts

[2]          
Mr. Tolentino was a front seat passenger in a vehicle driven by the
defendant Kuldip Gill when there was a collision with the vehicle driven by the
defendant Nathan Schneider. He suffered soft tissue injuries and filed a claim
with ICBC shortly after the accident. The first ICBC adjuster on his file was
Colin McArthur. Mr. Tolentino met with Mr. McArthur several times regarding his
claim. During this time Mr. Tolentino was receiving massage therapy and
chiropractic treatments. In July 2004, another adjuster was assigned to the file,
Sandra Brunac-White. There was no communication between Mr. Tolentino and ICBC
for some time. On July 13, 2005, Mr. Tolentino went to the claims centre to see
the adjuster. He was told that Ms. Brunac-White was then the adjuster on the
file and was available to meet with him.

[3]          
There is conflicting evidence between Mr. Tolentino and Ms. Brunac-White
about what happened at this meeting, which I review below. Essentially, Mr.
Tolentino says that he told Ms. Brunac-White that he did not have a lawyer and
when he asked if he needed one she told him he did not, as it was her job to
settle claims. His understanding was that she was going to collect some
information and medical records and would then get back to him and they would
“work something out”. However, he never heard from her again. Ms. Brunac-White
denies that they discussed lawyers. She says that they discussed his claim
briefly and Mr. Tolentino told her that he had still not recovered and was not
ready to settle. Her understanding was that she was going to obtain updated
information and medical records and Mr. Tolentino was to contact her when he
returned from a trip to Europe. She did not hear from him, and after the
limitation period expired in January 2006, she closed the file.

[4]          
There is no dispute in the evidence, however, that Ms. Brunac-White made
no mention of the limitation period. This issue was not discussed.

Promissory estoppel

[5]          
The plaintiff relies on the doctrine of promissory estoppel. He says
that the statements made by Ms. Brunac-White amounted to an acknowledgement of
liability, the start of negotiations, and a communication that there were no
legal impediments to the claim other than determining quantum.

[6]          
The legal principles with respect to promissory estoppel are clearly
described in Maracle v Travellers Indemnity Company of Canada, [1991] 2
SCR 50. The party relying on the doctrine must establish two things:

1.         the other party, by
words or conduct, made a promise or assurance that was intended to affect their
legal relationship and to be acted on; and

2.         in reliance on the
promise or assurance, the first party acted on it or in some way changed his
position to his detriment.

[7]          
The court referred to these comments in John Burrows Ltd. v
Subsurface Surveys Ltd., [1968] SCR 607 at 615:

It seems clear to me that this
type of equitable defence cannot be invoked unless there is some evidence that
one of the parties entered into a course of negotiation which had the effect of
leading the other to suppose that the strict rights under the contract would
not be enforced, and I think that this implies that there must be evidence from
which it can be inferred that the first party intended that the legal relations
created by the contract would be altered as a result of the negotiations.

[8]          
The promise may be inferred from circumstances but it must be
unambiguous: see Engineered Homes Ltd. v Mason, [1983] 1 SCR 641 at 647.

[9]          
Promissory estoppel can operate to prevent an insurer from relying on a
limitation period where a promise or assurance is made to that effect. An
admission of liability does not in itself establish promissory estoppel but it
is a factor from which the court may infer that a promise was made not to rely
on a limitation period. As the court noted in Maracle at 59:

… an admission of liability
which is to be taken as a promise not to rely on the limitation period must be
such that the trier of fact can infer from it that it was so intended. There
must be words or conduct from which it can be inferred that the admission was
to apply whether the case was settled or not, and that the only issue between
the parties, should litigation ensue, is the issue of quantum.

[10]       
Some doubt has been expressed as to whether this court has inherent
equitable jurisdiction to relieve against the statutory limitation periods
contained in the Limitation Act: see Field v Harvey, 2012 BCSC
456 at paras. 32-35. The concern is that the application of estoppel would
render the statutory provision meaningless. However, in Macdonald v
Macdonald (1996), 21 BCLR (3d) 379, this court concluded that estoppel is
available as an argument whenever a limitation period is relied upon,
regardless of the source. Harvey J. noted that the court in Maracle
appeared to assume the applicability of the doctrine of estoppel to statutory
limitation periods.

[11]       
I would tend to concur with the view expressed in Macdonald. If
estoppel applies in a given case, it does not render a statutory limitation
meaningless; rather it renders it unenforceable in a particular circumstance on
the basis of equitable principles. In Maracle, the limitation period was
a statutory condition of an insurance policy; in Macdonald, the
limitation period was the six month period in the Wills Variation Act,
RSBC 1996, c 490. I see no material difference in principle between these other
statutory limitation periods and those in the more general Limitation Act.
However, in Chan v Lee Estate, 2004 BCCA 644, while estoppel was applied
to the limitation period in the Wills Variation Act, Newbury JA (at
para. 29) declined to comment on whether estoppel may be applied to extend or
postpone a limitation period in the Limitation Act, “which
has been said to provide a complete code and contains a series of detailed
postponement provisions.”

[12]       
In any event, it is not necessary for me to determine this issue, as I
have concluded that the evidence in this case falls short of establishing the
necessary elements for promissory estoppel.

The evidence and findings

[13]       
As noted above, the evidence of Mr. Tolentino and Ms. Brunac-White differ
in some material respects in respect of the discussions they had on July 13, 2005.

[14]       
According to Mr. Tolentino, Ms. Brunac-White introduced herself, asked
what she could do for him and quickly asked what he wanted for a settlement. He
told her that he was not sure he was ready to settle because he did not know
what his case was worth. Ms. Brunac-White asked him if he had a lawyer, to
which he replied, “No,” and he then asked if he needed one. Ms. Brunac-White
answered, “No,” as it was her job to settle claims. She then told Mr. Tolentino
that she was going to collect some information and medical records, would get
back to him, and they would “work something out”. He said that he trusted she
would deal with his claim and they would resolve it after she had reviewed the
records. However, he did not hear from her.

[15]       
Mr. Tolentino testified that sometime later – apparently in about
September 2006 – he received a call from someone at ICBC asking him if he was
satisfied with the claim he had settled. He told the person that he had not
settled and the call ended. It was at this point that he realized he needed to
retain a lawyer. Shortly after this he retained Mr. Cameron.

[16]       
Ms. Brunac-White testified that after she took over Mr. Tolentino’s file
she tried to contact him both by telephone and mail, but he did not return her
calls and the mail was returned undelivered. The meeting on July 13, 2005, was
an opportunity for her to ask questions about the accident and Mr. Tolentino’s
state of recovery. He told her that he had still not recovered and that he had
seen his doctor in the past month. She brought up settlement and asked him what
he thought his claim was worth, but he was not ready to settle that day. She
said that they had an agreement that she would contact the doctor to obtain his
medical records and Mr. Tolentino would contact her when he returned from a
trip to Europe, and she gave him her business card. She did not hear from him. She
made no attempt to contact him because of their “verbal agreement” that he was
to contact her and because she had difficulty contacting him before. After the
limitation period expired on January 10, 2006, she conducted a writ search and
closed the file on February 2, 2006.

[17]       
Ms. Brunac-White denied that there was any discussion about a lawyer. She
said that Mr. Tolentino told her only that he had not talked to anyone about
his claim. She said that “anyone” did not include a lawyer. If such a
discussion had taken place, her practice was to make a note “anticipation of
litigation” and she made no such note in this case. It was also her practice to
discuss the two year limitation period and tell the claimant that he was free
to retain a lawyer if that was his choice. She said that such a discussion
would only occur if the claimant brought up the subject of a lawyer; she did
not initiate such discussions.

[18]       
Ms. Brunac-White, quite understandably, did not have an independent
recollection of the discussion on July 13, 2005. She relied on notes she took
at the time. A pertinent portion of her notes state:

I asked if he wanted to settle
his claim and if he has any OOP expenses. He said he paid for all his own P/T
and chiro. I asked if he has receipts, he said not with me. He did not expect
to settle the file today. He said that he hasn’t talked to anyone yet about the
claim and wanted to know what to do next. I asked what he thought his claim was
worth, he said he would have to research it.

[19]       
Mr. Tolentino did have an independent recollection. He was quite certain
that there was a discussion about lawyers. I accept that evidence generally. I
did not find Ms. Brunac-White’s explanation about Mr. Tolentino not having
talked to “anyone” to make sense. Her notes indicate that this comment was made
in the context of Mr. Tolentino not knowing what his claim was worth and what
to do next. It seems unreasonable to me that such a reference would not include
those who were in a position to advise him about such things. I find that there
was some discussion about lawyers and that Ms. Brunac-White told Mr. Tolentino
that it was not necessary that he retain counsel at that time. However, I also
find that she did not go so far as to advise Mr. Tolentino that he should
not retain counsel, nor was the discussion of the more formal type that would
have alerted Ms. Brunac-White to make a notation “in anticipation of
litigation”. I accept her evidence that it was her intention to discuss the
matter with Mr. Tolentino as soon as she obtained the updated medical
information. I also accept her evidence that Mr. Tolentino was tasked with
contacting her when he returned from a trip to Europe.

[20]       
 Mr. Tolentino had been difficult to contact before July 2005. Ms.
Brunac-White called him several times in July 2004 when she took over the file
but he did not return her messages. She also sent him a letter with an offer of
settlement and a cheque but it was returned undelivered. When they met on July
13, 2005, Mr. Tolentino confirmed that his telephone number had not changed. Ms.
Brunac-White said that she could not “pin him” to a date to meet again so she
gave him her business card and advised him to call her when he returned from
his trip. In these circumstances it is understandable that she would be
reluctant to rely on her ability to contact him.

[21]       
While Mr. Tolentino had a different understanding, he admitted that he
told Ms. Brunac-White that “there was a possibility” he might be out of town
for while. And while he denied that she gave him her business card, his
evidence in discovery was less certain; he did not recall her handing him a
card. Ms. Brunac-White was very clear about the arrangements they made for the
next steps.

[22]       
Accordingly, I find that on July 13, 2005, Mr. Tolentino told Ms.
Brunac-White that he had not talked to anyone about his claim (including a
lawyer) and Ms. Brunac-White advised Mr. Tolentino that it was not necessary to
have a lawyer at that time. Ms. Brunac-White intended to discuss the matter
with Mr. Tolentino after she obtained updated medical information. Mr.
Tolentino was to contact her when he returned from a trip but he did not do so
before the limitation period expired on January 10, 2006. Ms. Brunac-White did
not attempt to contact Mr. Tolentino either, and she closed the file on
February 2, 2006, after conducting a search for a writ of summons.

Application of promissory estoppel

[23]       
It is indeed unfortunate that Ms. Brunac-White made no effort to contact
Mr. Tolentino before the limitation period expired. It would have been a simple
task that could have served the interests of both parties. However, as the plaintiff
concedes, ICBC as the insurer has no duty to advise him about the limitation
period. Silence or inaction may be considered a representation only where the
representor owes a legal duty to the representee to disclose something or take
certain steps: Ryan v Moore, 2005 SCC 38.

[24]       
The plaintiff submits that it would be unfair to permit the defendants
to rely on the limitation defence for the following reasons:

1.         Mr. Tolentino was a
layperson and Ms. Brunac-White was an experienced adjuster far more
knowledgeable about the legalities of the claim;

2.         Ms. Brunac-White assured
Mr. Tolentino that he did not need a lawyer and could settle the claim with her
when there was only six months remaining before the expiry of the limitation
period;

3.         liability was not in
issue;

4.         in the context of
Ms. Brunac-White’s knowledge about the limitation period, and to some extent
her special relationship to him as a first party insurer in respect of Part 7
benefits[1],
her words implied that there would be no legal impediments to settling the
claim; and

5.         no steps were taken
to contact Mr. Tolentino before the limitation period expired.

[25]       
To ground a claim in promissory estoppel, Mr. Tolentino must first
establish that Ms. Brunac-White assured him that the defendant’s admission of
liability applied at any time and was intended to affect their legal
relationship and to be acted on. I agree that Ms. Brunac-White was more
knowledgeable than Mr. Tolentino about the legalities of the claim but I am not
satisfied that her communication to him reasonably implied that there would be no
legal impediments to settling his claim. Although liability was not in issue
and the adjuster expected the case to settle, the parties had not begun
negotiations in any meaningful way. There was no discussion about time limits. The
relevant discussion was not in relation to Part 7 benefits. There are no words
or conduct from which I can infer that the implicit admission of liability for
the bodily injury claim was intended to apply whether or not the matter settled
and regardless of time. The adjuster intended only that she and Mr. Tolentino
would be in a position to discuss settlement within a relatively brief period
of time, once she obtained the additional medical records.

[26]       
These circumstances are distinguishable from those in Brar v Roy,
2004 ABQB 383, aff’d on this ground 2005 ABCA 269, a case relied on by the
plaintiff. There, the parties were in the process of negotiating a settlement
close to the expiry of the limitation period. The adjuster made an
unconditional, open-ended offer to the plaintiff’s lawyer that was accepted within
a reasonable time but shortly after the limitation period had expired. The
trial judge held that the defendant was estopped from relying on the Limitations
Act, RSA 2000, c L-12, finding that the plaintiff believed that the
defendant had accepted liability and that the negotiations would continue to
settlement. The Court of Appeal found no basis to interfere with those findings
of fact.

[27]       
Even if Mr. Tolentino were able to establish that the admission of
liability was intended to apply at any time, I am not satisfied that there is
evidence from which I can infer that he relied on the assurance or that the
admission caused him to miss the limitation period. He testified that he
trusted that Ms. Brunac-White would deal with his claim but admitted that he
always knew that he was free to hire a lawyer. Moreover, he was a bit put off
by what he described as her abrupt behaviour in asking him what he wanted. I
find it implausible that he would have relied on the adjuster to the extent
submitted in these circumstances. His history of inaction in dealing with his
claim is more consistent with a finding that he simply neglected to follow up
with the adjuster within the relatively short time periods contemplated after
the July 13, 2005 meeting. Mr. Tolentino testified that he was pre-occupied
with other issues, in particular his father’s illness and subsequent death, but
he said that this took place in 2006 and 2007, which was after the expiration
of the limitation period. I certainly accept that this had a bearing on his
delay in seeking counsel, but this was after it was already too late.

[28]       
For these reasons, I conclude that the defendants are not estopped from
relying on the limitation defence.

[29]       
I wish to add, however, that I was disturbed by the adjuster’s approach
in this case. She sought to rely on an “agreement” with the plaintiff about the
next steps but when he did not contact her after several months, she ought to
have considered that there could have been a misunderstanding. While she may
not have been successful in making contact with the plaintiff given his
history, her failure to make any attempt to contact him before the limitation
period expired was in my view unreasonable. She had a telephone number and
could have left him a message. Although she did not have a legal duty to do so,
given her knowledge of the claim, this would have been a more reasonable and
fair approach.

[30]       
The plaintiff’s action is dismissed. Although the defendants have been successful,
given the facts, I would be inclined to make no order as to costs. However,
this issue was not argued. The parties have leave to make submissions on costs
if they are unable to agree.

“Fisher
J.”