IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20110308

Docket: M103661

Registry:
Vancouver

Between:

Lara Varesi

Plaintiff

And

Pelsie S. Cadelina
and Cantrail Coach Lines Ltd.

Defendants

Before:
The Honourable Mr. Justice McEwan

Reasons for Judgment

[1]            
The defendants seek a declaration that this action has been settled.

[2]            
The subject matter of the action is a collision between the plaintiff’s
motor vehicle and a bus operated by the defendants. It occurred on August 5,
2008, on Terminal Avenue in Vancouver.

[3]            
The plaintiff’s claim is for soft tissue injuries. She had a series of
discussions with representatives of the Insurance Corporation of British
Columbia, attempting to settle on behalf of the defendants. The plaintiff also
had, potentially, a direct claim against the Insurance Corporation of British
Columbia as her insurer for no-fault, or “Part 7” benefits, for certain
prescribed expenditures arising from the accident.

[4]            
On January 30, 2009, Roger Lam, an adjuster from the Insurance Corporation
of British Columbia offered the plaintiff $4,216 to settle her claim. He
explained the circumstances in his affidavit:

I offered her $4,216.00 in total
in exchange for a signed release, which I explained would mean that she is
accepting that amount of money to permanently close her claim.

[5]            
Mr. Lam’s covering letter to the plaintiff said “You may cash the enclosed
cheque as soon as the release is received.” The release was expressed to be
full and final, and to include claims against the Insurance Corporation of
British Columbia under Part 7.

[6]            
There was a modest amendment to add another expense bringing the total
to $4,289.49.

[7]            
Later on January 30, 2009 the plaintiff contacted Mr. Lam to say she had
had second thoughts. She wrote a letter on February 11, 2009 saying that she
was not comfortable settling for $4,289.49:

I am writing in regards to our
previous phone conversation about settlement of my claim. I thank you for your
offer but I have not yet signed off on anything or cashed the cheque at this
point due to my concerns about my ongoing pain at the injury site and the
stress this accident has caused me.

She said, instead, that she was prepared to settle for
$10,000 “inclusive of all non-pecuniary damages and disbursements incurred.”

[8]            
Mr. Lam recorded his reaction as follows:

On or about February 18, 2009 I
telephoned the Plaintiff to discuss her February 11, 2009 letter. I advised her
that we had come to an agreement as to settlement on January 30, 2009. In
response, the Plaintiff queried whether I could keep her file open as she was
still in pain and required further treatment. I agreed to keep the file open
and that I would follow up with her in a month’s time.

[9]            
A second adjuster, Bharti Gopal, became involved with the file. On April
6, 2009 she discussed the matter with the plaintiff who reiterated her position
that she would settle for $10,000. Ms. Gopal declined that offer.

[10]        
On October 1, 2009 Ms. Gopal had a telephone discussion with the
plaintiff wherein she reiterated her view that Mr. Lam’s offer was fair. She
also asked for return of the cheque, while advising the plaintiff that the $4,284.49
offer remained open.

[11]        
On March 23, 2010 Ms. Gopal wrote the plaintiff setting out an offer to
settle for $6,971.25 following a review of some new clinical records.

[12]        
The plaintiff made a further proposal on April 30, 2010. After setting
out some treatment information, she said:

I would like to settle this
matter but as I will need to continue with as much massage therapy as finances
will allow I feel that my future needs must be taken into account. I have been
working at home for Craftworks during this time doing hand and machine sewing
and have found that the pain has hindered me from working more at my sewing
machine. It has been very difficult having additional pain to deal with and as
it has continued for close to 2 years I feel that my original request of
$10,000 is still fair. Although my research on the CanLII website leads me to
believe I may be entitled to a higher settlement, at this time I am still willing
to settle the claim for this amount. I have consulted with a lawyer in regards
to filing a writ but again would like to be able to reach a fair conclusion
outside of the court system.

[13]        
On May 13, 2010 a third adjuster, Grahame Boswell, contacted the plaintiff
to accept her offer of $10,000. Mr. Boswell describes this contact as follows
in his affidavit:

On or about May 13, 2010 I
telephoned the Plaintiff to discuss her offer of $10,000. I asked whether she
was willing to move off the figure of $10,000 and she replied in the negative.
And so, while I thought the offer was too high and that the claim was
worthless, I made an economic decision to avoid legal fees and to settle the
claim for the $10,000 the Plaintiff had demanded. I advised the Plaintiff that
I would pay her the $10,000 she was asking for and that the claim was settled
on the condition that the Plaintiff provide all the original receipts for her
physical therapies when she attended the claims centre to sign the release and
pick up her cheque. The term as to the provision of receipts was intended to be
solely for the benefit of the Defendants.

[14]        
The notes he recorded contemporaneously read as follows:

SETTLEMENT –
SPOKE TO LARA- ATTEMPTED TO NEGOTIATE WITH HER A OFF HER DEMAND BUT SHE WILL
NOT MOVE. DECIDED TO SETTLE AT THIS TIME AS THIS FILE WILL BECOME EXPENSIVE TO
DEFEND IN THE HANDS OF THE WRONG LAWYER GIVEN THE MULTIPLE ISSUES SHE HAS. WE
WERE 3K APART. SETTLED OVER THE PHONE ON THE CONDITION SHE HAS TO PROVIDE ALL
ORIGINAL RECEIPTS WHEN SHE COMES IN TO SIGN RELEASE.

PART 7 –
69.00 FOR 3 MASSAGE TX

SPECIALS – FOR
ACUPUNCTURE/MASSAGE TX-404.25

[15]        
On May 19, 2010 the plaintiff sent Mr. Boswell an email saying she did
not wish to settle her claim. She says that her memory of the telephone conversation
is different from Mr. Boswell’s:

I have a different recollection
of the telephone call on May 13, 2010. Mr. Boswell purported to accept my
settlement offer of $10,000 and requested that I submit all of my out-of-pocket
expense receipts. It was my understanding that my out-of-pocket expenses would
be reimbursed over and above the $10,000 for pain and suffering.

[16]        
Mr. Boswell described the email as follows:

On or about May 19, 2010, I
received an email from the Plaintiff advising that she had decided to “hold off
on settling [her] case right away”. In particular, she advised that since our
conversation on May 13, 2010 she had received medical advice to the effect that
it was uncertain how long it would take for her symptoms to resolve. She also
advised that it was a difficult time of year for her as it was approximately
the one-year anniversary of the death of her common law husband and did not
feel comfortable “signing off of anything while in a distressed state”. Prior
to this email, the Plaintiff had not mentioned the death of her husband to me,
nor did she mention being in a distressed state.

[17]        
The file then appeared to have returned to Ms. Gopal, who wrote the
plaintiff on June 21, 2010, to say the following:

We write regarding the settlement of the above noted matter.
As you know, on May 13, 2010, we agreed to settle your claim against the
defendants Cantrail Coach Line Ltd, Pelsie S. Cadelina and ICBC for injuries
sustained in a motor vehicle collision of August 5, 2008, for a total payment
to you from ICBC of $10,000.00. ICBC waives the terms of this agreement that
you provide receipts for special damages sustained as a result of the
collision, and we enclose a cheque payable to you in the amount of $10,000.00
in full settlement of this matter.

I understand that you no longer wish to abide by the
agreement and have asked to re-open your claim. I am satisfied that the
agreement has been completed and that this claim is now resolved. Therefore, we
will not be considering further payment to you or further negotiate with you
regarding this claim.

Everything in this letter is
intended to be for the purpose of negotiating a claim settlement and is written
“without prejudice”. Nothing in the letter is, or shall be, considered an
admission of fault on the part of the insured and/or ICBC, or a waiver or
extension of any applicable limitation period.

[18]        
Following the discussion on May 13, 2010, Mr. Boswell had left a cheque
for $10,000 and a release of all claims at the front desk in the Claims’ office
for the plaintiff to execute. She never attended.

[19]        
The plaintiff filed a Notice of Civil Claim in respect of this matter on
July 23, 2010.

[20]        
The defendants (and collaterally the Insurance Corporation of British
Columbia) submit that the matter was settled as of May 13, 2010 and that the
requested receipts and the release were waivable requirements, being solely for
the benefit of the defendants. They take the view that they were accepting the
plaintiff’s standing offer of $10,000 which she previously had expressed to be
“inclusive of non-pecuniary damages and disbursement incurred.”

[21]        
The plaintiff’s position is primarily that there was no meeting of the
minds and that no settlement had been completed. The plaintiff’s position is
that the defendants, having rejected her $10,000 offer, were making a new offer
for $10,000 which she was being asked to accept.

[22]        
The defendants take the position that there was, in fact, a complete
oral contract at the point at which the plaintiff apparently accepted an offer
for $4,289.49, which they did not insist upon, although they maintain it would
have been legally enforceable. That agreement was said to be “in exchange for a
release” which the plaintiff did not sign. The oral terms the defendants say
were concluded on May 13, 2010 do not appear to have been accompanied by a
similar stipulation, although it is clear that in order to pick up the cheque,
the plaintiff would have been expected to sign a release, including a release
of the Part 7. These were noted in the release, but not specifically noted as
discussed elsewhere in the materials. Properly speaking, a release of the
claims in the action would not include Part 7 benefits which arise separately.

[23]        
The defendants are claiming that there was an enforceable oral contract
before the cheque passed or a release was signed. It is not at all clear that
signing the release was not a condition of releasing the cheque. It had been
the first time an offer had been made by the defendants, and a requirement to
sign the release was presumed in Mr. Boswell’s note of the May 13, 2010
conversation. “Signing off” also appears to have been in the plaintiff’s mind
as of February 11, 2009, as the point at which a settlement was irrevocable
(see para. 7 herein).

[24]        
It is not clear that the terms were fully and completely understood when
the conversation occurred on May 13, 2010, given the lack of evidence that Part
7 was discussed. It is also not at all clear that the defendants would not have
insisted that the release be signed (that is, that the contract be evidenced in
writing), had she refused to sign, or that the plaintiff was not labouring
under a contrary view as to when the contract was made, induced by the
defendants’ insistence on a release on past occasions.

[25]        
Where an oral contract is asserted and denied the case will generally
come down to a contest of credibility. An example in the contest of an
automobile insurance claim is Barclay v. Insurance Corp. of British Columbia,
2002 BCPC 15.

[26]        
This is not a case of duress or unconscionability or undue influence. Depending
on the evidence there may be an element of mistake. As the motion for summary
judgment has been defended, the issue is whether there was a “meeting of the
minds.”  The material is not at all decisive on that point, specifically as to
the inclusion of the Part 7 benefits in the settlement. Mr. Boswell and the
plaintiff differ on what was discussed, and such, if it remains an issue in the
action when it is tried will have to be resolved on an assessment of
credibility. Such an issue cannot be safely undertaken on the affidavit and
documentary material before the court.

[27]        
The defendants’ application for summary judgment on the alleged
settlement contact is, therefore, dismissed, with leave to bring the issue on
at trial, on a better evidentiary foundation, if the defendants consider it in
their interests to do so.

[28]        
Costs will be in the cause.

“The Honourable Mr. Justice McEwan”