IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20120523

Docket: S086393

Registry:
Vancouver

Between:

Katherine
Layne Robertson

Plaintiff

And

Resort
Municipality of Whistler operating
Meadow Park Sports Centre

Defendant

Before:
The Honourable Madam Justice Hyslop

Reasons for Judgment

[1]            
The issue is whether the plaintiff and an authorized representative of
the defendant entered into a binding settlement of this action. The defendant
pled the following in its amended statement of defence:

16.       In further answer to the whole
of the Statement of Claim, the Defendant pleads accord and satisfaction and
says that on or about December 16, 2010, the Plaintiff entered into a
Settlement Agreement with counsel for the Defendant wherein the Plaintiff
agreed to accept the sum of $1,400 in full satisfaction of this claim.

[2]            
This action relates to an incident that occurred on April 7, 1996, when
the plaintiff was eight years old. The plaintiff sustained an injury to her arm
when she fell in the shower of the facility owned by the defendant, which
required medical treatment. The medical treatment was surgery, a hospital stay,
and further medical attention when complications occurred after surgery.

[3]            
The plaintiff is now 24 years old. She started this action on September
10, 2008, six days short of the expiry of the applicable limitation period.

[4]            
The plaintiff, in her action, seeks damages for pain and emotional
upset, loss of enjoyment of life, and further treatment from physicians. She
alleges that the injury that she suffered impaired her ability to earn income,
both past and future, impairment of her capacity to perform housekeeping
duties, both past and future, and out-of-pocket expenses. In summary, she seeks
general damages, special damages, interest, and costs of the action.

[5]            
The defendant is insured by the Municipal Insurance Association whose
in-house counsel, Adrienne Atherton, filed a statement of defence to the
statement of claim. In addition, she issued to the plaintiff a notice to
produce and demand for discovery of documents. All of this was done in a timely
fashion. Ms. Atherton sent these documents to the plaintiff as enclosures in
letters. At the end of these letters, Ms. Atherton wrote “Please do not
hesitate to contact me should you wish to discuss this matter”.

[6]            
In a letter written by Ms. Atherton dated May 29, 2009, in which she
enclosed the notice to produce and the demand for discovery of documents, she
wrote:

I also write further to my May
22, 2009 telephone message to you. I would like to have an opportunity to
discuss this matter with you if possible. As this unfortunate incident occurred
some time ago, my client is having difficulties locating documents that may be
relevant. If you could contact me to discuss some specifics about the incident,
it may assist my client to be able to produce all relevant documents to you.

[7]            
On Friday, June 12, 2009, Ms. Atherton’s legal administrative assistant,
Marina Sen, received a call from the plaintiff. The contents of that
conversation, which are not in dispute, are contained in an email of the same
date from Ms. Sen to Ms. Atherton:

The Plaintiff called today in regards to her documents. The
medical documents are at 7^th Avenue Doctors in Mission. She tried to
obtain a copy for us, but was informed that she would need an authorization and
release form from us before they can be obtained.

She also called to [let us] know
she is not suing for pain [and] suffering. Only for the cost of plastic surgery
to remove the scar on [her] arm that was left from the incident.

[8]            
On June 17 and July 9, 2009, Ms. Atherton left voicemail messages for the
plaintiff seeking information as to the cost of the surgery to remove her scar
and for her documents.

[9]            
As a result of the telephone calls made by Ms. Atherton, the plaintiff
telephoned Ms. Atherton on July 10, 2009. In that telephone conversation, the
plaintiff told Ms. Atherton what happened when she was eight years old and the
nature of her injury. The plaintiff stated that she was aware she was entitled
to claim damages for pain and suffering, but was only interested in receiving
the cost of possible surgery to eliminate the scar, which the plaintiff would
obtain by having her doctor refer her to a plastic surgeon.

[10]        
Ms. Atherton testified that she found the plaintiff articulate and
forthright, and that she had a plan.

[11]        
After the telephone discussion with the plaintiff, Ms. Atherton sent
letters or placed telephone calls to the plaintiff on August 19 and November
26, 2009, on March 29, July 13 and 26, 2010, in which she inquired of the
plaintiff as to whether she had obtained from a medical specialist the estimated
cost of the revision surgery to her wrist. By September 27, 2010, Ms. Atherton
was able to reach the plaintiff by telephone. In that telephone conversation,
the plaintiff stated that she had not obtained an estimate as to the cost of
the surgery. In that same conversation, Ms. Atherton volunteered that she had
another case in which the cost of revision surgery on a child’s face was
$1,400.00. The plaintiff’s comment was that this amount seemed low and that she
would like to talk to her parents. Ms. Atherton stated that she would write a
letter to the plaintiff putting the $1,400.00 as an amount in the form of an
offer. If it was too low then the plaintiff could get an estimate and provide
it to her.

[12]        
Ms. Atherton wrote a letter to the plaintiff dated September 27, 2010 as
follows:

As discussed, I have referred [you] to another file I have in
which I was provided with an estimate for the cost of revision surgery involving
a facial scar on a child. The estimate given to me was $1,400.00. I do not know
though how that child’s facial scar may compare to the scar on your arm.

To expedite the process though, I
offer to settle your action for $1,400.00, inclusive of all costs. In return, I
request that you sign a Consent Dismissal Order dismissing your action against
Whistler, which I will attend to filing at the Court Registry to end the
action. This offer is open until November 3, 2010. This should allow you
sufficient time to discuss this offer with your family and/or seek legal
advice. Should you accept this offer, I will draft and forward to you the
Consent Dismissal Order for signature.

[13]        
On October 28, 2010, Ms. Atherton followed up with a letter to the
plaintiff reminding her of the expiry date of the offer of settlement, and
reminding the plaintiff that if the offer expired:

I will need to press this
litigation forward and will be seeking your List of Documents which was due
back in April 2009.

[14]        
On November 2, 2010, the day before the offer was to expire, the
plaintiff telephoned Ms. Atherton. She stated that she would take the offer so
long as she received legal fees of $700.00. Ms. Atherton reminded the plaintiff
that her offer was “all in”. She explained to the plaintiff that she should not
expect to receive her legal fees back, and that costs are settled as a result
of a tariff and disbursements. Ms. Atherton suggested that the plaintiff
discuss it with her lawyer as to what she wanted under the tariff, and that Ms.
Atherton would consider it. The plaintiff told Ms. Atherton that she did not
want to spend more money for lawyer’s fees and that she would get back to Ms.
Atherton.

[15]        
On December 16, 2010, Ms. Atherton telephoned the plaintiff. The
plaintiff told Ms. Atherton that she had talked to her parents and wished to
accept the $1,400.00 offer. The plaintiff gave Ms. Atherton her email address
so that the consent dismissal order could be sent to her, and her address to
which the settlement cheque could be directed. Ms. Atherton asked the plaintiff
that when she signed the consent dismissal order, if it was more convenient for
the plaintiff, a courier would pick up the signed order. On that date, the
consent dismissal order was emailed to the plaintiff, as well as a summary of
their telephone conversation. Ms. Atherton stated that she would request the
settlement proceeds, which she did in the form of a cheque dated December 17,
2010.

[16]        
On December 22, 2010, Ms. Atherton advised the plaintiff by email that
the cheque was “ready to go”. She further wrote:

By chance have you had a chance
to review and consider the Consent Dismissal Order? Please let me know if you
wish any changes made.

[17]        
She confirms once again that their office is prepared to have a courier
pick up the signed order.

[18]        
On January 10, 2011, Ms. Atherton received a call from Margot MacDonald
stating that the plaintiff had given Ms. MacDonald an authorization to deal
with this matter on the plaintiff’s behalf. On January 13, 2011, Ms. Atherton
received a letter from Ms. MacDonald enclosing the authorization signed by the
plaintiff.

[19]        
On January 17, 2011, Ms. MacDonald telephoned Ms. Atherton telling her of
case law regarding pain and suffering. In that telephone conversation, Ms.
Atherton told Ms. MacDonald that there was a concluded settlement and that she
was waiting for the dismissal order at which time the cheque for $1,400.00
would be sent to the plaintiff. This position was confirmed by email the same
date to Ms. MacDonald. On January 21, 2011, Ms. MacDonald sent Ms. Atherton an
email summarizing a number of cases relating to damages for pain and suffering.
Again, Ms. Atherton advised Ms. MacDonald that she had reviewed her file and she
continued to be of the view that there was a binding settlement. Ms. Atherton
stated to Ms. MacDonald that she planned to bring an application for a
declaration that there was a binding settlement.

[20]        
On February 15, 2011, Ms. Atherton wrote to the plaintiff, with a copy
to Ms. MacDonald, outlining the history of the litigation and all communication
between Ms. Atherton and the plaintiff.

[21]        
The dates and the details of the communication between Ms. Atherton and
the plaintiff are not in dispute.

[22]        
In her testimony, the plaintiff gave details of the accident that
occurred when she was eight years old, which included medical treatment and
post-operative treatment of her arm when she suffered an infection and that her
arm was in a cast for ten weeks. She testified that she missed out swimming in
California when she went on a holiday and she was limited to going on certain
rides when she went to Disneyland. The plaintiff testified that there were no
ongoing problems with her arm except for the two-inch scar. As a 13 or 14-year
old, she was affected by the scar when her contemporaries at school suggested
that she had tried to commit suicide. This is the basis of the plaintiff’s pain
and suffering.

[23]        
She claimed that her parents did not take any legal action about the
accident as her father, at the time of the accident, was applying for a
position with the defendant. Although he did not obtain the position, he did
obtain a position with another municipality.

[24]        
The plaintiff explained that she did not obtain an estimate of surgical
revision because she was working 55 hours per week and had no time to obtain the
estimate. Further, her family physician had retired before he was able to refer
her to a specialist for an estimate to surgically remove the scar.

[25]        
The plaintiff testified that she used the words “Let’s go with it” when
agreeing to the $1,400.00. The plaintiff stated that when she told her father
about the $1,400.00 settlement, he “freaked out”.

[26]        
The plaintiff acknowledged that she received the December 16, 2010
communication, but she had not received some of the other emails as her email
address was incorrect.

[27]        
The plaintiff testified that until she signed the offer and signed the
order, there was no settlement. Her view was the offer was on the table. She
testified that by February 15, 2011, she had no intention of signing the
consent dismissal order.

[28]        
Up until March of 2012, the plaintiff was an employment recruiter. She
stated that in her line of work there was no binding contract until it was in
writing.

Positions

[29]        
The defendant’s position is that on December 16, 2010, it entered into a
settlement agreement with the plaintiff wherein she accepted the $1,400.00 in
full and final settlement of her claim.

[30]        
The plaintiff’s position is that until the consent dismissal order was
signed, there was no settlement of her claim.

The Law

[31]        
Contract law applies to settlement agreements provided no contractual
grounds to set aside the contract exist. Example: mutual mistake, lack of
capacity, duress or fraud: Robertson v. Walwyn Stodgell Cochrane Murray Ltd.,
[1988] 4 W.W.R. 283, 24 B.C.L.R. (2d) 385.

[32]        
Settlement agreements need not be in writing to be enforceable. This was
recognized in Sekhon v. Khangura, 2009 BCSC 670.

[33]        
Even if the oral agreement contemplates that it be reduced to writing,
it is still enforceable: Young et al v. Fleischeuer et al, 2006 BCSC
1318. A party may decide not to pursue certain heads of damages as claimed and
a settlement may be reached without addressing that particular head of damage: Prasad
v. Ho, [1992] B.C.J. No. 643.

[34]        
The fact that the bargaining position between the parties is unequal
does not lead to the settlement being set aside as long as the settlement is
fair and reasonable.

[35]        
Counsel for the defendant raises in its written submissions that the
ground of unconscionability is a ground to set aside the settlement. I need not
address this, as firstly, the plaintiff does not raise this in any reply to the
defendant’s amended statement of defence (no reply was filed), secondly, none
of the evidence of the plaintiff suggests such a defence. She does refer to
case law in her authorities that deals with unconscionability; that is the case
of Smyth v. Szep (1992), 63 B.C.L.R. (2d) 52. This is a case in which
the court set aside a settlement agreement as being unconscionable. As I stated
earlier, she gave no evidence as to this being a defence nor evidence that
established such a defence.

Analysis

[36]        
The plaintiff, in her first conversation with Ms. Atherton’s assistant,
Ms. Sen, stated that all she wished from her claim was sufficient funds to have
revision surgery to her wrist. She stated this again on July 10, 2009. That
position never changed, except when she mentioned her legal fees of $700.00 in
a conversation with Ms. Atherton on November 2, 2010.

[37]        
On May 29, 2009, the defendant disclosed to the plaintiff that no
documents had been located as of that date relating to the accident. After that
date, the plaintiff did not respond to the demand for the production of
documents. All communication between the plaintiff and Ms. Atherton was on
settlement. The focus was obtaining an estimate as to the cost of the scar
revision by a medical specialist.

[38]        
The plaintiff’s evidence that she did not receive certain emails is of
no moment, as the emails were intended as confirmation of conversations between
her and Ms. Atherton. The contents of those conversations have not been
disputed, nor is there any evidence before me that the emails received and not
received did not capture the conversations between Ms. Atherton and the
plaintiff.

[39]        
I also can conclude that there was no mistake as to the terms of the
settlement as discussed between the plaintiff and Ms. Atherton. I cannot conclude
that the plaintiff was mistaken as to the terms of the defendant’s offer.

[40]        
The negotiations of this settlement started on June 12, 2009 and
continued for a further year and a half, during which the plaintiff was
encouraged to seek legal advice and consult with her parents. During this
period, she acknowledged legal advice was available to her, at times from her
aunt, Ms. MacDonald, and from the lawyer who issued the writ and statement of
claim. The plaintiff was encouraged to get an estimate of the cost of the wrist
revision surgery.

[41]        
At no time did the plaintiff state she wanted a settlement for more than
the revision surgery, other than mentioning costs on November 2, 2010. Her
position was that she wanted enough money for the surgery; this never changed.
In the December 16, 2010 conversation with Ms. Atherton, the plaintiff said she
discussed the settlement with her parents (in fact it was her mother with whom
she discussed it). The plaintiff’s evidence was her mother’s reaction was “You can’t
get the costs, you can’t get the costs.”

[42]        
Ms. Atherton acknowledged that she would not have given the plaintiff
the cheque for $1,400.00 without the signed consent dismissal order. I agree
with the defendant that the consent dismissal order was “mechanical” in that it
ended the litigation. The signing of the consent dismissal order by the
plaintiff was well known before she accepted the settlement on December 16,
2010.

[43]        
The plaintiff argues that the words in Ms. Atherton’s email of December
22, 2010, as noted in para. 16 above, is evidence that there was not a
settlement. The settlement was a result of the discussions of the plaintiff and
Ms. Atherton, not the language of the order, whose sole purpose was to dismiss
the plaintiff’s action.

[44]        
The plaintiff was aware that she was entitled to a head of damages for
pain and suffering and other heads of damages and communicated this to Ms.
Atherton.

[45]        
The plaintiff presented a number of cases where people with claims and
who had scars ranged from $10,000.00 to $50,000.00. From the evidence that the
plaintiff gave, the scar was two inches long and that it has not caused any
difficulties in her life other than those to which she testified.

[46]        
Although the negotiations occurred over a long period of time, this was
because the plaintiff’s work required a lot of her time and the obtaining of an
estimate for the removal of the scar was not a priority to her.

[47]        
The plaintiff changed her mind and repudiated the settlement as a result
of the reaction of her father and the involvement of her aunt, Ms. MacDonald.

[48]        
I conclude that on December 16, 2010, the plaintiff entered into a
binding settlement agreement. This action is dismissed with costs awarded to the
defendant upon the basis that the sum of $1,400.00 due to the plaintiff will be
set-off against the defendant’s assessed costs. Costs will be assessed under
Appendix B, Scale B of the Supreme Court Civil Rules.

“H.C. Hyslop J.”

HYSLOP J.