Wang v Xu, 2014 ABQB 691

Court of Queen ’ s Bench of Alberta Citation: Wang v Xu, 2014 ABQB 691 Date: 20141223 Docket: 4803 141898 Registry: Edmonton Between: Nancy Yiwei Wang Plaintiff/Applicant - and - Shuo Xu Defendant/Respondent _______________________________________________________ Reasons for Judgment of the Honourable Mr.

Justice Donald Lee _______________________________________________________ Background [ 1 ] The Applicant wife seeks an order declaring that the parties have a binding settlement agreement of all outstanding matrimonial property and child support issues in this action, and has asked the court to issue a judgment in accordance with that settlement agreement. The husband appears on his own behalf and has filed letters and affidavits in response opposing his wife’s

application, and he seeks to have this matter down for trial. I am the Case Management Judge appointed in this matter. Facts [ 2 ] These parties were married in China in June 1986. They have one child presently age 22 in attendance at the University of Alberta. The parties separated in July 2007. They are both professional engineers who have been working in Alberta since coming to Canada since 1989 as professional engineers. [ 3 ] The Statement of Claim in this matter was filed and served but the wife in April 2007, and the proceedings have been ongoing since 2007.

The husband was represented by counsel early on in the proceedings, and then became a self-represented litigant until he retained Ms. Maureen Murdoch in November 2012. Ms. Murdoch ceased to act in April 2014. [ 4 ] There were ongoing negotiations between counsel from January 2013 until approximately April 2014, which negotiations addressed various issues including: a. Claims for ongoing and retroactive child support. b. Valuation of matrimonial property. c. Exemptions. d. Equalization payment. [ 5 ] By correspondence in February 2014 counsel for the wife responded to a settlement proposal communicated by Ms.

Murdoch, and draft Minutes of Settlement were forward to Ms. Murdoch. Only two outstanding issues were identified at that time: 1. The actual amount of the equalization payment, being the difference between $311,875.00 sought by the husband and $300,000.00 offered by the Wife; 2. Whether the equalization payment would be by cash, or partially cash and partially by RRSP transfer. [ 6 ] The husband communicated directly to counsel for the wife on March 30, 2014 addressing the draft Minutes of Settlement, even though Ms. Murdoch had not ceased to act at that time. Ms.

Murdoch did file a Notice of Withdrawal of Lawyer of Record on April 7, 2014 and from that point thereon counsel for the wife has dealt directly with the husband. [ 7 ] The husband’s March 30, 2014 letter identified various items of concern which had previously been addressed through the negotiation process.

He stated in his letter that “it is better to take this number that Lawyer Murdoch has calculated out the final “Equalization Payment” as $311,875.00 for the cash payment, and have reasonable Minutes of Settlement”. [ 8 ] It appears that the Matrimonial Property Statement in which the husband’s equalization payment was calculated was prepared by the husband himself and forwarded on by Ms.

Murdoch. [ 9 ] By email letter dated May 7, 2014, counsel for the wife communicated that she accepted the husband’s offer of $311,875.00 by cash payment of the full amount, without any portion by RRSP transfer. [ 10 ] The husband responded on May 12, 2014 by an email, again identifying matters that had been concluded previously.

The wife’s counsel responded on May 22, 2014 by providing written Minutes of Settlement reflecting the agreement as they saw it. [ 11 ] On or about May 21, 2014 the husband then advised that his current engineering contract position had ended, and he suggested that he was considering claiming spousal support. [ 12 ] The husband has refused to sign the Minutes of Settlement and does not acknowledge that there ever was an agreement. Issue [ 13 ] Did the parties ever reach a binding agreement?

Analysis [ 14 ] It is quite clear that the husband has difficulty expressing himself in English, even though he has worked in Canada as an Engineer since 1989. The husband advises that he relies significantly on interpreters to assist him in understanding and communicating in English. It is also apparent in these proceedings that there is a considerable amount of matrimonial property that these parties have accumulated in Canada.

There was extensive negotiation between the parties conducted through their legal counsel, and after counsel ceased to act for the husband, between he and the wife’s lawyer. [ 15 ] Two key pieces of correspondence between counsel in this matter in my analysis are the letter dated October 3, 2013 from the wife’s counsel Mr. Peddie to Ms. Murdoch the husband’s counsel, which is marked as

Schedule A in these Reasons; and Ms. Murdoch’s response in a letter dated October 30, 2013, which is marked as

Schedule B to these Reasons. [ 16 ] The letter of October 30, 2013 from Ms. Murdoch says that the husband’s position is as follows:

1. “My client will accept the sum of $311,875.00 in full and final satisfaction of all party claims, retroactive support and occupationalclaims. The Funds must be paid in cash and not RRSPs.” 2. “My client will deal with Grace directly concerning future medical school costs.” [17] The October 30, 2013 letter from the husband’s then lawyer referenced a matrimonial property statement setting out the basisfor the calculation of the equalization payment, which is attached to these Reasons as

Schedule B. [18] The husband then on March 30, 2014 writes directly to Mr. Peddie stating at the beginning of his letter: It takes over years to get the “Minutes of Settlement” between your client and me. At here, I thank you and Lawyer Murdoch for theseworks. Although this document is not perfect, it presents general balance sheets corresponding to the existing financial information.After review all of your letters, I make the following comments for your references: ...

After reviewing the Minutes of Settlement for a number of pages the husband concludes by saying “therefore it is better to take thisnumber that lawyer Murdoch has calculated out the “final equalization payment” is “$311,875.00 with a cash payment, and have areasonable minute of settlement.” The husband then concludes the letter of March 30, 2014 to Mr. Peddie as “Regards Cliff” and thisletter is attached as

Schedule C to these Reasons. [19] Mr. Peddie’s response attached as

Schedule D to these Reasons unequivocally accepts the husband’s proposal: “Nancy isprepared to make the equalization payment by way of a cash payment of $311,875.00 without there being any RRSP transfer”. DraftMinutes of Settlement were then provided as part of this email acceptance to reflect the terms of the settled terms by counsel for the wifeto the husband. [20] By my understanding of these facts in this case, the lawyers negotiated on behalf of their respective clients, and then theyexchanged offers in October 2013.

The only remaining issue from October 2013 was to be the amount of the equalization payment“$300.000.00 offered by the wife versus $311,875.00 demanded by he husband, and whether this amount would be paid by cash, orpartially by cash and partially by RRSP transfer. Just prior to Ms.

Murdoch ceasing to act at the end of March 2014, the husband writesdirectly to the counsel for the wife and says that the final equalization payment of $311,875.00 cash is acceptable, which in turn isaccepted by the wife through an email on May 7, 2014. [21] Loewen v Loewen [2001] AJ No. 727; 2001 ABQB 467 was a case that involved a situation where the consent [to payspousal support was even more fleeting than the present matter because it was based on the terms of the draft settlement agreementbetween the parties arrived at by the lawyers, and was never signed or specifically agreed to by the husband [although it was included ina Family Division Provincial Court joint Consent Order with respect to access].

Notwithstanding this, I still enforced the husband’sobligation to pay $500.00 a month in spousal support based on the agreement reached between counsel outside of Court. In Loewen, Idiscussed why Counsel can bind a client to a settlement, and I believe that reasoning applies here to bind the husband to the offer Ms.Murdoch, his lawyer, made to counsel for his wife, that subsequently both parties including the husband himself after Ms. Murdochceased to act agreed to.

I stated in Loewen as follows at paragraph 22 to 26: 22 With respect to the issue raised by the husband’s counsel that the husband accepted nor would have accepted a reduction in hisaccess from what he a such acceptance of this reduction in access by his lawyer was beyond the I scope of authority, I refer to Scherer v.Paletta, (ON CA), [1966] 2 O.R. 524 [C.A.].

There the Ontario Court of Appeal held that the relationship of a solicitorto his client is a general one of agent to principal and, although the authority of the solicitor arises from his retainer and is subject to anyqualification set out therein, any such limitation of authority does not affect an opposite party with whom the client is engaged inlitigation unless that limitation of authority is communicated to such opposite party.

The solicitor is the client’s authorized agent in allmatters that may reasonably be expected to arise for decision in the proceedings for which he has been retained, including thecompromise of such proceedings.

Accordingly, where the client is under no legal disability, and whether or not as between the client andhis solicitors themselves the client’s instructions to settle a pending action are qualified, the Court will, in practice, where there is nodispute as to the existence of a retainer, enforce against the client a settlement arrived at by the acceptance by the opposite party’ssolicitor of the client’s solicitor’s unqualified offer of settlement. 23 In coming to this conclusion the Court relied on Bowstead on Agency, 12th ed., stating as follows: - The question for determination is whether the defendant is entitled to enforce by way of a judgment the settlement agreed to by counselfor the plaintiff, in view of the dispute as to the limitation of the retainer of which he was unaware.

The issue as to whether the retainerwas or was not qualified is not before this Court for consideration. Bowstead on Agency, 12th ed., pp. 65-6, reviews the scope of the implied authority of a solicitor and counsel and states that therelationship of a solicitor to his client is in general one of agent to principal. The authority of a solicitor arises from his retainer and as far as his client is concerned it is confined to transacting the business to whichthe retainer extends and is subject to the restrictions set out in the retainer.

The same situation, however, does not exist with respect toothers with whom the solicitor may deal. The authority of a solicitor to compromise may be implied from a retainer to conduct litigationunless a limitation of authority is communicated to the opposite party. A client, having retained a solicitor in a particular matter, holdsthat solicitor out as his agent to conduct the matter in which the solicitor is retained.

In general, the solicitor is the client’s authorizedagent in all matters that may reasonably be expected to arise for decision in the particular proceedings for which he has been retained.Where a principal gives an agent general authority to conduct any business on his behalf, he is bound as regards third persons by everyact done by the agent which is incidental to the ordinary course of such business or which falls within the apparent scope of the agent’sauthority.

As between principal and agent, the authority may be limited by agreement or special instructions but as regards third partiesthe authority which the agent has is that which he is reasonably believed to have, having regard to all the circumstances, and which isreasonably to be gathered from the nature of his employment and duties. The scope of authority is, therefore, largely governed by theclass of agent employed provided that he is acting within the limit of his ordinary avocation or by relation of the agent to the principal orby the customs of the particular trade or profession.

A solicitor whose retainer is established in the particular proceedings may bind his client by a compromise of these proceedings unless his client has limited his authority and the opposing side has knowledge of the limitation, subject always to the discretionary power of the Court, if its intervention by the making of an order is required, to inquire into the circumstances and grant or withhold its intervention if it sees fit; and, subject also to the disability of the client.

It follows accordingly, that while a solicitor or counsel may have apparent authority to bind and contract his client to a particular compromise, neither solicitor nor counsel have power to bind the Court to act in a particular way, so that, if the compromise is one that involves the Court in making an order, the want of authority may be brought to the notice of the Court at any time before the grant of its intervention is perfected and the Court may refuse to permit the order to be perfected.

If, however, the parties are of full age and capacity, the Court, in practice, where there is no dispute as to the fact that a retainer exists, and no dispute as to the fact that a retainer exists, and no dispute as to the terms agreed upon between the solicitors, does not embark upon any inquiry as to the limitation of authority imposed by the client upon the solicitor.

Conclusion [ 22 ] I conclude based on this series of events that the wife has a binding agreement with the husband, notwithstanding the husband’s position presently that there was never an agreement. [ 23 ] The husband’s present position is outlined in a letter that he forwarded to the Court on September 12, 2014, which the Court allowed him to use as his oral submissions in argument, and which is marked as

Schedule E to these Reasons. [ 24 ] As I understand the husband’s September 12, 2014 submissions, the husband focuses on the number of days and months that pass between the October 2013 offer by Ms. Murdoch on his behalf, and the eventual 2014 agreement that I conclude was reached. The husband’s position seems to be that given the events that took place during that time period between October 2013 and March/April 2014, there has never been an actual agreement.

Furthermore the husband’s present position that since his work contract was terminated on March 14, 2014, he needs to claim spousal support, and that he wants a trial on the matrimonial property issues since the parties never reached an agreement. [ 25 ] In view of the husband’s apparent difficulty in communicating in English, the Court offered to him another 30 day period from the date of the hearing of this matter on September 12, 2014 to provide the Court with further submissions in writing.

Although this offer was declined by the husband who asked the Court to make its decision based on the materials on September 12, 2014, the husband nevertheless provided another document dated September 13, 2014 to the Court supplementing the September 12, 2014 information he had supplied with the Court earlier. [ 26 ] This September 13, 2014 letter from the husband is marked as

Schedule F to these Reasons. It does not in my opinion contain anything additional of significance to what already has been submitted except for the possible exception that the husband suggested that Mr. Peddie in his letter of February 21, 2014 rejected Ms. Murdoch’s October 30, 2013 proposal in her equalization payment calculation sheet. Even if this was the case, I conclude that negotiations were still ongoing after February 21, 2014 which is obvious from the written exchanges between the parties.

Therefore it was always open for either the husband as he did on March 30, 2014 to restate his intent to accept the $311,875.00 cash equalization pay, and for Mr.

Peddie on behalf the wife to accept that offer as he did unconditionally on May 7, 2014. [ 27 ] I conclude that the parties reached a binding agreement in this matter as a result of counsel’s letters of October 3 and October 30, 2013, which was ratified by the husband himself on March 30, 2014 and by the wife’s counsel on May 7, 2014. [ 28 ] Although the husband’s response to that email dated May 12, 2014 expresses some confusion, I nevertheless conclude that this May 12, 2014 response from the husband marked as

Schedule G does not undo what the parties had clearly agreed to earlier. Similarly the May 22, 2014 letter (marked as

Schedule I to the Reasons) to the husband from the wife’s counsel simply reiterates what the parties had previously already agreed to by virtue of the husband’s March 30, 2014 letter written directly to the wife’s counsel, and the email acceptance dated May 7, 2014 from the wife’s counsel to the husband. [ 29 ] Accordingly there is a declaration that the parties have a binding settlement agreement of all outstanding matrimonial property and child support issues, and there will be a judgment issued in accordance with that settlement agreement. Heard on the 12 th day of September, 2014. Dated at the City of Edmonton, Alberta this 23 rd day of December, 2014.

Donald Lee J.C.Q.B.A. Appearances: Kevin I. Peddie West Edmonton Law for the Plaintiff Shuo Xu Self-Represented Litigant "The Schedules have been omitted from the electronic form of the judgment."