McIsaac v. McIsaac, 2010 BCSC 691

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: McIsaac v. McIsaac, 2010 BCSC 691 Date: 20100429 Docket: 09 1139 Registry: Victoria Between: Lois Keith McIsaac Plaintiff And: Charles Sylvester McIsaac Defendant Before: The Honourable Mr. Justice Wong Oral Reasons for Judgment In Chambers Counsel for Plaintiff: M. H. Zoraik Counsel for Defendant: N. A. Mosky Place and Date of Trial/Hearing: Victoria, B.C. April 29, 2010 Place and Date of Judgment: Victoria, B.C. April 29, 2010 [ 1 ] THE COURT: Judgment. Introduction [ 2 ] Before the court are cross-applications.

The defendant under Rule 18A seeks to dismiss the plaintiff's motor vehicle personal injury claim on the basis of a prior settlement and release between the plaintiff and ICBC. The plaintiff seeks to rescind the settlement on the basis that the bargain struck was unconscionable. [ 3 ] I have concluded the settlement must be enforced. These are my reasons. The Background [ 4 ] On July 26, 2007, the plaintiff was a passenger in a motor vehicle being driven by her husband, the defendant. The defendant lost control of the motor vehicle and a single vehicle motor vehicle accident occurred.

The plaintiff was injured in the accident. [ 5 ] There is evidence that the plaintiff was not wearing her seat belt when the accident occurred. The plaintiff's evidence is that she does not remember whether she was wearing her seat belt. [ 6 ] The plaintiff, now 76 years of age, is a retired person who sustained no wage loss as a consequence of the accident. [ 7 ] The plaintiff was hospitalized for a period of time following the accident, and on July 31, 2007, notice of the accident was given to the defendant's insurer, ICBC.

[8] Craig Reimer, an ICBC adjuster, was assigned to adjust the plaintiff's claim, and upon being notified of the claim,immediately set about making arrangements for the care, treatment, and rehabilitation of the plaintiff's injuries. The plaintiff wasattended to by a rehabilitation specialist, as well as an orthopaedic surgeon, and her own family doctor. [9] In November 2007, following the plaintiff's period of convalescence and rehabilitation, and with reference to the reports ofthe medical professionals involved with the plaintiff's care, Mr.

Reimer raised with the plaintiff the prospect of settling her injury claimarising out of the accident. At that time the plaintiff indicated to Mr. Reimer that she was not yet ready to settle her claim. [10] Approximately one month later Mr. Reimer spoke to the plaintiff again, and she agreed to a meeting with him to discuss thesettlement of her claim. Prior to the meeting, Mr.

Reimer had collected medical evidence pertaining to the plaintiff, includingconsideration of the possibility that the plaintiff's injuries were permanent in nature, and had undertaken legal research regardingquantum of damages relevant to the claim, and received authority from his manager regarding settlement. [11] On December 27, 2007, the plaintiff, accompanied by her brother-in-law, attended at Mr.

Reimer's office, and after discussingthe claim, agreed to settle her tort claim for $21,500, and her future medical rehabilitation benefits claim for $500, in exchange for a fulland final release in respect of both claims. [12] There is no evidence that the plaintiff was under any sort of legal or medical incapacity with respect to her ability to manageher affairs. The plaintiff has two years of post-secondary education, has no difficulty with the English language, and reads as a hobby.

The plaintiff's evidence is that it is her general practice to read documents before signing them. [13] The plaintiff was aware that Mr. Reimer was monitoring her medical progress, and that her medical caregivers were providinginformation about her condition to Mr. Reimer. The plaintiff had been involved in previous personal injury litigation, which resulted inher receiving financial compensation for her injury. The plaintiff knew when she attended Mr.

Reimer's office that the purpose of hermeeting was to discuss the settlement of her claim arising out of the accident. [14] The plaintiff attended the meeting with Mr.

Reimer, accompanied by her brother-in-law, who was permitted to participate inthe meeting, and with whom the plaintiff consulted regarding the appropriateness of the settlement. [15] In December 2007, the plaintiff knew that her medical condition might be permanent, and in settling her claim she would haveno further claim for compensation against the defendant. [16] The plaintiff's medical condition arising out of the accident has remained the same since December 2007, through toSeptember 2009.

The Law and Analysis [17] I agree with defendant's counsel's submission that there are two alternative tests to assess the validity of the settlement. Also,to have a settlement set aside or voided, the insured must have been unfairly induced to accept the settlement or release, and that thesettlement or release must also be grossly unfair or grossly inadequate. Settlement and release of a claim may not be set aside where theparties are not on equal footing if the insurer can demonstrate that the settlement is fair and reasonable. [18] There are two alternative tests to determine the validity of a settlement.

Whether, when the settlement is looked at in the lightof the knowledge of the adjuster at the time the settlement was entered into, the bargain was fair, just and reasonable, and whether thetransaction seen as a whole is not sufficiently divergent from community standards of commercial morality that it should be rescinded. See McCullogh v. Hilton (1998) (BC CA), 63 B.C.L.R. (3d) 272 (b.c.c.a.) and see also Gindis v.

Brisbourne (2000)2000 BCCA 73 , 72 B.C.L.R. (3d) 19 (B.C.C.A.), particularly at paragraphs 42 to 44. [19] A settlement with an unrepresented claimant will not necessarily be invalid simply because all of the symptoms stemmingfrom any injuries have not been fully resolved.

Again, see McCullogh. [20] There is no evidence that the injuries sustained by the plaintiff were, at the time of settlement, any worse than what wasunderstood by the plaintiff and the adjuster, nor is there any evidence that the plaintiff's injuries have become any worse since thesettlement was entered into. [21] Quite apart from any alleged inequality of bargaining power, the plaintiff and the adjuster had a complete picture of theplaintiff's medical condition at the time of the settlement directly from the plaintiff's medical caregivers. [22] Clearly on the evidence, the plaintiff relied on and trusted the ICBC adjuster and their bargaining power were unequal, but theultimate question is whether viewed objectively, the agreement was unconscionable and offended applicable standards of commercialmorality. [23] I am satisfied on the evidence that it cannot be said that the plaintiff was taken advantage of by ICBC.

The plaintiff, uponreceiving the offer to settle at $22,000, could have consulted with a lawyer before accepting the offer, but for reasons of her own chosenot to. [24] Counsel for the plaintiff now submits the adjuster relied on outdated 12 to 18 year case law authorities as guidance on damagequantum range, and did not make any adjustment for interim inflation.

Be that as it may, the amount offered likely also factored in somediscount for contributory negligence by the plaintiff in not being seat belted at the time of the accident. [25] I might consider the amount settled by the parties in this case to be somewhat low, but taking into account all of the outlinedfactors related earlier, I cannot say the bargain struck was grossly unfair and unconscionable. In order to maintain consistency andpredictability in commercial transactions, public policy requires court enforcement of contracts not found to be unconscionable.

Conclusion [ 26 ] Accordingly the defendant's application to dismiss the plaintiff's claim against the defendant and ICBC is granted. [ 27 ] The plaintiff's cross-application to rescind the settlement is dismissed. [ 28 ] I will hear from counsel on the matter of costs. [submissions] [ 29 ] THE COURT: Costs will follow the event. “Wong J.”