Trustees of USW Forest Industry Health & Welfare Plan No. 1 v. Thandi Date:, 2011 BCPC 277

Citation: Trustees of USW Forest Industry Health & Welfare Plan No. 1 v. Thandi Date: 20111017 2011 BCPC 0277 File No: 0926187 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: TRUSTEES OF THE USW - FOREST INDUSTRY HEALTH AND WELFARE PLAN NO. 1 CLAIMANT AND: TAJINDER SINGH THANDI DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE N.N. PHILLIPS Counsel for the Claimant: A. Nathanson Counsel for the Defendant: E. Bond Place of Hearing: Vancouver , B.C.

Dates of Hearing: October 6 & 7, 2011 Date of Judgment: October 17, 2011 [ 1 ] The Claimant has sued the Defendant alleging breach of contract and seeks to recover short term disability benefit money paid to the Defendant pursuant to a trust. The Defendant opposes the claim brought against him on the basis that the Small Claims Court does not have jurisdiction to hear this case due to the fact the Court would have to construe the terms of a trust, a matter in equity said to be outside of the statutory authority of this Court.

In the alternative, the Defendant argues that if he is obligated to repay any money, the amount owing should be only $7,060.82 rather than the $13,973.28 sum sought by the Claimants. Evidence at Trial [ 2 ] The Claimants are the Trustees of a health and welfare benefit trust known as the USW-Forest Industry Health and Welfare Plan No. 1. For ease of reference, the Claimants will hereinafter be called the “Trustees” and the benefit trust “the Plan”. The Plan was established in 1961 to provide, inter alia, wee kly indemnity benefits to employees who become disabled.

British Columbia Life and Casualty Company (hereinafter “BC Life”) act as agent of the Trustees and administer the Plan. [ 3 ] A copy of the “IWA-Forest Industry Health and Welfare Trust and Plan No. 1, Amended Agreement and Declaration of Trust”, was filed with the Court. This material provides the historical background to the creation of the trust fund and Plan. [ 4 ] The Defendant, Tajinder Thandi (hereinafter “Mr. Thandi”), worked as a labourer at a sawmill in the Lower Mainland for a number of years. On May 5, 2003, Mr.

Thandi was a passenger in a motor vehicle driven by a friend that rolled over causing him injuries. At the time of the accident, Mr. Thandi was on paid vacation from his full-time position with Weyerhauser Company Ltd. where he worked as a “chain puller” with an hourly wage rate of $22.535. Through that work, Mr. Thandi was a “member” as set out in the Plan. [ 5 ] The Plan Text

(1997) Section 6 provides the following regarding Weekly Indemnity Benefits.

6.11 Disabled Member’s Obligation to Reimburse the Trustees (

a) If any act or omission of a Third Party has caused or contributed to, or is alleged to have caused or contributed to, the Disability of a Member, the Disabled Member will: (

i) make a claim, including, if required, the commencement of a legal action, against the Third Party to recover from the Third Party or any insurer for the Third Party a Settlement; (ii) pursue the claim or legal action against the Third Party diligently until such time as a Settlement has been concluded; (iii) execute and deliver to the Trustees: A. a claimant’s agreement in a form specified by the Trustees agreeing to comply with all of the obligations imposed under this subsection 6.11 and assigning to the Trustees the right to initiate or continue a claim against the Third Party if the Disabled Member fails to do so in accordance with subsection 6.11(c); B. an authorization…to release to the Trustees details of any Settlement… C. as assignment to the Trustees, in a form specified by the Trustees, of the proceeds of the Settlement with the Third Party; (iv) provide to the Trustees as soon as he becomes aware that a Settlement has been concluded, full particulars of the Settlement… (v) … (vi) provide to the Trustees, or instruct his lawyer to provide, full particulars of his Legal Expenses; and (vii)as soon as he is in receipt of the monies payable under the Settlement, to pay to the Trustees the Reimbursement Amount. (

b) No Weekly Indemnity Benefits will be payable to a Disabled Member until he has fulfilled the obligations under subsection 6.11(a) (iii). [ 6 ] As a result of injuries sustained in the accident, Mr. Thandi did not return to work. On May 23, 2003, he submitted a “Claim for Employee Short Term Disability Benefits” with BC Life. BC Life asked Mr. Thandi to provide them with an Accident Report and sign a Reimbursement Agreement before receiving benefits. Mr. Thandi signed and returned the agreement on June 6, 2003. The entirety of this document is set out below.

Trustees of the IWA – Forest Industry Health & Welfare Plan No. 1 c/o BC Life and Casualty Company PO Box 24715, SUB-F, Vancouver, BC V5N 5T8 Tel: (604) 419-8080 FAX: (604) 419-8099 Toll Free: 1-888-275-4672 Reimbursement Agreement

Between: THE BOARD OF TRUSTEES of IWA-FOREST INDUSTRY HEALTH & WELFARE PLAN No. 1 AND (fill in member information): GROUP NO: 8942 NAME: Tajinder Singh Thandi DIVISION NO: 118 ADDRESS: 1333 E. 33 rd Avenue Vancouver, BC V5V 3B8

PART 1:

DEFINITIONS PLAN 1 refers to the IWA-Forest Industry Health & Welfare Plan No. 1 BC Life refers to BC Life and Casualty Company, as agent for the Trustees of PLAN 1 . YOU, YOUR, and the MEMBER refer to the member with whom this agreement is made. ACCIDENT includes the incident giving rise to your claim for benefits from PLAN 1. THIRD PARTY includes any other person from whom you may be able to recover damages as a result of your accident.

PART 2: THE CONTRACTUAL ARRANGEMENTS You may have a right to recover damages from a THIRD PARTY as a result of your illness, injury or income loss that arose from an ACCIDENT which occurred on May 5, 2003 . Under the terms of PLAN 1 you are entitled to claim Weekly Indemnity (WI) benefits in respect of some or all of the period you have been absent from work commencing May 10, 2003 . You agree to take all necessary steps to recover from the THIRD PARTY the benefits which PLAN 1 has paid, or will in the future, pay to you.

If you fail to take such steps you agree that BC Life may do so on your behalf, and you hereby assign to BC Life the right to do so in accordance with the terms of PLAN 1. If you are able to recover such benefits from the THIRD PARTY, you must replay PLAN 1, c/o BC Life, in accordance with the terms of PLAN 1. The following is a

summary of the reimbursement formula: Reimbursement Amount = (WI Benefits Paid + Gross Wage Loss Recovery) -- (Lost Wages + Pro-rata Share of Legal Expenses) • WI Benefits Paid is the amount of benefits actually paid to you up to your Settlement Date. • Gross Wage Loss Recovery is the lesser of your Gross Settlement and your Lost Wages. • Lost Wages is calculated by multiplying your regular job rate times 40 hours per week, times the number of weeks you receive WI benefits prior to your Settlement Date. Lost Wages will reflect scheduled increases in your hourly job rate during the disability period.

• The Pro-rata Share of Legal Expenses is your Legal Expenses multiplied by your Gross Wage Loss Recovery divided by your Gross Settlement (to a maximum of 20% of your Gross Wage Loss Recovery). • For greater certainty, Legal Expenses includes legal fees, disbursements and all applicable taxes, including any GST or SST paid to your lawyer. In no event shall the amount allowed for the pro-rata share of Legal Expenses exceed 20% of your Gross Wage Loss Recovery. Disbursements and taxes paid on the Legal Expenses are included in the 20% of Gross Wage Loss Recovery.

REIMBURSEMENT AGREEMENT If you abandon or settle any claim you have against the THIRD PARTY without the written consent of BC Life, your Reimbursement Amount will equal the full amount of benefits received by you. In addition, if you wish BC Life to consider accepting less than full reimbursement of benefits paid, you will instruct any lawyer acting for you to give BC Life a full report of the details of any proposed settlement between you and the THIRD PARTY, for BC Life approval before any settlement is reached.

You hereby authorize and direct anyone (including ICBC) with knowledge of your Accident or any settlement relating to it to release to BC Life the details of any settlement you reach. You agree to provide full details of any settlement to BC Life, and pay the Reimbursement Amount calculated above to BC Life as soon as you receive your settlement payment. You hereby assign to BC Life all of your interest in any amount that is owing to you in respect of the Accident, up to the amount of the Reimbursement Amount calculated above.

In particular, you irrevocably authorize, instruct and direct any lawyer who acts for you to pay BC Life the Reimbursement Amount out of any settlement payments received on your behalf. The foregoing is a

summary of the relevant terms of PLAN 1. In the event of an inconsistency between this form and PLAN 1, PLAN 1 prevails. You may obtain a copy of the relevant terms of PLAN 1 at any time at no charge. DATE: _________________________ _______________________________ ________________________________ BC Life, as agent for the Trustees Member (Authorized Signatory) ________________________________ Witness [ 7 ] Mr. Thandi told the Court he skimmed the Reimbursement Agreement before signing it.

He said he understood the document to mean that if he was able to recover money from the Insurance Corporation of British Columbia (hereinafter “ICBC”) for wage loss which BC Life had covered him for, he would have to reimburse BC Life those amounts. He said he thought he would only have to repay the wage loss amounts he recovered in the motor vehicle accident claim. Mr. Thandi agreed he did not ask anyone at work for an explanation of the terms of the Reimbursement Agreement. [ 8 ] Mr.

Thandi’s claim for short term benefits was approved and he received the benefits to which he was entitled under the Plan from May 10, 2003 to June 3, 2004 totaling $23,347.84. [ 9 ] The Claimants called Peggy Grant as their only witness at trial. Ms Grant is the manager of the short term disability claims

department of BC Life. Ms. Grant testified that when a Third Party accident is involved, BC Life, on behalf of the Trustees, requires the member to complete a Reimbursement Agreement before benefits start. The practice is followed in order to ensure new benefit claimants are aware of their obligations under the Plan and specifically of the repayment requirement. She noted that repayment is pursued to maintain the integrity of the Trust and the money repaid goes right back in to the Trust. [ 10 ] Ms. Grant told the Court that the Reimbursement Agreement did not create any new rights for Mr.

Thandi (beyond the Trust/Plan), however the Plan required the Reimbursement Agreement be completed before benefits would be given in a Third Party situation. Benefits would not be provided to a member who refused to sign the Reimbursement Agreement. [ 11 ] Ms. Grant confirmed Mr. Thandi was approved for short term benefits once the preliminary paperwork was complete. The Defendant received the maximum fifty-two (52) weeks of benefits available under the Trust. [ 12 ] Although there was some confusion about when Mr.

Thandi had retained counsel to assist him in these matters, counsel for the Trustees conceded at the conclusion of the evidence that Mr. Thandi had not yet retained counsel, and thus did not have the benefit of legal advice, at the time he signed the Reimbursement Agreement. A copy of the retainer agreement (dated February 5, 2004) between the Defendant and his counsel, Ms. Bond, was produced. [ 13 ] Mr. Thandi provided the Court with “Pay Detail” reports from Weyerhauser setting out his hours of work for some of the time period when he was in receipt of Plan benefits.

Hand-written notes on those records set out when Mr. Thandi was on vacation, off work due to illness, on lay-off, or when the mill was on strike. Counsel for the Trustees submitted there was no corroborating evidence put before the Court of the strike or lay-off situations. [ 14 ] On March 19, 2004, BC Life wrote to Mr. Thandi’s lawyer stating (amongst other things) that they would appreciate being kept informed of the progress being made toward settlement of the accident claim. On July 17, 2004, BC Life wrote counsel to correct Plan Benefit payment information stating that BC Life had paid Mr.

Thandi a total of $23,347.84 for the period of May 10, 2003 to June 3, 2004. [ 15 ] From time-to-time, BC Life thereafter wrote to the Defendant’s counsel seeking information on the status of the claim settlement. A copy of the Reimbursement Agreement was provided to counsel and notice given of BC Life’s interest in the ICBC claim. On May 10, 2006, counsel wrote to BC Life advising that the ICBC case had been scheduled for trial in January 2007. In a July 2007 reply, BC Life wrote counsel asking about the outcome of the trial. On October 23, 2007, BC Life learned from ICBC that Mr.

Thandi’s MVA claim had been settled in December 2006. [ 16 ] The evidence at trial established that Mr. Thandi’s ICBC claim was settled on December 20, 2006 for $73,150. The Defendant told the Court he settled for the all-inclusive sum in order to avoid the cost and uncertainty of a jury trial in January 2007. Neither the Defendant nor his counsel contacted BC Life prior to settling the claim. The Defendant did not obtain the consent of BC Life prior to settling his ICBC claim, a requirement under the Reimbursement Agreement. [ 17 ] On October 23, 2007, BC Life wrote to Mr.

Thandi to advise they understood his Third Party claim had been settled and that the total amount of Plan benefits he would have to repay was $23,347.84. The letter referred to the fact Mr. Thandi had received short term disability benefits from May 10, 2003 to June 3, 2004 based on the Reimbursement Agreement. Given that Mr. Thandi had not obtained BC Life’s consent prior to settling his ICBC claim, the Claimant initially took the position he was obligated to repay all of the money he had received under the Plan. On November 28, 2008, counsel for the Trustees wrote to Mr.

Thandi’s counsel demanding repayment of $23,347.84 in benefits paid to him under the Plan and pursuant to the Reimbursement Agreement. [ 18 ] On January 26, 2009, counsel for Mr. Thandi wrote to the Trustees’ solicitors asking for an explanation as to how a new reimbursement amount ($13,973.28) had been reached. The evidence at trial established the Claimant had determined this amount based on the formula for repayment set out in the Reimbursement Agreement. Ms.

Grant testified the application of the Reimbursement Agreement formula would always yield the same number as the application of a more complex formula set out in the Plan and that the two formulas would always produce an amount less than the benefits actually paid to the member. [ 19 ] The Defendant declined to repay the $13,973.28 and proposed a lower amount which did not include any wage loss for those time periods when he could not have worked due to a lay-off or strike at the sawmill. Mr.

Thandi testified he did not think it fair for him to have to repay to the Trust money he was unable to make a wage loss claim for against ICBC when the mill was in a lay-off or strike situation. [ 20 ] Although it was suggested at this trial that the $13,973.28 amount was put forward in an effort to foster a settlement in this case, that may not have been the principal reason the lower amount was proposed by the Trustees. The Reimbursement Agreement clearly states that where that document differs from the Plan, it is the language of the Plan which is paramount.

The Plan does not contain a provision obligating a member to repay all of the disability benefits if the member fails to obtain approval from BC Life for a Third Party settlement. In the absence of such language in the Plan, the term in the Reimbursement Agreement to this effect was likely unenforceable against Mr. Thandi. [ 21 ] On February 16, 2009, the solicitors for the Trustees wrote to Mr. Thandi’s lawyer stating the following: …The reimbursement amount is based on

definitions as outlined in the Plan text, a copy of which has been provided to you. In these circumstances, the reimbursement amount is not necessarily dependent on recovery by your client of lost wages. The Trustees have fiduciary duties to all plan members to ensure the proper amounts are repaid to the trust fund and therefore there is no discretion with respect to the principal amount owing. Position of the Parties

[ 22 ] The Defendant submitted that in order to adjudicate this dispute, the Court would be required to construe the terms of the Plan, a creature of trust. Counsel for the Defendant submitted that the Court would have to make a declaration as to the terms of the trust and determine the rights and obligations of the parties based on how the terms were construed.

The Defendant took the position that the Provincial Court does not have the equitable jurisdiction required to interpret the Trust document and thus this Court could not deal with the case. [ 23 ] In the alternative, the Defendant submitted that the Reimbursement Agreement was not a valid contract as between himself and the Trustees as it was entered into without consideration and was unenforceable due to lack of clarity or because it was lacking in essential terms.

The Defendant also submitted the contract was not enforceable due to the lack of privity between himself and the Trustees. [ 24 ] Finally, and in the further alternative, the Defendant submitted that if the Court did take jurisdiction and find the Reimbursement Agreement to be a binding contract between the parties, the Defendant should only be required to pay $7,060 (rather than the $13,900 sought by the Trustees) given the Defendant’s limited recovery of lost wages in the ICBC action. [ 25 ] The Claimant Trustees pursued the $13,973.28 repayment amount at trial and took the position that the obligation to repay was not based on whether a settlement included a wage loss component.

The Reimbursement Amount did not take into account what portion of the settlement, if any, was allocated to wage loss. The Claimant pointed out that while the Third Party settlement amount is one variable in the Reimbursement formula, the settlement amount is taken as a whole and does not parcel out wage loss. Law [ 26 ]

Section 3 of the Small Claims Act [RSBC 1996 Ch. 430] sets out the types of claims the Court may hear. 3

(1) The Provincial Court has jurisdiction in a claim for (

a) debt or damages, (

b) recovery of personal property, (

c) specific performance of an agreement relating to personal property or services, or (

d) relief from opposing claims to personal property if the amount claimed or the value of the personal property or services is equal to or less than an amount that is prescribed by regulation, excluding interest and costs.

(2) The Provincial Court does not have jurisdiction in a claim for libel, slander or malicious prosecution. [ 27 ] In Cimaco Travel v. British Airways, PLC [2002] BCPC 0226, Judge Dhillon reiterated that the Small Claims Court is a statutory court and takes its substantive jurisdiction from the Small Claims Act . She added (@ paragraph 20) that “the Small Claims Court does not have inherent jurisdiction to grant equitable remedies, including declaratory orders…” [ 28 ] In Singh v.

Nicholson [2011] BCSC 449, Justice Gropper was asked to consider whether the parties had reached an agreement for the sale of certain retail items. At paragraph 25, the Court stated: The principles of contract law were canvassed extensively by Madam Justice Dickson in Le Soleil Hotel and Suites Ltd. v. Le Soleil Management Inc. , 2009 BCSC 1303 . Dickson J. stated at paras. 321 - 323 (citations omitted): Courts strive to uphold contractual obligations solemnly and freely undertaken. They do not, however, impose them upon parties who have not reached agreement on all essential terms.

For parties to be bound in a contractual relationship there must be a manifest meeting of the minds. They must express themselves outwardly in a manner that indicates both an intention to be bound and reasonably certain mutually agreed terms. These fundamental principles of contract law enable commercial life to operate in a fair, predictable and efficient manner. They apply whether the purported contract in question is concluded in writing, orally, by conduct, or by a combination thereof.

The key question in all cases is whether an agreement has been reached on all essential terms, regardless of its form. [ 29 ] In Hwang v. Axa Pacific Insurance Co. [2001] BCCA 410 Southin, J.A. stated (@ paragraph 34): It is, in my opinion, a fundamental principle of the common law of general application, that one may not take the benefit of an instrument without also taking its burden. [ 30 ] In Trustees of the B.C. Transit Employees’ Health and Benefit Trust v.

Hamid Shahsavar (Robson Square Registry No. 07- 16749), Judge Dhillon was called upon to determine whether the Defendant was contractually obligated to reimburse the Claimant Trustees income loss he recovered when he settled his Third Party claim for damages. At paragraphs 51-52, the Court noted: I am satisfied on a review of the authorities submitted by the Claimant Trustees that the common law right of subrogation does not apply

to benefits payable under a health and welfare benefits trust: see British Columbia Life & Casualty Co. v. Meek (BCSC), [1999] BCJ No. 980, aff’d [2000] BCJ No. 655 (C.A.). The Trustees are entitled to seek recovery on the basis the reimbursementformula under the Plan and the Reimbursement Agreement signed by Mr. Shahsavar, even if Mr. Shahsavar has not been fullyindemnified for his total income loss. As noted by the Claimant Trustees in their submissions, the beneficiaries of the Plan are employees of the participating employers andtheir eligible dependents. If Mr.

Shahsavar is not required to repay benefits he has received in accordance with the terms of the Plan andthe Reimbursement Agreement, he will have received benefits in excess of his rights and to the detriment of other beneficiaries. TheClaimants as Trustees have a duty to enforce the terms of the Plan and to act impartially among the beneficiaries of the Plan. I acceptthis to be a correct principle.

I find and conclude that the Claimant Trustees are both entitled and obliged to recover payment inaccordance with the parties’ rights and obligations under the Plan and Reimbursement Agreement. [31] In Trustees of the USW – Forest Industry Health And Welfare Plan No. 2 (Robson Square Registry No. 07-18927 an unreporteddecision of June 1, 2010), Judge Gallagher dealt with a very similar case to Mr. Thandi’s involving the same Trust Plan. The decision isinstructive, although the defences advanced in that case were not the ones put forward by Mr. Thandi.

At paragraphs 25 & 27 JudgeGallagher stated: Under the terms of the Plan, Mr. Bhagirath’s repayment obligation is triggered simply by the settlement of his third party claim –recovery of past or future wage loss is not a prerequisite to his repayment obligation. … The reimbursement formula is set out in the Plan and the Reimbursement Agreement. This formula does not take into account whetherany portion of the settlement was for wage loss benefits.

The amount of a member’s settlement is a variable in the calculation of theReimbursement Amount, but it is taken as a whole; the formula does not parcel out what portion of the settlement, if any, is attributableto wage loss. [32] In Engler & Others v. Mattis [2005] BCSC 157, the Plaintiff Trustees required the Defendant to enter into a loan agreementbefore providing wage loss benefits under a Marine Industry Plan.

Justice Rogers held that the words “repay the Plan’s loan from anymonies received by the employee paid as a result of the Disability” were clear and unambiguous and related to the totality of the ThirdParty settlement obtained, not just that portion attributable to wage loss. Analysis [33] Mr. Thandi was not a party to the Plan but he was a beneficiary of the Trust in his employment capacity by which he becameeligible as a member and entitled to certain benefits. Given that the Claimant seeks to enforce the Reimbursement Agreement as aseparate contract between Mr.

Thandi and the Trustees, to be successful at trial the Claimant must establish the existence of a such acontractual relationship. [34] I find the evidence makes clear Mr. Thandi agreed to the terms of the Reimbursement Agreement in that he reviewed and signedthe Agreement in order to obtain weekly indemnity benefits. Although it might not have seemed like he had much choice if he wanted toget the benefits, he did have the option of not signing the document and simply pursuing any wage loss recovery through his ICBCclaim. In consideration for signing the Agreement, the Trustees paid him disability benefits.

The facts establish both privity of contractand consideration. It is significant that Mr. Thandi continued to accept benefit payments from the Trust after he had retained legalcounsel, an approbation of the agreement between the parties. Where funds are paid pursuant to an agreement, it cannot be argued thereis a failure of consideration. [35] The facts in this case make clear that the Reimbursement Agreement was a separate contract entered into between the Trusteesand Mr. Thandi. The Plan required Mr.

Thandi to enter into a repayment agreement in consideration for which he became entitled toreceive short term disability benefits relating to a Third Party claim which otherwise would not have been covered by the Plan. The caselaw provided to the Court supports this conclusion. The rights and obligations of the parties to this dispute are thus to be determined byreference to this contract. Mr.

Thandi acknowledged that when he signed the Reimbursement Agreement he was aware that if herecovered damages from ICBC, BC Life would be looking for repayment in accordance with the Reimbursement Agreement. [36] The next question for the Court is whether the Reimbursement Agreement terms and formula are sufficiently clear so that thecontractual dispute may be resolved within the “four corners” of the contract between the parties. While the Reimbursement Agreementmay be somewhat difficult to read, the intent of the parties is clear.

Although difficult to comprehend on first reading, the formula isclear and capable of being applied without looking outside of the document to the Plan for interpretive assistance. The ReimbursementAgreement is unambiguous in stating that money the member receives from a Third Party is to be repaid. [37] Even had I found the Reimbursement Agreement to be ambiguous, I would not have found it necessary to construe the languageof the Plan Trust document in order to interpret the language of the Reimbursement contract.

The Plan, in my opinion, is merely anextrinsic piece of evidence the Court could look to for assistance with interpreting the Reimbursement Agreement.

[ 38 ] I accept the position put forward by the Defendant (as supported in the authorities provided), that the Plan itself is a Trust document. Although reference must be made to the Plan in order to understand and apply the Reimbursement Agreement, I do not find that takes the matter out of the jurisdiction of this Court. I think this matter is analogous to claims brought in this Court which touch upon disputes relating to real property but do not affect an interest in land per se (something which is outside the Court’s jurisdiction).

For example, this Court can adjudicate disputes relating to entitlement to purchase deposits for real estate and hear home renovation disputes. Those types of claims relate to real estate but they do not affect an interest in land. Similarly, the Court here may look to the Trust document, but the Court does not have to consider any equitable relief or otherwise construe any terms of the Trust.

In so far as it is necessary to make reference to the Plan, it is only in order to properly interpret and apply the Reimbursement Agreement. [ 39 ] Under the Plan, no benefits are payable to a member in the case of a Third Party claim unless the member signs certain documents and agrees to repayment. Upon such agreement, the Trustees then provide short term disability payments to the member, the very situation that happened here. [ 40 ] The Plan Text, the Reimbursement Agreement, and the case law set out above all make clear that Mr.

Thandi’s repayment obligation is not predicated on whether his ICBC settlement included a wage loss component. Neither the formula under the Plan nor the Reimbursement Agreement formula take into account what portion (if any) of the settlement amount was allocated as wage loss.

The Reimbursement Amount is calculated based on a contractual term and the Defendant cannot alter the agreement after he has accepted benefits pursuant to it. [ 41 ] Although the Defendant submitted it would be unfair to order that he repay more settlement money than what he apparently received as wage loss coverage from ICBC, this argument must fail for two reasons. Firstly, having found the Reimbursement Agreement to be an independent contract between the parties, the clear language of the formula is what must be applied to determine the repayment amount.

The contract does not permit the Court to calculate the repayment amount based on what might seem fair relative to the ICBC settlement. And, secondly, even if the law permitted the element of fairness to play a role in determining how much the repayment should be, it must be noted that the Trustees paid Thandi nearly $23,000 and they are only seeking to recover 13,973.28. It is also not unfair when the Trustees seek repayment so to maintain the Trust for the benefit of all members. Result [ 42 ] The Trustees are thus entitled to a payment order against the Defendant in the amount of $13,973.28.

I award the Claimant court ordered interest on this amount from February 1, 2009. I have settled upon the February date for the interest calculation to reflect the fact that until the end of 2008, the Trustees were still pursuing repayment of $23,000. It was not until near the beginning of 2009 that repayment of the lower amount was demanded. [ 43 ] The Trustees are also entitled to their reasonable costs and disbursements, either as agreed upon by the parties or as determined by the Registrar if the parties are unable to reach agreement. _______________________ N. N. Phillips Provincial Court Judge