IVAN VALIC Plaintiff - v. -, 2010 NWTSC 97

Valic v. Workers' Compensation Board, 2010 NWTSC 97 Date: 2010 12 13 Docket: S-1-CV-2008000233 IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES BETWEEN: IVAN VALIC Plaintiff - and - THE WORKERS' COMPENSATION BOARD OF THE NORTHWEST TERRITORIES AND NUNAVUT Defendant Application by plaintiff to set aside a settlement agreement; dismissed. Application by defendant for

summary judgment; granted. Heard at Yellowknife, NT, on November 23, 2010. Reasons filed: December 13, 2010. REASONS FOR JUDGMENT OF THE HONOURABLE JUSTICE J.Z. VERTES The Plaintiff was self-represented. Counsel for the Defendant: G.A. MacKinnon and S. Walsh Valic v. Workers' Compensation Board, 2010 NWTSC 97 Date: 2010 12 13 Docket: S-1-CV-2008000233 IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES BETWEEN: IVAN VALIC Plaintiff - and - THE WORKERS' COMPENSATION BOARD OF THE NORTHWEST TERRITORIES AND NUNAVUT Defendant REASONS FOR JUDGMENT [1] In this action there are two competing applications: (1) a motion by the defendant for

summary judgment dismissing the claim and/or striking the action as disclosing no cause of action; (2) a motion by the plaintiff for an order reopening or setting aside a settlement agreement. For the reasons that follow, the defendant's application is granted and the action is dismissed. Background of this Action: [2] The plaintiff is originally from Croatia but has been living in Canada since 1976. He is a skilled carpenter and has worked in the construction trades. On the hearing of these motions, he represented himself.

It is evident that he has had some professional assistance with this action, however, as reflected by the quality of his pleading. At this hearing, the plaintiff was provided the assistance of a Croatian translater.

It should be noted, however, that throughout the hearing the plaintiff switched between the English and Croatian languages as he pleased. [3] The defendant, now officially known as “The Workers' Safety and Compensation Commission of the Northwest Territories and Nunavut”, has, as in many other jurisdictions, the exclusive authority to determine issues arising out of work-place injuries and questions of compensation for them. This action is merely the latest

chapter in a long history of confrontation and litigation between the plaintiff, who claims to be disabled as a result of a number of work-place injuries, and the defendant. [4] The plaintiff made five separate claims for workers compensation benefits due to injuries received between 1987 and 1997. Not all of his claims were accepted. In particular, the defendant rejected his claims for “chronic pain syndrome”. The plaintiff retained counsel and in 2001 launched proceedings for a judicial review of the defendant's rejection of his claims.

That application was eventually heard by Schuler J. of this court and, in a decision dated December 14, 2005, she remitted the plaintiff's claim for compensation benefits back to the defendant for reconsideration. In her decision, Schuler J. found that the defendant's policy as to how it addresses claims by chronic pain sufferers infringed their equality rights as guaranteed by the [5] As a result of this decision, the parties agreed to mediation as a way of settling the plaintiff's claims for compensation.

On December 3, 2006, after a 4 ½ day mediation, the parties agreed to a full and final settlement of all of the plaintiff's entitlements to compensation for the injuries suffered up to that time. The plaintiff was paid $300,000.00. In addition, the parties agreed to binding arbitration with respect to reimbursement of the plaintiff's out-of-pocket expenses relating to these claims. The plaintiff was represented by counsel throughout the mediation. [6] At the time the parties executed this settlement agreement, the plaintiff had an outstanding appeal before the defendant's Appeal Tribunal.

The agreement was placed before the Appeals Tribunal and, on the written consent of counsel for both parties, the Tribunal dismissed the plaintiff's appeal because apparently the settlement left no outstanding issues. [7] At the subsequent arbitration hearing, the plaintiff submitted a claim in excess of $154,000.00 in out-of-pocket expenses. The arbitrator, after an oral hearing, awarded the sum of $36,871.59 plus interest. The plaintiff applied to this court to set aside the arbitrator's award.

The application was dismissed, the chambers judge finding no reviewable error (the decision is cited as [8] At the time of the 2008 application to set aside the arbitrator's award, and at the 2009 Court of Appeal hearing, the plaintiff represented himself. It is not clear from the record as to when he dismissed his counsel, Mr. James Posynick, who had represented him on the successful 2005 judicial review proceeding as well as at the mediation and arbitration hearings in 2006 and 2007. But sometime in 2009 the plaintiff filed a complaint with the Law Society of the Northwest Territories alleging that Mr.

Posynick did not adequately represent him or protect his interests and forced him into a settlement against his wishes and without sufficient knowledge. The plaintiff also filed complaints against the arbitrator, two lawyers who acted for the defendant, and the director of the legal aid programme. The complaints were investigated on behalf of the Law Society's discipline committee and the investigator found no basis to proceed with any of them.

The Present Action: [9] The plaintiff launched this action on September 18, 2008, after the decision dismissing his application to set aside the arbitrator's award and before the hearing of his appeal of that decision. [10] In his Statement of Claim the plaintiff acknowledges that he agreed to settle his claims for the sum of $300,000.00 as a result of the 2006 mediation session. However, he seeks a declaration that the settlement agreement is null and void because: (

a) he was not given adequate access to a translator; (

b) he was not given an opportunity to adequately consult counsel; and, (

c) he was on medication and was incapable of understanding the nature and effect of the agreement. [11] The plaintiff also alleges that he is disabled and unemployable and therefore entitled to workers’ compensation benefits.

He therefore seeks a declaration that he is entitled to benefits and pecuniary damages for benefits from 1987 in the amount of $10 million as well as punitive and exemplary damages. [12] In its defence, the defendant concedes that the plaintiff was entitled to compensation for a permanent partial disability but that all claims were settled as a result of the agreement signed by the plaintiff.

It further alleges that the agreement is binding since the plaintiff was at all times represented by counsel, that he never requested a translator, that he was an active participant in the mediation process and understood the nature and effect of the agreement, that the plaintiff accepted payment of the $300,000.00 in settlement as stipulated by the agreement, and that the plaintiff continued to follow through with the terms of the agreement by engaging in the subsequent arbitration process. [13] In addition, the defendant pleads the provisions of the Workers Compensation Act, S.N.W.T. 2007, c. 21 , and its antecedents, which provide that the defendant has the exclusive jurisdiction to determine all matters arising under the Act and no action can be brought in respect of those matters.

Summary Judgment Application: [14] I will address all issues under this heading since the primary claim by the defendant, i.e., that the action should be summarily dismissed because of the effect of the settlement agreement, requires a consideration of that agreement and the plaintiff’s claim that it should be set aside as null and void. [15] The defendant’s motion seeks a dismissal on the basis that there is no genuine issue for trial (summary judgment) and as well that the pleading should be struck out since it discloses no cause of action. This is so because, as counsel described it, the Statement of Claim has two components: (

i) a claim that the agreement is void; and (ii) a claim for workers’ compensation benefits. The first component is amenable to

summary judgment due to the validity of the agreement while the second is subject to striking out on jurisdictional grounds. Hence the two modes of relief. [16]

Summary judgment is governed by

Part 12 of the Rules of Court. Rule 176(2) provides that “where the court is satisfied that there is no genuine issue for trial with respect to a claim or defence, the court shall grant

summary judgment accordingly” (emphasis added). [17] Striking out is provided by Rule 129(1)(a)(ii) of the Rules of Court. The court may, at any stage of the proceedings, strike out a pleading on the ground that it discloses no cause of action. No evidence is admissible on this type of application. Defendant’s counsel was careful to emphasize that all evidence filed on this motion was in reference to the

summary judgment relief requested and not to the striking out aspect. [18] These provisions of the Rules of Court are important tools to assist in the effective administration of justice. Both assist in the weeding out of cases which have no chance of success. But, they are distinct remedies and require different approaches. There is, however, nothing that precludes a party from bringing a motion under both rules as alternative grounds of relief. [19] Under Rule 129(1) the essential question is whether it is plain and obvious that the pleadings disclose no cause of action: Hunt v.

Carey Canada Inc., 1990 CanLII 90 (SCC) , [1990] 2 S.C.R. 959. The court must take the facts alleged in the challenged pleading as true. [20] With respect to the plaintiff’s claim to entitlement to workers’ compensation benefits and damages, even if those aspects of his pleading are true, the plaintiff is confronted by the legislative prohibitions on action.

The current Workers’ Compensation Act, enacted on April 1, 2008, provides that no action lies for the recovery of compensation; that all claims for compensation shall be determined pursuant to the Act; and, that the defendant has exclusive jurisdiction to determine all matters and questions arising under the Act, including questions of entitlement and amount of compensation: see ss. 90 and 91. The predecessor legislation, the [21] Therefore, there can be no cause of action with respect to this aspect of the claim. This legislative prohibition is also applicable to the

summary judgment application. [22] A

summary judgment application under

Part 12 of the Rules of Court is based on an assessment of evidence. The court wants to see what evidence the parties have to put before a trial judge. The onus is on the moving party to establish the absence of a genuine issue for trial. The rules, however, also place an evidentiary burden on the responding party who must show that there is a genuine issue for trial. The jurisprudence on this was set out by the Supreme Court of Canada in Canada (Attorney General) v. Lameman, This appeal is from an application for

summary judgment. The

summary judgment rule serves an important purpose in the civil litigation system. It prevents claims or defences that have no chance of success from proceeding to trial. Trying unmeritorious claims imposes a heavy price in terms of time and cost on the parties to the litigation and on the justice system. It is essential to the proper operation of the justice system and beneficial to the parties that claims that have no chance of success be weeded out at an early stage. Conversely, it is essential to justice that claims disclosing real issues that may be successful proceed to trial. For this reason, the bar on a motion for

summary judgment is high. The defendant who seeks

summary dismissal bears the evidentiary burden of showing that there is “no genuine issue of material fact requiring trial”: Guarantee Co. of North America v. Gordon Capital Corp., See also Arctic Environmental Services Ltd. v. Northern Management & Development Ltd., [2000] N.W.T.J. No. 58 (S.C.), at para. 5 ; McMeekin v. Northwest Territories, [2010] N.W.T.J. No. 89 (S.C.), at paras. 15 - 19 [23] In this case, the focus of the defendant’s application is on the settlement agreement executed by the parties on December 3, 2006.

That settlement provided, as stated earlier, for a lump sum payment of $300,000.00 “in full settlement” of all claims “with respect to any accident to today’s date”. The agreement specifically stipulates that the plaintiff was told that it would be better financially for him to take a monthly pension, as opposed to the lump sum payment, but the plaintiff took the payment after receiving legal advice: 16.

Ivan acknowledges that it is the WCB’s position that he would have greater financial security in the future if the $300,000.00 was paid to him as a monthly pension in the amount of $1350 for the remainder of his life as opposed to a lump sum payment. Ivan acknowledges receiving the advice of independent legal counsel on this matter and wishes the entire amount of the settlement be paid to him in a lump sum. [24] The defendant’s evidence is that Mr. Posynick was present throughout the mediation and actively represented the plaintiff’s interests throughout.

In the agreement the plaintiff specifically acknowledged that he had independent legal advice and freely signed the agreement: 17. Ivan will not allege, and expressly waives any right to argue that he cannot release or give up his right to claim compensation or benefits under the Workers’ Compensation Act. This agreement has been made in the presence of legal counsel for both parties.

Ivan expressly acknowledges that he has received independent legal advice with respect to entering into this agreement and further acknowledges that he is freely and voluntarily entering into this agreement. [25] The agreement contains confidentiality clauses and also contains a number of general and specific releases agreed to by the plaintiff: 6 Ivan releases any and all claims or causes of action he may have against the WCB, any past or present officers or employees of the WCB, or any agents or representatives of the WCB howsoever arising, including but not limited to any claims or causes of action arising from relating to any accident or injury that has occurred before the date of this agreement or the handling of his claims arising from any such accidents or injuries. ...

8. In particular, and without restricting the generality of the foregoing, Ivan releases any and all claims or causes of action he may have against the WCB, any officers or employees of the WCB, or any agents or representatives of the WCB arising from accidents (herein called “the Accidents”) occurring on the following dates: a. 5 November 1987 (WCB claim number 87-2540) b. 26 October 1988 (WCB claim number 88-2699) c. 15 October 1991 (WCB claim number 91-2831) d. 9 June 1994 (WCB claim number 94-1514) e. 30 October 1997 (WCB claim number 97-3034) 9.

Ivan releases and agrees not to pursue any claims for compensation or other benefits that may be available pursuant to the Workers’ Compensation Act arising from any accident or injuries to him that have occurred or may have occurred on or before the date of this agreement. 10. In particular, Ivan releases and agrees not to pursue any claims for compensation or other benefits that may be available pursuant to the Workers’ Compensation Act arising from the Accidents. [26] The plaintiff does not deny executing this agreement.

But, in the only affidavit filed on this application by him, the plaintiff asserts simply as follows: 1) I was pressured to enter into the settlement. 2) I was not afforded counsel of choice and felt my counsel did not represent my interests. 3) My Charter Rights were breached throughout the Workers' Compensation Board's proceedings and settlement. 4) The settlement is invalid because the Rules of the Workers' Compensation Board were not followed. [27] The plaintiff offered no evidence to support these bare statements. He did not explain how he was “pressured”.

He did not elaborate on what Charter rights were breached or which rules were not followed. He did not say who was his “counsel of choice”. All he could offer were letters from a workers' compensation advocate in Alberta, dated from 2008 and 2009, in which that individual repeated what the plaintiff told him about the mediation. [28] It became clear, during his oral submissions, that the plaintiff thinks that what he should be getting is a lifetime pension in addition to the lump sum payment of $300,000.00 plus reimbursement of his out-of-pocket expenses.

He claimed that he did not understand the agreement because he was on medication and because of language difficulties. He claimed he was not allowed to sit in on parts of the mediation. [29] The most productive way to approach this issue is to examine the law as to settlement agreements and whether there is any arguable basis on which this one could be set aside.

Validity of the Settlement Agreement: [30] Canadian courts have long recognized that agreements, like contracts of any sort, entered into by sane and competent individuals, will not be set aside, no matter how foolish or improvident such an agreement may appear in hindsight, in the absence of fraud, duress, undue influence, misrepresentation or some other unconscionable conduct. In a similar vein, courts are particularly supportive of agreements that settle litigation. The public interest in the settlement of litigation was noted by the Supreme Court of Canada in Kelvin Energy v.

Lee, The Courts consistently favour the settlement of lawsuits in general. To put it another way, there is an overriding public interest in favour of settlement. This policy promotes the interests of litigants generally by saving them the expense of trial of disputed issues, and it reduces the strain upon an already overburdened provincial Court system. [31] Courts will not hesitate to strike an action that appears to litigate a settled dispute. And, a heavy burden is placed on anyone who wants to set aside a settlement. This was explained by Menzies J. in Malley v.

Red River Valley Mutual Insurance Co., The vast majority of litigation does not proceed to court. In reality, most legal disputes are resolved by way of negotiated agreements between the parties. The enforceability of settlement agreements is essential to the settlement process. As was said in Manko v. Ivonchuk (1991) (para. 15) In Robertson v.

Walwyn Stodgell Cochrane Murray Ltd., 1988 CanLII 188 (BC CA) , [1988] 4 W.W.R. 283 (B.C.C.A.), the last paragraph of the headnote reads as follows: Where parties to litigation concede that their settlement agreement has been made with their knowledge and consent, and where no ground is advanced for setting aside the agreement under general contract principles, such as fraud, duress, lack of capacity or mutual mistake, then the court has no alternative, in the end, but to enforce the agreement... (para. 19) A party seeking to have his settlement in the form of a final release and notice of discontinuance set aside bears the heavy onus of satisfying the court on compelling evidence that, for whatever ground raised, it ought to be granted.

As was stated by the Manitoba Court of Appeal in the decision of Schille v. Lett (2006), 2006 MBCA 151 , 212 Man. R. (2d) 2, 389 W.A.C. 2 at para. 7 : The court is entitled to strike or stay an action, and ought to, when the parties have settled the claim upon which the action is based. See, for example, Mako v. Ivonchuk (1991) 71 Man. R. (2d) 67 (Man. Q.B.). I agree with the defendants that not to strike an action when there is a clear settlement agreement would undermine the settlement process and the strong public policy considerations encouraging settlements.

And, as a final general observation, courts place an emphasis on the benefits of finality in litigation: see Radhakrishnan v. University of Calgary, 2002 ABCA 182 (CanLII) , [2002] A.J. No. 961 (C.A.), at paras. [32] The plaintiff makes a number of assertions in support of his argument that the agreement should be set aside. [33] First, the plaintiff alleges that he was not given an adequate opportunity to consult counsel before signing the agreement. He also asserts that his counsel did not adequately represent him.

The plaintiff offers no particulars to support these allegations. [34] As noted previously, the plaintiff was, at the material time, represented by Mr. James Posynick. The plaintiff expressly acknowledged, in paragraphs 16 and 17 of the settlement agreement, that he received independent legal advice and freely and voluntarily entered into the agreement. Mr. Posynick had been retained through the services of legal aid. But there is no evidence whatsoever to suggest that his sole interest was anything but to represent the plaintiff.

Any suggestions to the contrary were firmly rejected by the Law Society's investigator. [35] Second, the plaintiff alleged that he did not understand what he was signing either because of language difficulties or because of the effect of his medication. Again he offers no specific supporting evidence. [36] With respect to the plaintiff's condition and language facility at the time of the mediation, I refer to comments offered by other participants at the mediation as recounted by the Law Society's investigator.

I was provided with the investigation report concerning the complaints made by the plaintiff to the Law Society. This report, of course, is hearsay. But it can be regarded as reliable considering the circumstances under which the information was obtained and reported. [37] The investigation report records Mr. Posynick's responses to the plaintiff's complaints. Mr. Posynick made inquiries into the plaintiff's ability to understand English and was satisfied that the plaintiff neither had difficulty in providing instructions nor in understanding what he was told.

The plaintiff apparently never complained about a lack of understanding. The plaintiff was never excluded from the mediation. Mr. Posynick read through the agreement with the plaintiff before the plaintiff signed it. The plaintiff never requested a translator. The lawyer who acted as the mediator also confirmed to the Law Society's investigator that the plaintiff actively participated in the process and appeared to understand everything that was going on.

And, I note that the investigator, after meeting with the plaintiff, did not report any apparent language difficulties. [38] With respect to the effect of any medication, the investigation report recounts that Mr. Posynick never saw signs of impairment on the part of the plaintiff. In any event, the general rule is that if a person seeks to set aside a contract allegedly entered into when in an impaired state, that person must take prompt and positive steps to disavow the contract: see Waddams, The Law of Contracts (5th ed.), at p. 478. Here, the plaintiff did not take such prompt steps.

To the contrary, he accepted the lump sum payment and proceeded to arbitration on his out-of-pocket expenses as contemplated by the agreement. He then took steps to have the arbitrator's award judicially reviewed. All of these steps are inconsistent with his claims that he did not know what he was signing. [39] Third, the plaintiff claims he was pressured into signing the agreement. Yet he offers no evidence as to who pressured him or why. I have no doubt that the plaintiff was anxious and frustrated at the length of time it took to resolve his claims. But frustration is not the same as pressure.

There is no evidence of pressure or undue influence being exerted on the plaintiff. [40] Finally, one cannot ignore the effect of the releases contained in the agreement. The nature of a release was explained in Cass, The Law of Releases in Canada (2006), at p. 1: A release is the relinquishment, in whole or in part, of a right or claim. The gist of a complete and final release is that the plaintiff discharges the defendants (and other persons referred to therein) from an action, complaint, claim, indebtedness, and so on.

The intent is to liberate a party once and for all, from any liability or obligation to another party arising out of particular circumstances. [41] In interpreting a release, the written text must be read as a whole and in the context of the circumstances as they existed when the settlement was reached. The context in which the settlement was reached is essential to the

interpretation process: Dumbrell v. Gordon, [42] As submitted by defendant's counsel, the settlement agreement was meant to bring finality to the acrimonious relationship between the plaintiff and defendant arising from the plaintiff's past compensation claims and the way the defendant dealt with them. Both sides received real value for the commitments in the agreement. The plaintiff received money; the defendant got an end to litigation. As counsel put it, the net effect of the settlement agreement was that the plaintiff released every cause of action.

The releases referred to any accident or injury occurring prior to the date of the settlement, any claim for compensation arising therefrom and from the handling of those claims. Those are exactly the things for which damages are sought in the Statement of Claim. [43] I am satisfied that the present Statement of Claim is an attempt by the plaintiff to relitigate issues that have been settled by a valid agreement made by the parties. The defendant is therefore entitled to

summary judgment dismissing the action. Conclusions: [44] The plaintiff's application to reopen or set aside the settlement agreement is dismissed. The defendant's application for

summary judgment is granted and the plaintiff's action is dismissed. I direct defendant's counsel to prepare the formal order for my review. [45] Costs may be spoken to if demanded. J.Z. Vertes J.S.C. Dated this 13th day of December, 2010. The Plaintiff was self-represented: Counsel for the Respondent: G.A. MacKinnon and S. Walsh Docket: S-1-CV-2008000233 IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES BETWEEN: IVAN VALIC Plaintiff - and - THE WORKERS' COMPENSATION BOARD OF THE NORTHWEST TERRITORIES AND NUNAVUT Defendant REASONS FOR JUDGMENT OF THE HONOURABLE JUSTICE J.Z. VERTES