The Point of No Return: More on ICBC Settlements, Finality And Consent
As previously discussed (you can click here to read all my archived posts on this topic), a binding ICBC settlement can be reached even before the ‘full and final release’ is signed. An oral contract can be the point of no return. Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, demonstrating that once a lawyer accepts a settlement offer on behalf of a client it likely becomes too late for the client to change their mind.
In last week’s case (Truong v. Marples) the Plaintiff was injured in a motor vehicle collision. She hired a lawyer to advance her personal injury claim. In the course of the lawsuit ICBC’s and the Plaintiff’s lawyer agreed to a $10,000 settlement.
The Plaintiff agreed her lawyer had authority to accept the offer but argued the deal should not be binding as the offer was ambiguous as it should not have disposed of her no-fault benefits claim with ICBC. The Court disagreed finding that a binding settlement was reached. In doing so the Court provided the following reasons:
[20] In terms of ambiguity, I find that there was no ambiguity in the settlement. The settlement was agreed to between Mr. Grewal and Mr. Shane and they both state that there was no ambiguity and agree on what the deal was. Their evidence, which was not shaken at the hearing, was that they reached a settlement of all issues, including those regarding tort and Part 7 benefits.
[21] Mr. Shane and Mr. Grewal had a history of working on the opposite sides of files. It is apparent that the two have developed experience with each other. Mr. Shane’s testimony also indicates that he has a direct working relationship with the Burnaby litigation department of ICBC, and that an “all in” settlement always meant that it included the tort claim and Part 7 benefits. He displayed a sound understanding of Part 7 benefits and how they interact with a person’s private health insurance. He stated that if a settlement did not include Part 7 benefits it was his practice to note that. I accept his evidence on this point.
[22] The Release document sent by ICBC to Mr. Shane supports the settlement asserted by Mr. Grewal and Mr. Shane. The document states that it is a release of all defendants, and ICBC under Part 7 of the Insurance (Vehicle) Regulation. Mr. Shane reviewed this document, obviously found it satisfactory, and passed it on to Ms. Truong for her execution.
[23] I also accept Mr. Shane’s evidence that he always makes sure that his clients understand that the figures being proposed to settle include all potential entitlements they have from their claim which include the tort and Part 7 entitlements. I also accept that he advised Ms. Truong, as per his practice, that prior to confirming any settlement figure with ICBC, that she would need to sign a Release, that this was not optional, or is something that she could refuse to do, and that their claim would be over.
[24] I am not persuaded that the Sharma case is particularly applicable here, given that both counsel involved in the settlement in the instant case agree as to what was settled
[25] Turning then to the question of whether the settlement was unjust and should not be sanctioned. I have considered the various factors identified in the Pastoor case. I am not persuaded that the circumstances justify intervention by the court. Ms. Truong was represented by experienced counsel. Mr. Shane provided her his opinion based on the information that he had at the time. He knew that Ms. Truong had private health insurance, he formed a considered opinion that she had little chance of success on liability and the costs of pursuing that aspect, he had a sound understanding of Part 7 benefits, and he discussed that with Ms. Truong. There was little evidence adduced as to what it would be in the case of Ms. Truong. Mr. Shane in this hearing stated that it could be thousands of dollars. Finally, he also received instructions to accept the offer.
[26] I am of the view that interfering with this settlement would do greater harm to encouraging settlement. It would undermine the role of counsel in relation to a client, in relation to opposing counsel, and in the litigation process.
[27] The issues raised by Ms. Truong are, in my view, related to her relationship with Mr. Shane and not with the defendant. Her remedy does not lie in having the settlement overturned.
I repeat my previous words of caution about settlement instructions. If a lawyer enters into a binding settlement without a client’s consent the client’s remedy is against their lawyer as opposed to the Defendant in the ICBC Claim. In the best interests of everyone involved it is vital that lawyers do not accept an ICBC settlement offer unless they have clear instructions from their clients to do so. A best practice when giving settlement instructions to a lawyer is to do so in writing to help avoid potential complications.