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• August 26 , 2016
THE LAWYERS WEEKLY
News
Contents
News
Liberals taking heat over SCC
judge selection ideas
1
Justice minister sees system as
still ‘fixable’
1
Letter didn’t imply liability, court
says
2
New buffer in place between rock
and hard place
3
Free women’s legal clinic an
instant hit
4
Hatt sees group legacy as a
greener world
5
Privacy body eyes consent law,
mulls changes
11
Focus
Real Property
Future imperfect
13
Flaws show up in consumer
protection legislation
14
Some municipal websites not up
to speed
15
Cooling down Vancouver’s red hot
market
16
Constitutional Law
White collar minimums
17
Accommodation requests must
be carefully considered
18
Business & Careers
Don’t let clients play the waiting
game
23
Trend of multiple monitors
continues to grow
24
Complicated tax system makes
reform difficult
26
24
21
19
15
4
CAREERS
CLASSIFIED ADS
DIGEST
LAWDITTIES
NAMES IN THE NEWS
Settlement letter didn’t imply
liability, court of appeal rules
Jillian Kestler-D’Amours
A recent Court of Appeal of British Columbia ruling on whether
settlement negotiations can be
considered an acknowledgement of liability has reaffirmed
the importance of labelling all
settlement communications,
according to experts in the field
of civil litigation.
The central issue raised in
Trombley v. Pannu 2016 BCCA
324 was whether an insurer
investigating a slip and fall incident had admitted liability in
letters sent to the plaintiff to
discuss a settlement, even though
these letters were marked “without prejudice.”
An acknowledgement of liability would have triggered a provision in the two-year statute of
limitations in B.C. and given the
plaintiff more time to file a claim,
explained David Outerbridge, a
lawyer at Torys LLP.
“What struck me the most was
that what seemed to me to be a
fairly obvious without prejudice
settlement discussion might
ever be thought of as being an
admission of liability,” Outerbridge said.
According to the facts of the
case, John Trombley slipped and
fell on the stairs outside the property he rented from the defendants, landlords Gurnake Singh
Pannu and Ranjit Kaur Pannu, in
July 2012.
In August 2013, Trombley’s
lawyer notified the defendants
that he would be pursuing a claim
for damages against them and
about a month later, their insurance adjuster wrote to Trombley
to inform him that she had begun
an investigation into the matter.
After seven months spent looking into the claim, the adjuster
wrote a “without prejudice” letter
to the appellant’s counsel to discuss a settlement and notifying
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What struck me the
most was that what
seemed to me to be a
fairly obvious without
prejudice settlement
discussion might ever
be thought of as being
an admission of liability.
If the case had been
decided any other way,
it would inject a lot
more uncertainty into
things with respect to
limitation periods.
Barry Cox
Boghosian + Allen LLP
David Outerbridge
Torys LLP
them that the two-year limitation
period was nearing its expiration.
But those discussions never
took place and Trombley filed a
notice of civil claim three weeks
after the limitation period
expired. Trombley’s lawyer
argued that the letter from the
insurer was an acknowledgement
of some liability, thus freezing the
limitation period.
The Court of Appeal dismissed
the plaintiff ’s appeal, agreeing
with the Supreme Court of British Columbia’s previous ruling
that the letters did not constitute
an acknowledgement of liability.
“While an invitation to engage
in settlement discussions may be
an acknowledgment of the claimant’s cause of action, it does not
follow in every case that it is
impliedly an acknowledgment of
some liability,” the Court of
Appeal wrote in its decision.
The court referenced a Supreme
Court of Canada ruling [Ryan v.
Moore 2005 SCC 38], which
established a test to determine
whether words or actions can be
interpreted as an acknowledgement of liability.
In other words, communications can be judged as acknow-
ledging liability if “a reasonable
person looking at this [would]
recognize it as an acknowledgement of liability,” explained Barry
Cox, a civil litigation expert at
Boghosian + Allen LLP.
Cox said a ruling in favour of
the plaintiff in Trombley would
have made defendants in future
cases wary since a letter discussing settlement terms before a
claim is issued could, in effect,
“be used against you in the event
the limitation period is ultimately missed.”
“If the case had been decided any
other way, it would inject a lot more
uncertainty into things with respect
to limitation periods,” Cox said.
Michael Dew, a lawyer at Jenkins Marzban Logan LLP, said
the most interesting issue raised
by the case was one that the court
did not address: whether a party
can rely on without prejudice
communications to prove an
extension of the limitation period.
Different courts have come to
different decisions in this regard,
Dew said, and the debate “is still
up in the air.”
In this case, the defendants
may have been sufficiently confident in the content of the letters
that they did not feel the need to
get into the admissibility argument, Dew explained.
Otherwise, Dew said they could
have relied on Farrell v. Tisdale
1987 B.C.J. No. 1652 and Canada
(Attorney General) v. Forsberg
[1996] B.C.J. No. 2659 to argue
the communication could not be
shown to the court “because it’s a
without prejudice communication, which is covered by settlement privilege and therefore is
not admissible for any purpose.”
Ultimately, the trial judge and
court of appeal judges only examined the letters’ contents.
“It’s really just a question of
looking at the content of the
statement that was made by the
defendants and then asking
whether that is sufficiently convincing to constitute an admission of some liability,” Dew said.
Shantona Chaudhury, a lawyer
at Pape Barristers, said the court’s
decision protects the ability of
defendants to settle claims without acknowledging that they’ve
done anything wrong. This is
especially important in the insurance industry, she said.
“It would be pretty drastic if the
rule was, the second you start
talking about settlement, the limitation period no longer runs. No
one would talk about settlement,
and settlement is something that
the courts try to encourage,”
Chaudhury said.
Corrections
In Legal woes taking toll, report
says on pages 1-10 of the Aug.
19, 2016 edition of The Lawyers Weekly the acronym for
the Canadian Forum on Civil
Justice was incorrectly transcribed. The correct abbreviation is CFCJ.
In Face in crowd takes on new,
more sinister meaning on
page 5 of the Aug. 12, 2016
edition of The Lawyers
Weekly, Regan Morris was
incorrectly quoted. His correct quote is, “Facial recognition technology has the potential to erode the ability to
remain anonymous in public
places.”