Date: 19980429
Docket: T-3001-94
BETWEEN:
GREG LORING,
Plaintiff,
- and -
HER MAJESTY THE QUEEN,
Defendant.
REASONS FOR ORDER
MCKEOWN, J.
[1] This motion is an excellent example of why a motion for summary judgment should never be heard without the Memorandums of Fact and Law being filed. Many submissions were made without notice; new submissions were even raised in reply.
[2] The Plaintiff moved for summary judgment in accordance with a settlement agreement reached between the parties in respect of this action and for costs.
[3] The issue is whether there was a settlement agreement reached between the parties.
[4] The relevant facts are as follows. The Defendant, by way of Notice of Payment into Court, paid $117,300 into Court on September 26, 1997 in accordance with Form 15 which provides it is "in satisfaction of all the causes of action in respect of which the Plaintiff claims". On February 17, 1998, the Defendant paid an additional $32,700 into Court on the same terms and conditions. The Plaintiff, on March 26, 1998, purports to "accept your offer to settle this action for the sum of $150,000 in accordance with the terms of your notices of payment into Court dated September 26, 1997 and February 17, 1998". Negotiations between the parties commenced in August 1997 or earlier. On February 24, 1998 the Plaintiff sought to settle the lawsuit for $208,800, including costs.
[5] On March 5, 1998, the Defendant offered to settle for $150,000 including costs. The Plaintiff sought a fifth pre-trial conference on the fairness of the offer to settle and on March 10, 1998, the Defendant indicated there was no need for a further pre-trial and that the offer of $150,000 including costs stood. Notwithstanding this clear position of the Defendant, the Plaintiff, on March 26, 1998, attempted to accept the offer to settle by referring back to the notices of payment into Court dated September 26, 1997 and February 17, 1998.
[6] In my view, there are not two parallel negotiations. The "payment in" provisions are designed to promote settlement discussions or the payments can be accepted in accordance with the old Rules 442 to 444 by seeking "payment out". However, if negotiations are going on which make it clear that the Defendant's offer is inclusive of costs, the Plaintiff cannot resort to the payment out Rules to receive amount paid in together with costs. In the facts before me there is no meeting of minds between the parties. A defendant does not have to seek payment out of the monies in Court in order to continue negotiations.
[7] There was no settlement. It was not open to the Plaintiff to avail himself of Rule 442 and following, to obtain payment out in light of the negotiations. The motion for summary judgment is dismissed and I will allow argument on the question of costs on that motion. The Defendant is granted an Order paying out of Court the sum of $150,000 on or after May 5, 1998. The Defendant has offered the Plaintiff the right to accept payment of $150,000 including costs and full settlement of the causes of action and costs in respect of which the Plaintiff claims up to and including May 4, 1998. The trial shall be set down for 5 days as soon as possible after May 5, 1998. The Defendant may withdraw the sums paid into Court on or after May 5, 1998.
[8] The only thing that remains to be dealt with is the question of costs on that motion. The Court orders that in the event that the Plaintiff accepts the Defendant's offer by May 4, 1998, the sum in Court shall be paid out to the Plaintiff without further Order of the Court upon the filing of a consent dismissal order in accordance with my reasons.
(Sgd.) "William P. McKeown"
Judge
Vancouver, British Columbia
April 29, 1998
FEDERAL COURT TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
HEARING DATED: April 27, 1998
COURT NO.: T-3001-94
STYLE OF CAUSE: GREG LORING
v.
HER MAJESTY THE QUEEN
PLACE OF HEARING: Vancouver, BC
REASONS FOR ORDER OF MCKEOWN, J.
dated April 29, 1998
APPEARANCES:
Ms. Louise Mandell for Plaintiff
Ms. Adrienne Mahaffey for Defendant
SOLICITORS OF RECORD:
Mandell, Pinder for Plaintiff
Vancouver, BC
George Thomson for Defendant
Deputy Attorney General
of Canada
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