54 2003 SKQB 117 Q.B. A.D. 2000 No. 202 J.C. S.C. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF SWIFT CURRENT BETWEEN: DARRELL MORVIK APPLICANT (PLAINTIFF) and JACOB (JACK) GOOHSEN RESPONDENT (DEFENDANT) and LESTER MORVIK THIRD PARTY Timothy J. Keene for the applicant (plaintiff) E. F. Anthony Merchant, Q.C. for the respondent (defendant) JUDGMENT McLELLAN J. March 12, 2003 [1] This is an application by the plaintiff for summary judgment pursuant to Rule 184A(1)(a) and/or s. 29 of The Queen’s Bench Act, 1998, S.S. 1998, c. Q-1.01 in accordance with minutes of settlement agreed to by the parties following a pre-trial conference on July 16, 2002. Rule 184A(1)(a) and s. 29 provide as follows: 184A.(1) Where any party to an accepted offer fails to comply with the terms thereof, the other party may apply to the court: (a) for judgment in the terms of the accepted offer .... 29(1) The court shall grant to the parties to an action or matter all remedies to which the parties appear to be entitled with respect to any legal or equitable claims that they have properly brought forward so that: (a) all issues in controversy between the parties are determined as completely and finally as possible; and (b) multiplicity of legal proceedings concerning the issues is avoided. (2) Relief pursuant to subsection (1) may be granted either absolutely or on any terms and conditions that judge considers appropriate. [2] In support of the application the plaintiff filed an affidavit containing the following paragraphs: 2. THAT Pre-trial Settlement Conference in regards to these matters was held at the Judicial Centre in Swift Current before the Honourable Mr. Justice Klebuc on July 16, 2002. As result of the Pre-trial Settlement Conference, Minutes of Settlement were executed between the parties and true copy of the said Minutes of Settlement are attached and marked as Exhibit “A” to this my affidavit. Exhibit “A” has been filed with this Honourable Court. 3. THAT my lawyer, Tim Keene, did receive the first installment of $5,000.00 from the Defendant on July 23, 2002. 4. THAT the remaining $15,000.00 that is to be paid pursuant to the Minutes of Settlement have not been paid to me nor has it been paid to my lawyer. 5. THAT pursuant to paragraph 1.(b) of the Minutes of Settlement, this matter was referred back to Judge Klebuc and Pre-trial Settlement Conference was held on November 5, 2002. 6. THAT require an order of this Honourable Court granting summary judgment in the amount of $15,000.00 plus my costs for this application and costs to be taxed to the date of the Minutes of Settlement (July 16, 2002). [3] The defendant did not file any affidavit material in opposition to the application. The defendant opposes the application solely on the basis that recent amendment to The Queen’s Bench Act, 1998 precludes the plaintiff from referring to the minutes of settlement. [4] The defendant argues that the majority of the plaintiff’s affidavit must be struck by reason of the fact that the averments contravene s. 28.1 of The Queen’s Bench Act, 1998. disagree. Section 28.1 is not meant to apply to the situation before me. Section 28.1 provides: 28.1 Except with the written consent of all parties to an action who participated in settlement pre-trial conference conducted by judge, the following are not admissible as evidence in any action or matter before any court: (a) evidence arising from anything said in the course of the settlement pre-trial conference; (b) anything said in the course of the settlement pre-trial conference; (c) any oral or written admission or communication made in the course of the settlement pre-trial conference. [5] If party to an action is unable to enforce concluded settlement agreement reached during pre-trial conference such result would render the settlement pre-trial process meaningless. The legislation never intended such result. Section 28.1 was enacted to provide litigants entering into pre-trial conference with the security of knowing that all discussions, admissions, concessions and negotiations that take place during pre-trial conference are accorded complete confidentiality unless and until the parties reach an agreement. [6] It is only after all discussions, admissions, disclosures, concessions and negotiations have concluded that settlement agreement is reduced to writing and executed by the parties. That agreement in no way offends the confidentiality required under s. 28.1. [7] agree with the following statements by Dickson J. in Zimmerman v. Zimmerman (1992), 1992 CanLII 8027 (SK QB), 104 Sask. R. 150 at 163 (Q.B.): ... An offer was made by one of the parties and accepted by the other. The resulting agreement should be recognized and enforced by our courts. Otherwise the primary purpose of the pretrial conference is lost. cost-saving and time-saving procedure would then be reduced to meaningless step in the litigation process. adopt the reasoning of Estey, J., in Revelstoke Companies Ltd. v. Moose Jaw et al., 1983 CanLII 2223 (SK QB), [1984] W.W.R. 52; 28 Sask. R. 115, at page 60 W.W.R.: “Settlements of actions have been encouraged in our courts for great many years and it appears to me that the courts should be hesitant in upsetting or rectifying minutes of settlement unless of course there be something in the nature of fraud, incapacity of party, or the minutes of settlement are too vague to enforce or are obviously incomplete.” [8] There is no suggestion by the defendant that there was non-disclosure, misrepresentation, duress or fraud in the execution of the minutes of settlement. There may, in certain circumstances, be exceptions where court will allow reference to be made to discussions, conversations and the like where such allegations are raised. do not have to decide that issue in this case. Nor is there any suggestion that the signatures on the minutes of settlement are not those of the parties and their solicitors. [9] Furthermore, the defendant does not argue that the minutes are unclear or ambiguous. The minutes of settlement provide as follows: MINUTES OF SETTLEMENT 1. The Parties agree to settle this action as follows: a) The Defendant shall pay to the Plaintiff $20,000.00 (twenty thousand dollars) as follows: i) $5,000.00 payable to Anderson Co. in trust for Darrell Morvik on or before July 23, 2002. ii) the balance of $15,000.00 payable to Anderson Co. in trust for Darrell Morvik on or before September 15, 2002. b) In the event the above monies are not paid then this action shall be returned to Pretrial Conference. The Third party agrees to allow consent default judgment be issued against him in the amount of $20,000.00 (twenty thousand dollars) in favour of the defendant Jacob (JACK) Goohsen. However this judgment shall not be entered into until the said $20,000.00 that Jacob (JACK) Goohsen is to pay to Darrell Morvik. Read, agreed to, and signed this July 16, 2002. signed “Darrell Morvik” “Tim Keene” Darrell Morvik signed “Jacob (Jack) Goohsen” “E. F. A. Merchant” Jacob (Jack) Goohsen signed “Lester Morvik” Lester Morvik [10] Clearly the enforceability of the settlement agreement can be determined by reading and interpreting its terms. [11] The defendant was to pay the plaintiff $20,000.00 by paying $5,000.00 on or before July 23, 2002 and the balance on or before September 25, 2002. The matter was returned to pre-trial conference before Klebuc J. on November 5, 2002. The defendant does not allege that the settlement was amended or altered at that time. Nor does he suggest that the balance of $15,000.00 does not remain owing. [12] Once an agreement has been finalized and executed by the parties there is no further requirement for such confidentiality with respect to the concluded agreement. If the parties had not reached settlement agreement any reference to such discussions, admissions, disclosures, concessions, negotiations or evidence arising from any such discussion in any subsequent proceeding would be prohibited. [13] The plaintiff is entitled to rely on the minutes of settlement and must be permitted to refer to the minutes in his affidavit. The affidavit makes no mention of anything said during the pre-trial conference nor of any evidence arising from anything said. There is no reference to any oral or written admission or conversation made in the course of the settlement pre-trial conference. He is also entitled to refer to the matters occurring subsequent to the execution of the minutes in order to establish non-compliance with the minutes. [14] In the result the applicant is entitled to enter judgment for $15,000.00 together with the costs of this application.
An application for summary judgment pursuant to Queen's Bench Rule 184(1)(a) and/or Queen's Bench Act s.29 in accordance with the minutes of settlement agreed to follow the pre-trial conference. The defendant did not file affidavit evidence but opposed the application solely on the basis that recent amendments to the Queen's Bench Act precludes reference to minutes of settlement. HELD: The plaintiff was entitled to enter judgment for $15,000 plus costs of this application. A settlement agreement reduced to writing in no way offends the confidentiality required under s.28.1. The plaintiff is entitled to rely on the minutes of settlement and must be permitted to refer to them in his affidavit. Section 28.1 is not meant to apply to this situation. If a party to an action is unable to enforce a concluded settlement, the pre-trial process becomes meaningless. The legislation never intended such a result. There was no suggestion that there was non-disclosure, misrepresentation, duress or fraud in the execution of the minutes of settlement. Nor was it suggested the minutes were unclear or ambiguous. The defendant did not allege the settlement was amended or altered or that the balance of $15,000 does not remain owing.