As many of our readers will know, Mr. Justice Tom Granger runs a competing litigation update service. He competes rather unfairly though; he circulates recipes, puzzles, jokes and other content, in a shameless effort to induce readers to subscribe to his bulletins. And he’s enjoyed considerable success.
One other way in which Justice Granger competes unfairly with our blawg is that he has immediate access to his own decisions, which he disseminates before they are otherwise available.
(The foregoing is, of course, tongue in cheek. Justice Granger’s mailings are very worthwhile and it is good of him to circulate them.)
Today’s posting is about one of Justice Granger’s recent decisions, Van Duyn v. The Corporation of the County of Lambton et al. The decision has not yet been reported by CanLii.
The case involved a purported settlement of a claim under the Trustee Act, consequent upon fatal injuries suffered by a resident of the North Lambton Rest Home. The plaintiffs included the estate of the deceased and her children and grandchildren (claiming under the FLA). OHIP was also making a subrogated claim.
The defendants delivered a written offer to settle “this proceeding”. The offer provided for payments to all of the plaintiffs.
The FLA claimants and OHIP wrote to counsel for the defendants and purported to accept the offer to settle their claims. The estate of the deceased did not accept the offer made to it though; instead, it made a counter-offer.
The defendants took the position that their offer was not severable and could not be accepted in part by the FLA plaintiffs. Justice Granger agreed. He based his decision on three factors:
- liability had not been admitted;
- the claims of the plaintiffs who had “accepted” the offer were all derivative ones; and
- the wording of the offer to settle (offering to settle “this proceeding”) precluded partial settlement.
So, without the agreement of the estate of the deceased, the offer could not be accepted. This decision reminds us how important it is to draft written settlement offers carefully.