This decision illustrates the importance of ensuring that all
essential terms of a settlement offer are agreed upon by all
parties to an action.
The plaintiff s (Boss) sued the province of British Columbia
alleging that the province had expropriated mineral claims by
enacting certain regulations. Boss sought compensation for the loss
of the claims, and the parties agreed to a settlement of $30
million. Before the province paid out the settlement, it was
determined that an individual, Mr. Beruschi, was the beneficial
owner of some of the claims. The province then circulated a draft
application for "interpleader relief," in which the
province sought to pay the $30 million into court in exchange for
acquiring legal and beneficial title to the claims, leaving Mr.
Beruschi and other interested parties to prove their entitlement to
the settlement funds according to their interests. Ultimately, aft
er some back and forth and proposed revisions to the form of order,
the province and all interested parties except Mr. Beruschi agreed
to the terms of the order sought.
Boss applied for an order directing that a consent order be
entered, arguing that the order sought contained all the essential
terms sought by Mr. Beruschi. In response, Mr. Beruschi took the
position that an agreement on all essential terms had not been
reached. The Court was left to determine whether the alleged
settlement agreement was in fact valid and enforceable.
In determining whether or not a settlement is binding, a court
first asks whether the parties have agreed on all essential terms.
If so, the next question is whether the agreement was
"completed." Completion could involve an exchange of
documents, such as releases or proposed forms of court order. A
party is not discharged from its initial agreement on essential
terms unless it has "demonstrated an unwillingness to be bound
by the agreement by insisting upon terms or conditions which have
not been agreed upon or are not reasonably implied in [the]
In this case, which the Court characterized as
"complex" and not "routine," the Court
concluded that the parties had not reached agreement on all
essential terms and the application was dismissed.
On a similar point, see "Deal or No Deal? The Importance of
Knowing When You Have an Agreement" on page 23.
Canada is a constitutional monarchy, a parliamentary democracy and a federation comprised of ten provinces and three territories. Canada's judiciary is independent of the legislative and executive branches of Government.
The Government of Alberta recently announced a number of policy changes that will impact the Alberta Electricity Market, composed of its generators, transmitters, distributors, retailers, electricity consumers and wholesale electricity market.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).