Burkhardt v. Gawdun et al., (2004) 254 Sask.R. 271 (CA)

• Judge: Cameron, Sherstobitoff and Lane, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: September 28, 2004
• Jurisdiction: Saskatchewan
• Citations: (2004), 254 Sask.R. 271 (CA);2004 SKCA 128

Burkhardt v. Gawdun (2004), 254 Sask.R. 271 (CA);

    336 W.A.C. 271

MLB headnote and full text

Temp. Cite: [2004] Sask.R. TBEd. NO.003

George Gawdun and Saskatchewan Government Insurance (defendant/plaintiff by counterclaim/appellants) v. Stacey Burkhardt (plaintiff/defendant by counterclaim/respondent)

(No. 723; 2004 SKCA 128)

Indexed As: Burkhardt v. Gawdun et al.

Saskatchewan Court of Appeal

Cameron, Sherstobitoff and Lane, JJ.A.

September 28, 2004.

Summary:

The plaintiff sued the defendant for damages suffered in a motor vehicle accident. The defendant admitted liability for the accident, but argued that the plaintiff's claim was precluded by a final release executed by the plaintiff, for which she received $4,500. The plaintiff sought to have the release set aside and added the defendant's insurer as a defendant.

The Saskatchewan Court of Queen's Bench, in a decision reported at 231 Sask.R. 134, rescinded the release. The court allowed the plaintiff's action and assessed her damages. The defendant and the insurer appealed.

The Saskatchewan Court of Appeal allowed the appeal, set aside the judgment below and dismissed the plaintiff's action.

Insurance - Topic 3745

Automobile insurance - Insurers - Settlement agreements - Unconscionability - The plaintiff was injured in a motor vehicle accident - The plaintiff met with a representative of the defendant's insurer and executed a settlement and release (the settlement) - The plaintiff sued the defendant and challenged the settlement's validity - The Saskatchewan Court of Appeal rejected the argument that the settlement was an unconscionable transaction - The court held, inter alia, that the trial judge erred in holding that the insurer misused its position of power in an unconscionable manner to achieve a material advantage - Further, the settlement was not grossly unfair to the plaintiff - A two month old medical report had indicated that the plaintiff's disability was in the past, she suffered no functional restrictions and a full recovery was expected - The plaintiff declined the representative's offer to consult with someone else - The claimant had accepted the settlement monies and spent some of them - The settlement amount was negotiated with the plaintiff making the first offer - The settlement amount was set objectively using the insurer's formula and the plaintiff received what any person with a similar injury would have received.

Practice - Topic 9857

Settlements - Setting aside - Grounds - [See Insurance - Topic 3745 ].

Releases - Topic 3403

Grounds of invalidity - Unconscionability - [See Insurance - Topic 3745 ].

Cases Noticed:

Dolter v. Media House Productions Inc. et al. (2002), 227 Sask.R. 153; 287 W.A.C. 153 (C.A.), refd to. [para. 9].

McCullough v. Hilton (1998), 110 B.C.A.C. 293; 178 W.A.C. 293; 63 B.C.L.R.(3d) 272 (C.A.), refd to. [para. 13].

Smyth v. Szep, [1992] 2 W.W.R. 673; 10 B.C.A.C. 108; 21 W.A.C. 108 (C.A.), refd to. [para. 13].

Counsel:

Robert J. Gibbings, Q.C., for the appellants;

Terry J. Zakreski, for the respondent.

This appeal was heard on September 28, 2004, by Cameron, Sherstobitoff and Lane, JJ.A., of the Saskatchewan Court of Appeal. Sherstobitoff, J.A., delivered the following reasons orally on the same date and released them in writing on October 5, 2004.