Index

August 5 , 2021

Releases of Claims


June 7 , 2021

Language Used Still Matters


May 17 , 2021

Serving Uncooperative People


April 15 , 2021

Death and After-Life of Contingency Agreements


February 22 , 2021

Legal Analysis


February 2 , 2021

Costs Clarified at Last


January 4 , 2021

Urgent!


December 10, 2020

Traps and Confusion in Service Times


November 24, 2020

Don't Cut Corners


October 2 , 2020

Consent Orders


August 4 , 2020

Electronic Hearings


July 21, 2020

Ceasing to Act


June 29, 2020

Writing Skills


June 29, 2020

Keeping Up With the Law


June 22, 2020

Assets as a Test for Security for Costs


June 19, 2020

What is This Case About?


June 11, 2020

Cross-Examining Child Witnesses


May 20 , 2020

Formal Offers


May 13 , 2020

Vexatious or Self-Represented Litigants


January 7, 2020

G.S.T. and Costs


December 20 , 2019

Electronically Navigating the
Handbook


October 7 , 2019

Questioning is a Bad Word


July 29 , 2019

Dismissal for Delay


May 7 , 2019

Rule 4.31 Fallacies


March 18 , 2019

More Dangers in Oral Fee Agreements


February 11 , 2019

Weir-Jones Decisions


January 9 , 2019

Discouraging Settlements


November 30, 2018

European Court Helps You Twice?


November 23 , 2018

Courts Overruling Tribunals


November 16 , 2018

New Evidence on Appeal


October 30 , 2018

Schedule C's Role


July 17 , 2018

Loopholes in Enforcing Settlements


May 7 , 2018

Enforcement of Procedure Rules


April 16, 2018

Limping Lawsuits are Often
Doomed


April 3 , 2018

Court of Appeal Tips for
Summary Decisions


March 19, 2018

Serious Dangers in Chambers
Applications


February 13 , 2018

Court Backlog


December 18 , 2017

Lowering the Status of Courts


September 15 , 2017

Access to Court Decisions


July 4 , 2017

Strictissimi Juris


June 14 , 2017

Why Don't Your Clients Settle?


June 5 , 2017

Gap in Rules About Parties


June 5, 2017

Personal Costs Against
Solicitors


April 26, 2017

Clogged Courts


April 11, 2017

Dismissal for Want of
Prosecution


January 6, 2017

Incomplete Disclosure


December 15, 2016

Mediation


November 23, 2016

Is Contract Interpretation Law?

 

Welcome

Côté’s Commentaries

© 2016-2021 J.E. Côté

RELEASES OF CLAIMS

Insurance companies and lawyers often use printed forms or traditional wordings when someone signs a release of a claim. That can produce uncertainties. The uncertainties have now changed because of a very recent Supreme Court decision; now they are probably larger, not smaller.

The most common uncertainties and dispute are whether the release bars all possible claims, or just the claim which the parties discussed or negotiated. Often the formal release document purports to release every possible claim of every type. There used to be special old rules and presumptions for deciding that question.

The 2014 Sattva decision of the Supreme Court changed the law of interpreting contracts in Canada. Now the Supreme Court has just held that those old rules about releases are gone. Instead, a release is a contract to be interpreted under the Sattva rules, like any other contract. Background facts when making a contract are often relevant and admissible. They include circumstances known to the parties and the nature of their relationship. But subjective intent is neither admissible nor relevant. And an unknown claim can be released. Nor does it take special exact language to have such a wide release.

The Supreme Court points out that, unfortunately, objective apparent intent at the time of signing often conflicts with the face of the release signed. That leads to uncertainty, and possible need for a trial, which obviously neither party wanted. So printed forms and boilerplate wording off a computer or a precedent are very dangerous. Especially when an auto body shop proffers the release and has it signed.

Instead, the parties should discuss and agree on whether the release is about one specific claim, or about every possible claim. And the document signed should make it very clear which result the parties choose.

The case expressly does not decide whether evidence of the parties’ negotiations is admissible.

The potential defendant who is no longer to be liable, may find that a consent judgment gives better protection than a discontinuance and release. A judgment may be protected by various forms of res judicata. Maybe a suit should even be started, just to permit an immediate consent judgment.

See Corner Brook (City) v. Bailey 2021 SCC 29.

– Hon. J.E. Côté

 

The Commentaries are intended to call the attention of lawyers to promising or threatening developments in the law, in civil procedure, in developing their skills, or simply to describe something curious, funny or intriguing.

Justice Côté recently retired from the Court of Appeal of Alberta and currently acts as an arbitrator, mediator, or referee under Rules 6.44 and 6.45 of the Alberta Rules of Court.

He may be contacted through Juriliber at email: info@juriliber.com or phone 780-424-5345.