Enforcing Settlements

Enforcing SettlementsIt is not uncommon in estate litigation for the emotions of certain parties to melt down so that it is necessary to take steps for enforcing settlements.


I currently have a case where a settlement was made at a mediation between warring siblings aligned three to one.

Despite all parties having been represented by counsel and a former Supreme Court Justice was used as the mediator, the sole child is now arguing that he was mentally incompetent at the time and did not understand the settlement that he and his counsel negotiated after a day of back and forth.


When that happens, here is the law as was referred to in Zak v Zak 2015 BCSC 1993:


Section 10 of the Law and Equity Act, R.S.B.C. 1996, c. 253 authorizes the court to enforce settlement agreements in the context of an existing action, rather than requiring a party to commence a new action on an alleged settlement agreement.


Section 10 provides:


Avoidance of multiplicity of proceedings


10 In the exercise of its jurisdiction in a cause or matter before it, the court must grant, either absolutely or on reasonable conditions that to it seem just, all remedies that any of the parties may appear to be entitled to in respect of any legal or equitable claim properly brought forward by them in the cause or matter so that, as far as possible, all matters in controversy between the parties may be completely and finally determined and all multiplicity of legal proceedings concerning any of those matters may be avoided.


26      In Son v. Kim, 2009 BCSC 776 (B.C. S.C.), Madam Justice MacKenzie, as she then was, described s. 10 in these terms at para. 41:

Section 10 gives the Court broad equitable jurisdiction to grant remedies to which the parties may be entitled in the cause or matter between them so that multiplicity of legal proceedings concerning those matters may be avoided.


27      Madam Justice MacKenzie reviewed a number of authorities that considered whether the court could enforce a settlement agreement on a summary application, and she concluded at para. 45:


“Based on the foregoing jurisprudence, there seems to be no doubt that the Court has the jurisdiction to enforce or set aside an agreement that compromises an action notwithstanding that it involves matters extraneous to the action, or even that there is a substantial issue as to the terms, validity or enforceability of the agreement. The exercise of this jurisdiction will depend on whether justice is best served under the summary procedure in the peculiar circumstances of the settlement agreement in question.”

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