Gubbels v. Fitterer
Because there was a serious question about what bargain, if any, was made, the trial judge did not err in declining to apply Rule 37 to implement a settlement; the appeal is dismissed and the appellant retains remedies such as a motion to enforce or suing on the alleged settlement.
Source-derived case information.
- Citation
- 2000 BCCA 609
- Parties
- Plaintiff (respondent): Ludmilla Gubbels; Defendant (appellant): Peter Fitterer; Defendant (respondent): John Fitterer; Defendant (respondent): William Fitterer; Defendant (respondent): Geraldine Karen Fitterer; Defendant (respondent): George P. Jakubowski, Administrator pendente lite of the Estate of John Frederick Fitterer
- Court
- British Columbia Court of Appeal
- Jurisdiction
- Canada
- Judgment Date
- 7 November 2000
- Procedural Posture
- Appeal From Application Under Rule 18 a for Variation of a Will; Invoked Rule 37 Offer to Settle / Court of Appeal Oral Reasons for Judgment; Disposition of Appeal
- Outcome
- Appeal dismissed.
- Legal Topics
- Variation of Will (rule 18 A), Offer to Settle (rule 37), Enforcement of Settlement, Appeal Standard
- Source Language
- english
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ludmilla Gubbels
Plaintiff (respondent)
Peter Fitterer
Defendant (appellant)
John Fitterer
Defendant (respondent)
William Fitterer
Defendant (respondent)
Geraldine Karen Fitterer
Defendant (respondent)
George P. Jakubowski, Administrator pendente lite of the Estate of John Frederick Fitterer
Defendant (respondent)
Procedural Posture
Appeal From Application Under Rule 18 a for Variation of a Will; Invoked Rule 37 Offer to Settle / Court of Appeal Oral Reasons for Judgment; Disposition of Appeal
Legal Issues
- 1 Whether a binding settlement was concluded that could be enforced under Rule 37
- 2 Whether the trial judge erred in refusing to apply Rule 37 to implement the alleged settlement
- 3 Appropriate remedies where settlement terms are uncertain
Ratio Decidendi
Because there was a serious question about what bargain, if any, was made, the trial judge did not err in declining to apply Rule 37 to implement a settlement; the appeal is dismissed and the appellant retains remedies such as a motion to enforce or suing on the alleged settlement.
Court Disposition
Appeal dismissed.
Orders
- Appeal dismissed.
Full Case Text
Judgment text and source record
1 paragraphs
2000 BCCA 609 Citation: Gubbels v. Fitterer Date: 20001107 2000 BCCA 609 Docket: V03454 Registry: Victoria COURT OF APPEAL FOR BRITISH COLUMBIA ORAL REASONS FOR JUDGMENT Before: The Honourable Madam Justice Southin November 7, 2000 The Honourable Madam Justice Prowse The Honourable Mr. Justice Donald Victoria, B.C. BETWEEN: LUDMILLA GUBBELS PLAINTIFF (RESPONDENT) AND: PETER FITTERER DEFENDANT (APPELLANT) AND: JOHN FITTERER, WILLIAM FITTERER, GERALDINE KAREN FITTERER and GEORGE P. JAKUBOWSKI, Administrator pendente lite of the Estate of John Frederick Fitterer DEFENDANTS (RESPONDENTS) B. Mavis Ray appearing for the Appellant Harold Rusk appearing for the Respondents, John Fitterer, William Fitterer and Geraldine Fitterer [1] SOUTHIN, J.A.: This matter comes to us on an appeal from Mr. Justice Melvin, who was hearing an application under Rule 18A for a variation of a will. The parties apparently made a settlement and thereupon invoked Rule 37, the offer to settle Rule, with a view to implementing the apparent settlement. [2] It becomes clear from reading the transcript of what occurred that there is a serious question as to what bargain was in fact made. There may have been a bargain. We are not saying that there was no bargain. The learned judge was acutely aware of the difficulties that arose and under the circumstances we cannot say that he erred when he declined to carry out Rule 37 in this particular litigation. The appellant may very well have, we do not say he does, but he may very well have a remedy by bringing the usual motion to enforce a settlement, of which there have been many in British Columbia. He may choose to sue upon what he says was the settlement; that is another way of going about it. But, whatever else may be said about this, Mr. Justice Melvin did not err when he said he could not apply Rule 37 to these proceedings. [3] Under those circumstances I would dismiss the appeal. [4] PROWSE, J.A.: I agree. [5] DONALD, J.A.: I agree. [6] PROWSE, J.A.: The appeal is dismissed. "The Honourable Madam Justice Southin"