Gubbels v. Fitterer et al

2006 BCSC 795 Gubbels v. Fitterer et al

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Gubbels v. Fitterer et al, 2006 BCSC 795 Date: 20060518 Docket: 97 2026 Registry: Victoria Between: Ludmilla Gubbels Plaintiff And Peter Fitterer, John Fitterer, William Fitterer, Geraldine Karen Fitterer and George P. Jakubowski, Administrator pendent elite of the Estate of John Frederick Fitterer Defendants Before: The Honourable Mr. Justice Parrett Reasons for Judgment In Chambers Counsel for the Estate of Peter Fitterer, deceased: H. McLellan Counsel for the defendants William and Geraldine Fitterer: J.D. Waddell, Q.C. Date and Place of Hearing: December 1, 2005 Victoria, B.C.

INTRODUCTION [1] The present application is brought by Ludmilla Gubbels in her capacity as Executrix of the will of Peter Fitterer and seeks to enforce a settlement she says was reached between Peter Fitterer and the other defendants as beneficiaries of the Estate and Executors of the will of John Frederick Fitterer. [2] The settlement agreement underlying this application was allegedly reached during the course of an 18A application on March 17, 1999.

BACKGROUND [3] John Frederick Fitterer died on March 23, 1996 and was survived by his third wife Geraldine Karen Fitterer (45 years of age at the time of his death) and his children Ludmilla Gubbels (age 54), John Fitterer (age 52), Peter Fitterer (age 50) and William Fitterer (age 40). [4] The deceased, John Frederick Fitterer, left a will dated March 9, 1994 which, after a series of minor specific bequests, directed that: a) Geraldine was to receive (i) an automobile, (ii) a residence for her use during her lifetime to revert to the Estate upon her death, (iii) income from $1,600,000.00, the capital to form part of the residue of the Estate upon her death, and (iv) all of the deceased's shares in 1015 Cumberland Ltd. b) Ludmilla was to be given the sum of $100,000.00. c) Peter was to be given the sum of $100,000.00. d) the residue of the Estate was to be divided equally between John Fitterer and William Fitterer. [5] The validity of the will was challenged and a probate action commenced on May 23, 1996. The present action was commenced on May 1, 1997 and through this action Ludmilla, and later Peter, sought under the Wills Variation Act to increase their respective legacies. [6] Peter's claim was advanced in the present action by the filing of his statement of defence and counterclaim under R. 8(15).

HISTORY OF THE PRESENT PROCEEDING [7] On October 16, 1998, John and William filed a R. 18A application which sought to have the Wills Variation Act claims advanced by Ludmilla and Peter dismissed. [8] In December 1998, before the application was heard, a settlement of Ludmilla's claim was reached. As has been too common in the present action, a series of difficulties with that settlement followed, but they were eventually resolved. [9] The remainder of the application related to Peter's claim was fixed for hearing before Melvin J. on March 16 and 17, 1999. [10] On March 15, 1999, counsel for Peter served a formal offer to settle on opposing counsel. It read: Peter offers to accept $150,000.00 to include all costs and disbursements in satisfaction of claims with respect to this action. [11] The hearing began and on the second day (March 17, 1999) at 2:00 p.m., counsel for the applicants delivered to Peter's counsel a written unconditional acceptance of the offer. Counsel had handwritten their acceptance on the offer in the following language: We hereby accept the within offer. Dated this 17th day of March, 1999 - 2:00 PM. [12] The acceptance was signed by both counsel representing the applicants. [13] Shortly after Melvin J. was advised that a settlement had been reached. In particular, counsel for Peter Fitterer made the following statement to the court: I'm just trying to get

the exact wording from one of the cases that I had, and that is, as I understand it, if the application is granted to vary the will there has to be an order declaring the will to be varied to the extent of the settlement amount, which is a hundred and fifty thousand dollars plus three thousand seven hundred and fifty dollars costs. An order of that fashion will have to be drawn up and submitted for your approval. [Emphasis added] [14] Counsel prepared and circulated a draft order the same day. The order submitted contained the following: This Court Orders that the defendants, John Fitterer, William Fitterer and Geraldine Karen Fitterer, pay to the Defendant, Peter Fitterer, the sum of $153,750.00 in satisfaction of his claims in this action and in satisfaction of his interest in the Estate of John Frederick Fitterer. [15] The named defendants refused to approve the draft order taking the position that they had never agreed to pay the settlement personally. [16] On March 18, 1999, the parties attended once again before Melvin J. where counsel for Peter Fitterer argued that the settlement required the named defendants to pay the funds personally. Counsel for John Fitterer, William Fitterer and Geraldine Karen Fitterer argued that the settlement simply varied the will to make the particular bequest $150,000.00 instead of $100,000.00 and that it was always understood the funds

would come from the Estate. [17] Melvin J. concluded at the close of submissions that he was unable to resolve the dispute. [18] This result led to a further application when Peter Fitterer brought an application in the present proceeding seeking: . . . an order enforcing the terms of the Offer to Settle accepted March 17, 1999 namely that the Defendants, John Fitterer, William Fitterer, and Geraldine Karen Fitterer, pay to the defendant Peter Fitterer the sum of $150,000 plus costs and disbursements . . . [Emphasis added] [19] On April 13, 1999, Melvin J. concluded, after hearing submissions on the motion, at para. 6 of his oral reasons: [6] So to translate the offer to settle, that is in writing which has the endorsement on it, into a monetary judgment against the named beneficiary as described in the Notice of Motion issued on April 6th . . . in my view would be completely inconsistent with what the court was asked to do by counsel at the conclusion of the proceedings on the 17th of March. [20] Peter Fitterer appealed that ruling arguing that the hearing judge had erred in failing to grant his application in the terms sought. In his appeal he specifically sought: a) an order that the Respondents, John Fitterer, William Fitterer and Geraldine Fitterer, pay the sum of $153,750.00 to the appellant in satisfaction of his interest in the estate of John Frederick Fitterer and his

claims under the Wills Variation Act. [Emphasis added] [21] The respondents on the appeal argued that they had unconditionally accepted the appellant's offer to settle and went on to submit that the settlement was one to vary the terms of the will and to have the settlement amount paid out of the Estate. [22] The reasons of the Court of Appeal consist of two paragraphs which find that Melvin J. did not err in declining to apply R.

37. The reasons are as follows: [1] SOUTHIN, J.A.: This matter comes to us on 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 questions 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. [Emphasis added] [23] I note in passing that the application before Melvin J. originally was brought under R. 18A but that the motion leading to the appeal was brought under R. 37(20) and (21). [24] It can be seen from these reasons that the court confined their decision to the R. 37 argument.

THE PRESENT APPLICATION [25] In this application Ludmilla Gubbels, in her capacity as Executrix of the will of Peter Fitterer, seeks, pursuant to s. 8 and 10 of the Law and Equity Act: 1) an Order that the proceedings be stayed; 2) an Order in the terms of the Settlement reached between the parties on March 17, 1999; and 3) costs. [26] The applicant frames the issue in their chambers brief in these terms: Was there a settlement of the Wills Variation Act claim of Peter Fitterer on March 17, 1999 and if so, on what terms.

SUBMISSIONS [27] In the present application both sides have materially altered their positions. [28] The applicant submits that there was a binding settlement between the parties and that there should be a variation of the will to reflect that settlement. [29] The respondents now submit that there was no consensus ad idem and that, as a result, there was no enforceable settlement. In any case, they submit the issue is res judicata in that it has already been determined in the previous proceedings. [30] In the present application the parties have returned to court on a similar issue arising from the same facts having altered their position in each case as to the legal effect of the events. [31] In its submissions on this application the applicant submits that the written acceptance endorsed on the offer to settle together with the verbal agreement for time to pay and the agreement for the additional $3,750 in costs constituted a binding settlement between the parties. In their chambers brief, they submit that: Mr. Doell thought the parties had also agreed that Geraldine, John and William would personally pay the settlement funds. This is denied by their counsel. There is nothing in writing between the parties on this point. This does not affect the validity of what had been indisputably offered and accepted and what the Court had been told on March 17, 1999 that the parties

agreed to. . . . Opposing counsel only disputed who was to pay. In effect, the Judge held that he could not settle the terms of the order as sought by Peter Fitterer. That does not mean that there was no settlement, just that the Order as proposed did not match the correct settlement terms. There has been no judicial determination of the validity or effect of the accepted Offer to Settle. [32] On the present application the applicant's submissions are neatly encompassed in the remedies they seek; which include: a) a stay of the within action pending completion of the agreement reached between the parties; b) a declaration that the claim of Peter Fitterer under the Wills Variation Act was settled by agreement on the terms that the estate of John Frederick Fitterer pay the sum of $153,750 to Peter Fitterer without abatement; c) a decree of specific performance of the settlement agreement, and d) [an order that] the applicant's costs be paid by the Defendants John Fitterer, William Fitterer, or alternatively, by the estate of the deceased. [33] The defendants on this application now take the position that there was never a consensus ad idem between the parties regarding the essential terms of a settlement agreement and that there is therefore no enforceable settlement agreement. [34] The defendants then go on to submit that, in any case, this issue was already determined by the

court in the previous proceeding before Melvin J. [35] While the defendants have not specifically pleaded res judicata they put the issue this way in their written submissions: It is worthy of note that the settlement discussions occurred virtually under the nose of the Court. Mr. Justice Melvin, who presided over the 18A application and who dealt with counsel for the parties during the immediacy of the settlement discussions, clearly concluded on two different[t] occasions that he could not find that a deal had been struck. While Madam Justice Southin did allow for the possibility of Peter making an application to stay the proceedings or to sue upon the alleged settlement, she did not disagree with Mr. Justice Melvin's finding of fact on the crucial issue of whether a settlement had been reached. [Emphasis added]

DISCUSSION [36] This is a regrettable situation which could have been resolved on the initial hearing if the issues had been framed differently by the parties. [37] The parties have now returned to court having altered their positions on the effect of the underlying facts. Peter Fitterer's Estate now argues that there is a settlement agreement but on different terms than those which Peter Fitterer argued in the first proceeding. The defendants on this application now argue that there is no enforceable agreement whereas in the previous proceeding they argued that there was a settlement agreement on the very terms now advanced by Peter Fitterer's Estate.

RES JUDICATA [38] There are two distinct forms of res judicata recognized in the authorities: issue estoppel and cause of action estoppel. [39] In R. v. Riddle (1979), 48 C.C.C. (2d) 365 at 369, the Supreme Court of Canada, in essence, defined res judicata as "something that has clearly been decided" and "has passed into a matter adjudged". [40] In essence, issue estoppel arises when the issue has clearly been decided in the previous proceeding, while cause of action estoppel arises where the cause of action itself has passed into a matter adjudged as a result of the previous proceeding. [41] In Henderson v. Henderson (1843), 3 Hare 100 at 112, an estoppel doctrine was established which encompassed not just what has been decided but also that which could have been decided. [42] The doctrine is based on two policy considerations. Firstly, that it is in the interest of the public that there should be an end to litigation; and secondly, the individual right that no-one should be tried or implicated twice by the same cause. [43] Res judicata is considered to be a rule of evidence that must be specifically pleaded if it is to be raised. In this case there is no such specific pleading but, in my view, it is in no-one's interest to have this issue decided on that basis. If it is necessary I would allow the defendants on this application leave to amend to plead that issue. [44] Where

res judicata is raised, the burden of proving it falls on the party advancing that issue and the court may look to the documentation behind the formal judgment, the reasons, the pleadings, and appeal materials, including factums (Donald J. Lange, The Doctrine of Res Judicata in Canada, Markham Ontario: Butterworths 2000 at pp. 12-14). [45] The leading authority on the doctrine of issue estoppel is the Supreme Court of Canada decision in Angle v. Minister of National Revenue (1974), 47 D.L.R. (3d) 544 at pp. 555-56. Dickson J., as he then was, writing for the majority, adopted three criteria as the basis for establishing issue estoppel: . . . (1) that the same question has been decided; (2) that the judicial decision which is said to create the estoppel was final; and (3) that the parties to the judicial decision or their privies were the same persons as the parties to the proceeding in which the estoppel is raised. . . . [46] The so-called same question test is the central feature of issue estoppel as is noted by author Donald J. Lange, where at p. 38 he observes that: The traditional view of issue estoppel is that the same question has been decided. This means that the same question must have been decided, that is, actually decided, in the first proceeding. The Supreme Court of Canada has repeatedly maintained the traditional view of the same question test . . . In Grandview

(Town) v. Doering, Ritchie J., speaking for the majority . . ., held that the same question test for issue estoppel is whether the question has been decided in the first proceeding, not whether the question could have been decided. If the question could have been decided, then cause of action estoppel applies. [47] There is, in addition, a fourth requirement and that is that the question must have been fundamental to the first decision. Dickson J. described this requirement in Angle: It will not suffice if the question arose collaterally or incidentally in the earlier proceedings or is one which must be inferred by argument from the judgment. [48] The fundamental question criteria has been discussed in a number of authorities, including R. v. Duhamel (1984), 57 A.R.

204. Perhaps the most useful summary of the authorities is at p. 41 of The Doctrine of Res Judicata in Canada, where the author says: The fastidious approach to the same question test became a guiding principle in Heynen v. Frito-Lay Canada Ltd. [(1999), 179 D.L.R. (4th) 317 (Ont. C.A.) at 323]. Goudge, J.A., for the court stated: Although at a high level of generalization, two proceedings might seem to address the same question, this requirement of issue estoppel is met only if on careful analysis of the relevant facts and the applicable law the answer to the specific question in earlier proceedings can be said to determine the issue in the subsequent proceeding. . . . One criterion for the same question test is whether the same evidence is used in both proceedings. It is not necessary that the question said to be estopped in the subsequent action be the main point or the ratio in the previous action. It is only necessary that it be an essential point or fundamental to the decision.

APPLICATION TO THE PRESENT FACTS [49] To begin this consideration it must first be recognized that the application before the court on the first occasion was an application brought under R. 37(20) and (21) and not a trial. [50] The applicant was seeking an order in specific terms based on what he alleged was a completed settlement on those terms. The essence of the dispute was whether there should be an order that the three other beneficiaries should pay the settlement personally. [51] In my respectful view, the reasons given by Melvin J. in this court and by Southin J.A. in the Court of Appeal were both narrow and focused. [52] Melvin J., in para. 6 of his reasons (quoted above at para. 19), made it abundantly clear that he could not interpret the events in the specific way sought in the notice of motion. I am wholly unable, after careful review, to find any suggestion in his decision that he was of the view, let alone making a finding, that in fact there was no agreement at all. [53] The essence of his decision was, in my view, that he could not find that there was an intention to impose liability with respect to the agreement on the beneficiaries personally. This distinction is critical because it is consistent with both the fact that the underlying action was brought under the Wills Variation Act and the statements of counsel at the time the court was informed of the

settlement. [54] The distinction is maintained even more carefully in the opening two paragraphs of the reasons given by Southin J.A. where, on five different occasions, she makes it clear that they are not determining whether there is or is not an agreement, but rather, whether Melvin J. erred in refusing to apply R. 37. [55] The two decisions in question were both restricted to whether or not R. 37 could be invoked and, specifically, did not go on to a consideration of whether there was actually an enforceable agreement or what its terms might be. [56] It is unfortunate the issue was not placed before the court more broadly to allow a determination of the issue in the initial proceeding, but, in my view, it was not. Although the facts surrounding the present application were before the court and the present arguments were referred to, they were neither fundamental to the issue decided nor determined in the previous proceedings. [57] There is authority in this jurisdiction supporting the broader or extended form of issue estoppel which arose in Henderson. [58] Recently, in United Pacific Capital Ltd. v. Piche, 2005 BCSC 671, Groberman J. found that the defendants could have made the argument that a settlement agreement was not binding or enforceable at the previous proceeding and that, as they could have it was res judicata in the subsequent proceeding. At para. 22, the court

refers to Henderson, with approval, and then goes on to observe: [23] I recognize that there are many cases in which the principle cited in this passage has been found inapplicable, and that Wigram V.C. himself speaks of "special circumstances" in which a plea of res judicata will not avail. I also recognize that in Danyluk v. Ainsworth Technologies Inc., [2001] 2 S.C.R. 460, it was said that there is a discretion in the court to refuse to apply the doctrine of issue estoppel in appropriate cases - though that discretion would appear to be "very limited" where the previous proceedings in issue are court proceedings (General Motors of Canada Ltd. v. Naken, [1983] 1 S.C.R. 72 at 101). [24] In my judgment, however, this is a case in which effect should be given to the doctrine of res judicata. It would be inequitable to allow the defendants, having refrained from raising relevant facts or making argument at the November application, to now present those arguments. My order of November 5, 2004 precludes the plaintiffs from proceeding with their actions, except for the purpose of implementing a settlement agreement. It was a final order. It would be highly prejudicial to the plaintiffs to allow the defendants to now put forward an argument that the settlement agreement cannot be legally implemented. [59] I emphasize that in United Pacific Capital Ltd. the order in issue was a final

order and there was a specific finding that it would be "highly prejudicial" to the plaintiffs to allow the issue to be raised. [60] In the present case the position advanced by the defendants on the present application at the initial hearing was that there was a binding agreement but that it was limited to a variation of the will. It is that precise position now being advanced by the applicant. [61] In my view res judicata in the form of issue estoppel does not arise on the circumstances of this case. [62] In the event I am incorrect in that conclusion there is, nevertheless, a residual discretion in the court which could be exercised to achieve a fair result. Such a discretion, though limited, is recognized in British Columbia (Minister of Forests) v. Bugbusters Pest Management Inc. (1998), 50 B.C.L.R. (3d) 1 (B.C.C.A.); Bear Island Foundation v. Ontario (1999), 126 O.A.C. 385 (Ont. C.A.); Danyluk v. Ainsworth Technologies Inc., [2001] 2 S.C.R. 460 and Naken v. General Motors of Canada Ltd., [1983] 1 S.C.R. 72. [63] In the circumstances of this case, if I am incorrect in the conclusion I have reached, I would exercise that discretion and refuse to apply the doctrine of res judicata.

CAUSE OF ACTION ESTOPPEL [64] Perhaps the most frequently quoted expression of cause of action estoppel is found in the decision in Henderson, supra, at p. 114: In trying this question I believe I state the rule of the Court correctly when I say that, where a given matter becomes the subject of litigation in, and of adjudication by, a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time. [65] What occurred in this case is regrettable. It could and has, in effect, been argued that the entirety of the claim regarding the settlement agreement should have been brought before Melvin J. and decided in the first proceeding, but it was not, and the courts, in each case, clearly contemplated subsequent proceedings

either by application or separate action. [66] The courts have always exercised a degree of caution when applying the doctrine of res judicata to decisions reached in applications. (See Re Knowles, [1938] 3 D.L.R. 178 (Ont. C.A.) and Cameron v. Hull (1913), 9 D.L.R. 843 (Ont. H.C.) [67] Masten J. in Re Knowles, at 184, put it in these words: In the present case the question of the respondent's rights to receive the residue was so distinctly raised by the originating notice and so distinctly dealt with by the order of Sedgewick J., that it is impossible for this Court to do otherwise than hold that the appellant is estopped. But in the case of vague applications instituted by way of originating notice this doctrine of estoppel ought to be applied with extreme caution, particularly where the application is brought by executors and trustees for advice, so that questions, which were not specifically in issue and not definitely raised because they were not really in the contemplation of the parties, may not be held thereafter to be concluded. [Emphasis added] [68] Cameron v. Hull is a decision which, in some respects, parallels the present case. Sutherland J., on a vendor and purchaser application, refused to decide if an objection by the purchaser was groundless and, in dismissing the application, gave the vendor leave to "seek such other remedy as he may be advised". [69] When the

vendor brought a subsequent action for specific performance, the defendant objected that the issue was res judicata. [70] The courts reasoning draws a clear distinction between those elements material to a court's decision and those that are not: . . . Even without that leave, there was no res judicata on the question of title. The summary proceedings under the Act afford a convenient and inexpensive way of getting the opinion of the Court on isolated points arising out of or connected with the contract. The real question here was, whether a release from the heirs of the mother was needful in a proper conveyance of the farm. Sutherland, J., abstained from declaring that the title could not be forced on the purchaser, and rightly so, because as pointed out by Kekewick, J., in Re Walsh, [1899] 1 Ch. 521, the whole case is not exhaustively treated on a vendor and purchaser summons, and to reach such a conclusion is really a matter for decision in an action for specific performance. [71] The principles were again considered recently in Buschau v. Rogers Communications Inc., 2003 BCSC 1718. In this case the defendants applied to re-open an order entered in 1999 on the basis that an amount set out in the order was miscalculated. [72] The plaintiffs contended that the application was precluded by the doctrine of res judicata for applying to re-open under the court's inherent

jurisdiction having unsuccessfully sought to do so under the slip rule. In that previous application the court had found it lacked jurisdiction to correct the miscalculation under the slip rule. [73] In his reasons, Groberman J. commented on the doctrine of res judicata noting at para. 36: [36] I acknowledge that the doctrine of res judicata does not apply to interlocutory applications. The court has some discretion, however, with respect to the application of the doctrine, and will generally apply it less stringently to interlocutory orders than to final orders. In particular, the rule in Henderson v. Henderson (1843), 3 Hare 100, 67 E.R. 313 (Ch.) that a party must bring forward "its full case" at one time is of limited application to interlocutory applications. Judicial efficiency, one of the foundations of the doctrine of res judicata, will often be well served by allowing interlocutory applications to deal with only small parts of a larger picture. He then went on to comment on the effect of a judge's intention to leave a matter open: [38] Further, as I read Mr. Justice Lowry's reasons of June 17, it was his intention to leave open the matter of rectification. I refer again to the final paragraph of his judgment, which stated: [22] I conclude only that R.C.I.'s application to have the order amended under Rule 41(24) cannot succeed. It seems to me that that statement

amounts to a virtual invitation to the defendants to return to court to argue rectification. [39] In view of the court's intention at the time not to foreclose further argument, it would be inappropriate, in my view, to apply the Henderson v. Henderson principle and declare the matter to be res judicata. [74] In my view, a similar approach must be adopted in the present case and, although these applications are not interlocutory, it would not be appropriate to apply cause of action estoppel or the expanded view of issue estoppel in Henderson to the circumstances in this case.

DISCUSSION [75] In this case, the defendants John Fitterer, William Fitterer and Geraldine Karen Fitterer were not simply the three remaining beneficiaries they were also the three Executors of the Estate. At the time the agreement is alleged to have been made they were the only people actively involved in the litigation. [76] Two affidavits are material to that event: a) The first is that of Peter Klassen who was at the time solicitor of record for Geraldine Karen Fitterer. Mr. Klassen states, in part, that: . . . at all material times I understood, that the import of the Offer to Settle made by Mr. Doell on behalf of his client was that, consistent with his Wills Variation Action [sic] claim in the Action, Peter offered to settle on the terms that the Will would be varied to provide him with $150,000 bequest, all without abatement. [77] The second is that of Harold J. Rusk who was at the time solicitor of record for John Fitterer and William Fitterer. Mr. Rusk states in identical language his understanding of the Offer to Settle. [78] I regret to say that in light of all that has transpired in this litigation when the issue is framed as it presently is "Was there a settlement of the Wills Variation Act claim of Peter Fitterer on March 17, 1999 and, if so, on what terms?", the answer is clear. [79] The formal offer served on opposing counsel on March 15, 1999 was: Peter offers

to accept $150,000 to include all costs and disbursements in satisfaction of claims with respect to this action. [80] The only claim advanced in the action was a claim under the Wills Variation Act to vary the will. No claims were advanced against the other beneficiaries personally. [81] At 2:00 p.m. on March 17, 1999 counsel for the three other beneficiaries and Executors through counsel delivered to Peter Fitterer's counsel a copy of the offer with their acceptance endorsed on it. The handwritten notation read: We hereby accept the within offer. Dated this 17th day of March, 1999 - 2:00 PM. It was signed by both Mr. Klassen and Mr. Rusk. [82] What followed the delivery of this acceptance was an oral agreement covering time to pay and an agreement that $3,750 in costs would be paid to Peter Fitterer in addition to the $150,000. [83] None of this is disputed. The dispute which subsequently arose and which was at the heart of the previous proceeding was that Mr. Doell, Peter Fitterer's counsel, thought that the three beneficiaries had agreed to personally pay the settlement funds. There is nothing in writing that suggests that is the case. [84] In my view, the analysis here is clear. A formal offer in writing was made and communicated. The offer is, on its face, clear and unequivocal. There is within it no ambiguity. The offer is for a fixed amount to settle his "claims with

respect to this action". [85] The claim is one brought within the context of the Wills Variation Act. [86] The offer was accepted unconditionally and in unambiguous terms at 2:00 p.m. on March 17, 1999 and at that moment an enforceable settlement agreement came into being. [87] Discussions between counsel also subsequently added to the concluded agreement an additional payment of costs of $3,750 but the dispute which then emerged can, in my view, not derogate from the terms of the concluded settlement. [88] The applicant is entitled to orders including: a) a stay of the within action pending completion of the agreement reached between the parties; b) a declaration that the claim of Peter Fitterer under the Wills Variation Act was settled by agreement on the terms that the Estate of John Frederick Fitterer pay the sum of $153,750 without abatement to Peter Fitterer; c) any necessary or ancillary orders to implement that settlement agreement. [89] If counsel are unable to agree on costs they may be spoken to. "W.G. Parrett, J." The Honourable Mr. Justice W.G. Parrett