Bean v. Watch Tower Bible and Tract Society of Canada

Bean v. Watch Tower Bible and Tract Society of Canada Court Supreme Court Date 2026-01-22 Citation 2026 NSSC 144 Docket Hfx No. 456861 Judge/Registrar/Adjudicator McDougall, Glen G. (Honourable Justice) Document Type Decision Decision Content SUPREME COURT OF Nova Scotia Citation: Bean v. Watch Tower Bible and Tract Society of Canada, 2026 NSSC 144 Date: 20260122 Docket: Hfx No. 456861 Registry: Halifax Between: Kelli Bean and Anna Smith Plaintiffs v. Watch Tower Bible and Tract Society of Canada and Bill MacKay Defendants DECISION Judge: The Honourable Justice Glen G. McDougall Heard: January 22, 2026, in Halifax, Nova Scotia Counsel: Michael Dull, K.C., and Basia Sowinski for the Plaintiffs William Ryan, K.C., and Calvin Dewolfe for the Defendants By the Court: Overview [1] The Plaintiffs, Kelli Bean and Anna Smith, commenced an action against the Defendants, Watch Tower Bible and Tract Society of Canada and Bill MacKay, by filing a Notice of Action and Statement of Claim on October 24, 2016. The Nature of the Plaintiffs’ Claim: [2] The Plaintiffs, sisters of one another, alleged that they were the victims of sexual abuse by the Defendant, Bill MacKay (“MacKay”), an individual who served as a ministerial servant for the other defendant, Watch Tower Bible and Tract Society of Canada (“Watch Tower”). [3] The Statement of Claim, accompanying the Notice of Action, separately identified the two Plaintiffs. Other than this, the alleged wrong doing by the Defendant MacKay and the vicarious liability claim made against Watch Tower, based on negligence, did not particularize or distinguish between the claims advanced on behalf of the two Plaintiffs. They each sought general damages for pain and suffering and loss of amenities along with aggravated damages, special damages, punitive and exemplary damages together with prejudgment interest on any damages awarded and costs of the action. Additional Procedural Steps and Background Information: [4] A Notice of Defence was filed on behalf of MacKay followed shortly thereafter by a Notice of Defence with Crossclaim on behalf of Watch Tower. [5] A Notice of Defence to Crossclaim was filed on behalf of MacKay on June 30, 2017. [6] An Order for Security for Costs against the Plaintiffs was granted on March 23, 2018. The Plaintiffs were ordered to post security for costs in the amount of $10,000.00 on or before July 9, 2018. The payment was made under cover of correspondence from the Plaintiffs’ counsel dated July 11, 2018. [7] Discovery of the two Plaintiffs took place on July 17 and July 18, 2018. [8] Discovery of the designated discovery manager of Watch Tower took place on May 28, 2019. [9] The discovery of the Defendant MacKay occurred on November 8, 2019. [10] A Date Assignment Conference was held on June 10, 2022. [11] Due to the estimated number of days required to conduct the judge and jury trial, the actual trial dates were assigned by the Scheduling Manager and communicated to counsel on October 12, 2022. Eighteen days, commencing on Monday, February 2, 2026 and concluding on Wednesday, March 4, 2026, were set aside for the trial. [12] A Trial Readiness Conference was held on Friday, November 28, 2025. At that time, counsel for the parties advised the Court that the trial would not be proceeding and the dates were released. A settlement of the Plaintiffs’ claim against MacKay had already been achieved by them. [13] Negotiation to settle the claims of the two Plaintiffs against Watch Tower began as early as June 24, 2025. Counsel for the Plaintiffs sent an email to counsel for Watch Tower on June 25, 2025, in which he made reference to a conversation he had had with opposing counsel the day before. The email, sent on behalf of the Plaintiffs, objected to the wording of a Non-Disclosure Agreement (“NDA”) that counsel for Watch Tower insisted on being signed by the Plaintiffs in return for an order dismissing their claims without costs. [14] Counsel for the Plaintiffs rejected the wording of the NDA and offered what he, in his email, called “compromised language” that he would be prepared to speak to them about. Based on the context of the email, there is no suggestion that counsel was, in any way, speaking for them as individuals rather than together as co-Plaintiffs. [15] What followed over the course of the next several months was an exchange of emails between counsel where neither side budged from its entrenched position regarding the proposed wording of the NDA. There is nothing contained in these various emails to suggest that the Defendant Watch Tower was prepared to settle the matter on a without costs basis (save for the $10,000.00 previously paid into Court as Security for Costs by the Plaintiffs) without the Plaintiffs first signing the NDA containing the language first proposed by its counsel several months earlier. [16] In the email sent to Plaintiffs’ counsel by counsel for Watch Tower on November 3, 2025, he stated: You have our client’s position, and it has not, nor will it, be changed. [17] The final sentence in this email made it abundantly clear that, “If your clients do not wish to see this matter go forward, they have a very simple solution – agree to our client’s terms.” Nothing in this email nor in any of the previous emails exchanged between counsel did anyone suggest that it might be open for acceptance by just one of the Plaintiffs. That is, not until counsel for the Plaintiffs sent an email to opposing counsel on November 5, 2025, in which he stated: Anna Smith accepts your client’s offer. Please forward for release and CDO at your convenience. [18] This prompted Watch Tower’s counsel to send the following reply less than one half-hour later: I certainly will pass along your client’s offer, but I don’t think it will be accepted. Our offer was based on a release from both Plaintiffs and an Order for the release of the security for cost which was placed with the Court. If we don’t have a complete resolution of the claim, then we will have to go through the trial. [Emphasis added]. [19] Less than ten minutes after this email was sent, counsel for the Plaintiffs responded as follows: Hi Mick – There are two individual claimants. Your offer wasn’t contingent on both settling. It was accepted by Anna Smith. There is nothing to get instruction on. We have a binding settlement as it related to Anna Smith. King regards, Mike [20] Less than one and one half-hour later, counsel for Watch Tower sent the following email: Mike, We disagree. There was absolutely no discussions between us on a partial one party settlement and there was never any question we were talking about a FULL settlement. There was NEVER any mention by either one of us that one could opt out without the other. You are fully aware of that and it is disingenuous for you to now claim to the contrary. Your suggestion that there was an offer for just one party without the other Plaintiff is nonsensical. There is no binding settlement for Anna Smith and if you wish to bring a motion on this issue, we will be pleased to respond and seek cost. I would urge you to go back to the email exchange between us: November 8/25@ 7”08, August 18/2525 [sic.]@ 1:09 @2:28, and 2:16, 1:56, June 25/25 @ !:09 [sic.] All correspondence from you refers to your “clients”. Never once will you find any reference to “client”. In addition, any perceived offer from our client, was rejected by your clients which made it null and void. Your clients came back with an offer of their own (which once again nullified by our client, and thus any offer which might have been in existence at the time – there was none) as your clients’ [sic]. Offer was rejected by our client. I am very disappointed in your approach to this matter, but I am 100% convinced how the court will rule on this issue. If you intend to make a motion, please do so immediately so this can be resolved before our trial readiness conference slated for November 28th. Regards, Mick [21] Later that day counsel for the Plaintiffs sent the following email in response: Hi Mick – I’m [sic.] genuinely confused by this position. I’ve [sic.] done numerous “mass tort”, multi-plaintiff actions. Each plaintiff has separate rights and that is no different here. I’m [sic.] confused because I cannot see there to be a reasonable disagreement that Anna Smith has accepted precisely what your client expressly offered: a dismissal of her action, without any compensation owing, and her signature on a release/NDA on the specific terms proposed. The plaintiff are two separate people. They are of course legally independant [sic.] If your client wanted to take the very unusual step of considering these two independent parties as a joint unit, it ought to have expressly stated such in settlement discussions. It did not. Your position effectively requires one independent party to go to trial against her will, because the another independant [sic.] party wishes to do so. That isn’t [sic.] just and I’m [sic.] confident that the court will agree. I will bring motion to enforce the settlement. Are you free for Chambers on Nov 19? Mike [22] On January 6, 2026 counsel for the Plaintiff – Kelli Bean – filed a Notice of Discontinuance on her behalf. [23] He then filed a Notice of Motion on behalf of both Plaintiffs on January 7, 2026 seeking an Order enforcing the terms of a settlement agreement pursuant to Civil Procedure Rule 10.04(1).The Notice of Motion also included a draft Order along with an Affidavit of Michael Dull, K.C., together with a Brief and Book of Authorities. [24] Counsel for Watch Tower filed a Solicitor’s Affidavit of William Ryan, K.C., accompanied by an affidavit of his legal assistant, Shayla Gerber, together with a Reply Brief and Book of Authorities on January 14, 2026. [25] The motion came before me for hearing on January 22, 2026. After hearing submissions from counsel I reserved my decision thinking first I would give it orally by later deciding to give it in writing. Issues: [26] The issue the Court must decide is whether a binding settlement agreement was reached between one of the Plaintiffs, Anna Smith, and the Defendant, Watch Tower, such that the Court should give effect to it pursuant to Civil Procedure Rule 10.04(1). [27] Counsel for Watch Tower identified two sub-issues as follows: a. Any settlement offer extended by Watch Tower was non-severable, requiring acceptance by both Plaintiffs; as such, it was not open for acceptance by Ms. Smith alone; and b. In the further alternative, any settlement offer extended by Watch Tower was not open for acceptance by Ms. Smith, because it had already been rejected (at most, Ms. Smith made a counteroffer). Analysis and Discussion: [28] Counsel for Watch Tower raised an objection to paragraphs 11 and 12 of the Michael Dull, K.C., affidavit that attached a copy of two emails he received from counsel for the other Defendant, Bill MacKay. The objection is based on hearsay. Counsel for Mr. MacKay shares with Mr. Dull some of the conversation she had with Watch Tower’s counsel. Mr. Dull was not a part of the conversation between counsel for the two Defendants and as such, any reference to what was said between them is hearsay. I agree with this. I should add, however, that what is contained in these two emails is, for the most part, properly before the Court in emails exchanged between the two counsel directly involved in this motion. [29] In order to determine if an enforceable agreement has been reached, one must first look to the rule of procedure that governs it. Rules 10.04(1) provides that: Enforcement of settlement agreement or arbitration award 10.04(1) A party who alleges that, after a proceeding was started, the parties reached agreement for settlement of the proceeding or of a claim in the proceeding may make a motion for an order giving effect to the agreement. [30] The powers given to a judge who hears a motion are set out in subsection (2) of the rule: (2) The judge who hears the motion may do any of the following: (a) declare that an agreement was, or was not, made and is, or is not, enforceable; (b) declare the terms of an agreement; (c) grant an order enforcing an agreement according to its terms; (d) order a trial under Rule 4 – Action or a hearing under Rule 5 – Application and give directions about the issues to be determined. [31] In the case Hiltz Estate v. Fitzgerald, 2023 NSSC 259, the Honourable Justice Jeffrey R. Hunt of our Court wrote this, at para. 50: Whether there was an enforceable agreement will be determined through consideration of the following questions: 1. Was there an intention to reach a mutually enforceable resolution of the dispute? 2. Was there mutual agreement on all terms necessary to do so? 3. Were there any issues of party incapacity, failure to disclose material facts, mistake, inequality of bargaining power or other circumstances that would make it unjust to declare and enforce the terms? [32] Counsel for the Defendant cited the Nova Scotia Court of Appeal decision in Piper v. Piper, 2018 NSCA 53 in which the Court borrowed from Fridman’s The Law of Contract in Canada, 5th ed. (Toronto: Thomson Canada Ltd., 2006), for the principle that where there is no single document that points to the existence of a contract then everything that has occurred by way of negotiations between the parties must be considered. At para. 85, Van den Eynden, J., stated the following: In The Law of Contract in Canada, Fridman says this about what a court should examine when there is no single document between the parties, rather a series of negotiations: Sometimes it is a simple matter to decide what the parties have manifested to each other, and consequently, whether they have agreed, and if so, upon what. This is especially true where a document containing their agreement has been prepared and signed by the parties. If the plain wording of the document reveals a clear and unambiguous intent, it is not necessary to go further. Indeed, once that has been done, it may not be possible to have recourse outside such document, either to other written material or to parol evidence from the parties or anyone else, in order to explain, or otherwise clarify what is contained in the document. If there is no single document to which reference can be made in order to decide if a contract exists between the parties, but a series of negotiations, then everything that occurs between the parties relevant to the alleged contract must be considered by the court which is faced with the problem of deciding the issue. From what they have said, done, or written, in combination if necessary, there must be established a bargain or an agreement. … In each instance the courts seek proof of an agreement between the parties involving the necessary exchange of acts and promises, promises and promises, or acts and acts. [Emphasis added] [33] In an earlier decision from the Court, the Honourable Justice Robert Wright, in the case of Certified Design Consulting Inc. v. Alex Lane Properties Inc., 2015 NSSC 367, at paras. 29 and 30, stated this: [29] It is on this body of evidence that the court must now decide whether the parties, through their exchange of e-mails, reached a final and binding settlement agreement and if so, whether there are any implied terms necessary to give effect to that agreement. [30] There are four related legal principles to be applied in the disposition of this case which can be summarized as follows: 1. To be enforceable, there must be agreement between the parties as to all essential terms. The determination of what terms are essential, however, varies with the nature of the transaction and the context in which the agreement is made. 2. One party’s subjective intent has no independent place in this interpretative exercise. Rather, the determination of whether all essential terms of the agreement have been reached is to be assessed from the perspective of an objective, reasonable bystander in light of all the material facts. 3. Where the agreement calls for the execution of a further document, the question is whether the further documentation is a condition of there being an agreement, or whether it is simply an indication of the manner in which the agreement already made will be implemented. 4. In appropriate cases, the essential terms do not all have to be expressed; they may have to be implied in order to give effect to the agreement reached. [34] A review of the various emails exchanged between counsel, culminating with the flurry of messages on November 5, 2025 (previously reproduced in this decision), clearly shows that Watch Tower’s offer to settle without costs (beyond what the Plaintiffs had already paid into Court as security for costs) together with a non-disclosure agreement signed by each of the Plaintiffs were essential to the agreement. [35] In the case of Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, Rothstein, J. at para. 47, spoke about the evolution that has taken place in how contracts are to be interpreted: Regarding the first development, the interpretation of contracts has evolved towards a practical, common-sense approach not dominated by technical rules of construction. The overriding concern is to determine “the intent of the parties and the scope of their understanding” (Jesuit Fathers of Upper Canada v. Guardian Insurance Co. of Canada, 2006 SCC 21, [2006] 1 S.C.R. 744, at para. 27, per LeBel J.; see also Tercon Contractors Ltd. v. British Columbia (Transportation and Highways), 2010 SCC 4, [2010] 1 S.C.R. 69, at paras. 64-65, per Cromwell J.). To do so, a decision-maker must read the contract as a whole, giving the words used their ordinary and grammatical meaning, consistent with the surrounding circumstances known to the parties at the time of formation of the contract. Consideration of the surrounding circumstances recognizes that ascertaining contractual intention can be difficult when looking at words on their own, because words alone do not have an immutable or absolute meaning: No contracts are made in a vacuum: there is always a setting in which they have to be placed. . . . In a commercial contract it is certainly right that the court should know the commercial purpose of the contract and this in turn presupposes knowledge of the genesis of the transaction, the background, the context, the market in which the parties are operating. (Reardon Smith Line, at p. 574, per Lord Wilberforce) [Emphasis added] [36] Applying this approach to the series of emails exchanged amongst counsel which collectively capture the negotiations that were taking place, there is only one logical conclusion. Conclusion [37] Despite the efforts to try to arrive at a resolution that was acceptable to the Defendant, Watch Tower, and to the Plaintiffs, Miss Bean and Miss Smith, no agreement was reached. [38] The Defendant’s willingness to agree to a dismissal of the Plaintiffs’ claims was premised on both Plaintiffs agreeing to forfeit the money paid into Court as security for costs and for each of them to sign a non-disclosure agreement. [39] Counsel for Watch Tower consistently referred to the Plaintiffs in the plural. Not only is this seen in the various emails sent by them to counsel for the Plaintiffs, it is also evident in the emails sent by the latter to the former. It is also apparent from reading the proposed clause which Watch Tower’s counsel insisted on being included in any agreement that would allow the Plaintiffs’ action to be dismissed without costs. [40] Counsel for the Plaintiffs suggested in his email to Watch Tower’s lawyer, sent on November 5, 2025 that: If your client wanted to take the very unusual step of considering these two independent parties as a joint unit, it ought to have expressly stated such in settlement discussions. It did not. This cuts both ways. One could argue that it was equally incumbent on counsel for the Plaintiffs to have pointed this out in the emails he sent to opposing counsel but did not do so. [41] To use the words of Rothstein, J. in Sattva Capital Corp. v. Creston Moly Corp., supra, “…a practical common-sense approach … to determine the intent of the parties…” leads to the logical conclusion that no agreement was made to settle the matter without cost consequences. The offer to settle was never open for acceptance to one or the other of the Plaintiffs individually. It was only available if both Plaintiffs agreed to the proposed terms. [42] The last minute effort by counsel for the Plaintiffs to try to make Watch Tower’s offer to settle binding by having only one of the Plaintiffs agree to its proposed terms fails. [43] To be binding, there must be an agreement between the parties as to all essential terms. One of the essential terms insisted on by Watch Tower’s counsel was that both Plaintiffs had to agree to the terms of settlement. [44] The motion to enforce the terms of settlement is denied. [45] I will leave it to counsel to try to agree on costs of this motion, failing which they will have thirty (30) calendar days from the date of release of this decision to file further written submissions for the Court to decide. McDougall, J.