Date Issued: March 18, 2022

File: SC-2021-006098

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Adams v. Crippen, 2022 BCCRT 304

Between:

SHAUNA ADAMS

Applicant

And:

CRAIG CRIPPEN (Doing Business As DERMMEDICA)

Respondent

REASONS FOR DECISION
Tribunal Member:	Eric Regehr

INTRODUCTION

1.      This dispute is about whether the applicant, Shauna Adams, and the respondent, Craig Crippen, have a binding settlement agreement. Dr. Crippen is a dermatologist who does business as DermMedica. He gave Ms. Adams Botox treatment. Ms. Adams was disappointed with the results and DermMedica offered her a $3,581.30 refund. Ms. Adams says that she accepted the offer, so the settlement was binding. She asks for an order that DermMedica pay her $3,581.30.

2.      DermMedica says that Ms. Adams never accepted the refund offer. DermMedica says that she counter offered for an additional $1,000, which DermMedica rejected. So, DermMedica says there was no settlement agreement. DermMedica asks me to dismiss her claim.

3.      The parties are each self-represented.

JURISDICTION AND PROCEDURE

4.      These are the formal written reasons of the Civil Resolution Tribunal (CRT). The CRT has jurisdiction over small claims brought under section 118 of the Civil Resolution Tribunal Act (CRTA). Section 2 of the CRTA states that the CRT’s mandate is to provide dispute resolution services accessibly, quickly, economically, informally, and flexibly. In resolving disputes, the CRT must apply principles of law and fairness, and recognize any relationships between the dispute’s parties that will likely continue after the CRT process has ended.

5.     Section 39 of the CRTA says the CRT has discretion to decide the format of the hearing, including by writing, telephone, videoconferencing, email, or a combination of these. In some respects, both parties of this dispute call into question the credibility, or truthfulness, of the other. In the circumstances of this dispute, I find that I am properly able to assess and weigh the evidence and submissions before me. I note the decision Yas v. Pope, 2018 BCSC 282, in which the court recognized that oral hearings are not necessarily required where credibility is in issue. Bearing in mind the CRT’s mandate that includes proportionality and a speedy resolution of disputes, I decided to hear this dispute through written submissions.

6.      Section 42 of the CRTA says the CRT may accept as evidence information that it considers relevant, necessary and appropriate, whether or not the information would be admissible in a court of law. The CRT may also ask questions of the parties and witnesses and inform itself in any other way it considers appropriate.

7.      Where permitted by section 118 of the CRTA, in resolving this dispute the CRT may order a party to pay money or to do or stop doing something. The CRT’s order may include any terms or conditions the CRT considers appropriate.

ISSUE

8.      The issue in this dispute is whether the parties have a binding settlement agreement. To determine this, I must answer the following questions:

a.    Did the parties agree to settle Ms. Adams’s claim?

b.    If so, did Ms. Adams repudiate the settlement agreement?

EVIDENCE AND ANALYSIS

9.      In a civil claim such as this, Ms. Adams as the applicant must prove her case on a balance of probabilities, which means “more likely than not”. While I have read all the parties’ evidence and submissions, I only refer to what is necessary to explain my decision.

10.   I note at the outset that Ms. Adams only claims a refund based on the alleged settlement agreement. She does not claim damages from DermMedica for negligence or breach of contract. So, I find that the issue of whether DermMedica performed the services in a reasonably competent manner is not before me.

11.   Most of the facts are undisputed. Ms. Adams attended DermMedica for Botox injections in her face on October 24, 2019. Dr. Crippen performed the work. Ms. Adams emailed DermMedica’s staff several times over the following 2 weeks, unhappy with the results. On November 6, 2019, Ms. Adams wrote that she would not sue DermMedica if she received “a full refund and compensation for damages”.

12.   Ms. Adams met with DermMedica’s Director of Operations, CC, on November 7, 2019, at DermMedica’s office. The parties dispute exactly what happened at that meeting. Ms. Adams says that the parties agreed to a settlement that Ms. Adams would get a full refund and sign a release. She says she did not sign the release at the meeting because she wanted to review it first. She says she planned to return to DermMedica later that day to pick up the cheque but was surprised by the scope of the release once she had a chance to read it.

13.   DermMedica says that Ms. Adams did not accept the refund offer and wanted to continue the discussion later that day. However, DermMedica did not provide a statement from CC even though the details of CC’s conversation with Ms. Adams were clearly central to this dispute. I address this issue more below.

14.   Later that day, a DermMedica employee, D, emailed CC that Ms. Adams had called to say she would not be able to return that day because she had been referred to another doctor.

15.   CC then emailed Ms. Adams that they understood that Ms. Adams would be “unable to return to the clinic to pick up the cheque today”. CC offered to provide an e-transfer instead if Ms. Adams emailed a signed copy of the release.

16.   Ms. Adams responded that she wanted to get a second opinion “before I wave my rights by excepting your offer” (reproduced as written). She says she wanted to make sure that she would not suffer any permanent issues before agreeing to the release. These email exchanges were all on November 7, 2019.

17.   On November 22, 2019, Ms. Adams emailed CC that she had been on vacation but wanted to “confirm” that DermMedica would e-transfer her the $3,581.30 refund if she provided the signed release.

18.   Ms. Adams emailed again on November 26, 2019, having not heard back. She said that her issues with the procedure had not resolved. She said that she was prepared to settle for a refund plus $1,000 compensation.

19.   On November 28, 2019, DermMedica’s lawyer wrote to Ms. Adams rejecting her “counteroffer”. Ms. Adams later asked if the original refund offer could be put back on the table, but DermMedica said no.

20.   As DermMedica points out, creating a settlement agreement is no different than creating any other contract. There must be an offer and acceptance of that offer. In the context of a settlement agreement, there must be evidence that the parties agreed, without qualification, to the essential terms of a settlement. At this point, the settlement agreement is binding even though the parties may still need to work out details like the terms of a release. See Fieguth v. Acklands Ltd., 1989 CanLII 2744 (BC CA), at paragraphs 35 and 36 and Salminen v. Garvie, 2011 BCSC 339, at paragraphs 24 to 27.

21.   So, did the parties agree to settle Ms. Adams’s claim on November 7, 2019, as Ms. Adams says? I find that they likely did. I say this for 2 reasons. First, as mentioned above, there is no direct evidence from CC to contradict Ms. Adams account of that meeting. More importantly, I find that DermMedica’s emails after that meeting are more consistent with Ms. Adams’s contention that they had reached an agreement. First, D emailed CC about when Ms. Adams would be able to “pick up her cheque”. Later that day, CC emailed Ms. Adams about the possibility of an e-transfer instead. Neither of these emails, one of which was an internal DermMedica email, suggest any uncertainty about whether there was an agreement. They are just about fulfilling the agreement’s terms.

22.   I recognize that Ms. Adams’s later email from November 7, 2019, could be read as suggesting that Ms. Adams had not yet accepted DermMedica’s offer. I do not read it that way. Given the context of DermMedica’s earlier emails, I find that Ms. Adams’s later email likely reflects her uncertainty about the scope of the proposed release. As mentioned above, parties can reach a binding settlement before agreeing to the terms of a release. So, I find that on November 7, 2019, the parties made a binding settlement agreement.

23.   With that, the question turns to what effect, if any, Ms. Adams’s November 26, 2019 demand for an additional $1,000 had on the settlement agreement. First, I disagree with DermMedica that the $1,000 demand was a “counteroffer”. I say this because at this point the parties had a binding settlement agreement, so they were done negotiating.

24.   Rather, I find that the question is whether by demanding an additional $1,000, Ms. Adams repudiated the settlement agreement. Repudiation occurs when a party indicates to the other party that they no longer intend to follow through on a contract. If a party repudiates a contract, the other party is entitled to accept the repudiation and terminate the contract. A party’s subjective intentions are not relevant in determining whether they have repudiated a contract. The question is whether an objective bystander would consider their words or actions to show that the party rejected their obligations under the contract. In the context of settlement agreements, asking for additional or better terms may amount to repudiation. For example, if a party demands a better deal in a way that shows they are rejecting a previously agreed settlement, the demand is a repudiation of the settlement agreement. See Salminen, at paragraphs 28 to 38.

25.   I find that this is what happened here. By demanding an additional $1,000, I find that Ms. Adams’s conduct indicated that she rejected the settlement agreement. It may be that Ms. Adams subjectively did not intend to repudiate the settlement agreement, but again this does not matter. I find that an objective bystander would consider her demand for more money to be a repudiation of the settlement agreement.

26.   I find that by rejecting Ms. Adams’s demand for an additional $1,000, DermMedica accepted her repudiation. This means that both parties were relieved of further performance of the settlement agreement. It follows that the settlement agreement is no longer binding on DermMedica. Because the existence of a settlement agreement was the only basis for Ms. Adams’s refund claim, I find that her claim must be dismissed.

27.   Under section 49 of the CRTA and CRT rules, the CRT will generally order an unsuccessful party to reimburse a successful party for CRT fees and reasonable dispute-related expenses. Ms. Adams was unsuccessful, so I dismiss her claim for CRT fees and dispute-related expenses. DermMedica did not claim any dispute-related expenses or pay any CRT fees.

ORDERS

28.   I dismiss Ms. Adams’s claims, and this dispute.