IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation: Banerjee v. Bisset,

2009 BCSC 1808

2009 BCSC 1808 (CanLII)

Date: 20091106
Docket: S096406
Registry: Vancouver

Between:
Anand Banerjee
Plaintiff

And:

Anita Juliet Bisset

Defendant

Before: The Honourable Madam Justice Beames

Oral Reasons for Judgment

In Chambers

Counsel for the Plaintiff: A. Thiele

Counsel for the Defendant: E. Chapman

T. Brown

Place and Date of Hearing: Vancouver, B.C.

October 30, 2009

Place and Date of Judgment: Vancouver, B.C.

November 6, 2009
Banerjee v. Bisset Page 2

[1] THE COURT: The plaintiff and the defendant lived in a common law
relationship from 2001 to 2002, and then again, after approximately one year apart,
from 2003 until February 2009. They have one son who is now 6 years old.

2009 BCSC 1808 (CanLII)

[2] After the parties separated, they engaged in a collaborative law process. On
April 22, 2009, the parties, Deborah Brakeley and Ellen Shapiro, the latter two of
whom as I understand it are separation coaches, signed an agreement entitled,
“Collaborative Separation and Divorce Participation Agreement”. I will refer to that
agreement as the Brakeley Agreement.

[3] On May 20, 2009, the parties and their respective collaborative law lawyers,
Kallen Fong and Lisa Alexander, signed an agreement entitled, “Collaborative Law
Participation Agreement”, which I will refer to as the Alexander Agreement.

[4] On August 6, 2009, the parties and their lawyers had a lengthy four-way
meeting. On August 7, 2009, and then again on August 21, 2009, the defendant
gave notice, through her lawyer, that she was withdrawing from the collaborative law
process.

[5] Subsequently, the plaintiff commenced this action. On September 24, 2009,
the plaintiff’s counsel prepared a notice of motion, pursuant to Rule 18A, seeking a
declaration that the parties had entered into a valid and binding agreement on
August 6, 2009, dealing with all property and spousal support issues. The defendant
filed a notice of motion as well, seeking some procedural relief.

[6] The matter came before the court on October 2, 2009. Some procedural relief
was granted at that time with regard to the pleadings and with regard to the
exchange of Form 89 financial statements. The balance of the motions were
adjourned to October 26, and, if necessary, October 30, 2009, for hearing. On
October 13, 2009, the defendant prepared a second notice of motion seeking an
order that all or parts of the plaintiff’s Affidavit # 1, which was sworn on September
24, 2009, be struck, and directions regarding the implementation of the Alexander
Banerjee v. Bisset Page 3

Agreement be given, including whether evidence from, or derived from, the

collaborative counsel can be received or admitted.

[7] There was no judge available to hear this matter on October 26. On October

2009 BCSC 1808 (CanLII)

30, 2009, the parties appeared before me. It was agreed that I would hear only the
issue with regard to the admissibility of evidence, including all or parts of the
plaintiff’s affidavit, and also the affidavit evidence of Nancy Cameron with regard to
the collaborative law process and practice generally, which evidence is objected to
by counsel for the plaintiff. The plaintiff’s application for summary judgment was
adjourned generally, as I understand it, and the defendant’s notice of motion dated
October 1, 2009, to the extent, if at all, that it has not been dealt with in the past, will
be heard at some later time. It was not dealt with by the parties in their submissions
before me.

[8] In summary form, the defendant’s position is that pursuant to the collaborative
law agreements, the parties agreed that there would be no settlement concluded
unless it was put in writing. The defendant says that paragraphs 21 through 45 of the
plaintiff’s Affidavit # 1 are inadmissible because they make reference to matters
which are confidential pursuant to the parties’ collaborative law agreements;
because they contain reference to the negotiating positions taken by the parties
leading up to the alleged settlement contrary to the principles in Fraser v. Houston,
2005 BCSC 715 and Cadinha v. Chemar Corp., [1995] B.C.J. No. 755 (S.C.); and
because, in some instances, the plaintiff is providing hearsay evidence which is not
admissible on a summary trial.

[9] The plaintiff says that the parties did reach a settlement at the meeting of
August 6, 2009; that the collaborative law agreements do not preclude evidence to
prove, as one could in the case of an oral agreement to settle a litigation matter, that
an agreement had been reached; and that the plaintiff’s evidence should be
available to the court when the plaintiff’s Rule 18A application is heard. With regard
to the evidence of Ms. Cameron, the plaintiff says that it is not relevant or helpful
with regard to the issues between the two parties now before the court.
Banerjee v. Bisset Page 4

[10] I will deal first with Affidavit # 1 of Ms. Cameron. In my view, this case turns,
or will turn, on what transpired between the plaintiff and the defendant and their
counsel at the time, what the plaintiff and the defendant understood, and what the
plaintiff and the defendant agreed upon. It is not a case in which the collaborative

2009 BCSC 1808 (CanLII)

law process is on trial, nor a case which has the potential to “sound the death knell”
of the collaborative law process, as was argued before me. I do not consider the
evidence of Ms. Cameron with regard to the history of collaborative law, generally or
in Vancouver, the standards being adopted internationally for collaborative law,
standard collaborative participation agreements, or statutes being passed in other
jurisdictions with regard to collaborative law, to be necessary evidence, nor relevant
to the determination of the issues in this case.

[11] I turn now to the evidence of the plaintiff with regard to the parties’
negotiations, and particularly the events of August 6, 2009, on which date he alleges
an agreement was reached.

[12] It is clear that evidence of an alleged settlement agreement having been

reached by the parties or by their counsel is normally admissible, as are lawyers’
notes of the terms of purported agreements; see, for example, Frolick v. Frolick,
2007 BCSC 84; Baldissera v. Wing, 2000 BCSC 1788; Sekhon v. Khangura, 2009
BCSC 670; and Lunardi v. Lunardi, [1988] O.J. No. 1882. The issue in this case,
however, is whether the parties agreed that different rules would apply to their
negotiations, or, more properly, any settlements they may reach.

[13] The Brakeley Agreement contains the following provisions:

GOAL OF COLLABORATIVE SEPARATION & DIVORCE

The goal of Collaborative Separation & Divorce is to help the
separating/divorcing couple work successfully within the Collaborative Law
structure to achieve a positive resolution and minimize the negative
economic, social, and emotional consequences that families often experience
in the traditional adversarial separation and divorce process.

In order to accomplish this goal, three independent disciplines work together

as an interdisciplinary team to integrate the legal, emotional, and financial
aspects of separation/divorce.
Banerjee v. Bisset Page 5

CONFIDENTIALITY

1. Both Parties agree to sign confidentiality waivers with the

Collaborative Separation/Divorce Coaches to waive privilege with
each Collaborative lawyer or Financial Specialist involved in the
process...

2009 BCSC 1808 (CanLII)

2. All materials without these specific waivers remain closed and
confidential...unless there is an agreement, e.g., a Parenting Plan,
made between both parties that is signed, dated, and witnessed.

...

4. Should either [P]arty elect to move from the Collaborative Process

into a court process, all materials, including all content (both written
and oral) of coaching sessions, remain confidential and may not be
used in any court proceedings

ELECTION TO TERMINATE

If either Party decides that the Collaborative Separation/Divorce process is no

longer viable and elects to terminate the status of the case as a Collaborative
Separation/Divorce matter, s/he agrees, in writing, to immediately inform the
other Party, their respective Coaches and lawyers.

[14] There is no evidence before me to suggest that the Brakeley Agreement was
terminated at any time before the defendant gave notice in early and late August
2009 that she was withdrawing from the collaborative law process. The Brakeley
Agreement specifically contemplated that the parties would involve other
professionals, including lawyers, in their collaborative process.

[15] The Alexander Agreement contained the following terms:

1. Purpose
The primary goal of the Collaborative Law Process is to settle the outstanding
issues in a non-adversarial manner. The Parties aim to minimize, if not
eliminate, the negative economic, social and emotional consequences of
protracted litigation to themselves and their family. The Parties have retained
Collaborative lawyers to assist them in reaching this goal.
...
9. No Court Intervention
Unless otherwise agreed, prior to reaching final agreement on all issues, no
writ and statement of claim will be filed or served, nor will any other motion or
document be prepared or filed which would initiate court intervention.
...
Banerjee v. Bisset Page 6

11. Withdrawal of Party from Collaborative Law Process

If a Party decides to withdraw from the Collaborative Law Process, prompt
written notice shall be given to the other [P]arty through his or her lawyer.
Upon termination of the Collaborative Law Process by a Party or a lawyer,
there will be a thirty (30) day waiting period (unless there is an emergency)
before any court hearing, to permit the parties to retain new lawyers and

2009 BCSC 1808 (CanLII)

make an orderly transition. All temporary agreements will remain in full force
and effect during this period. The intent of this provision is to avoid surprise
and prejudice to the rights of the other Party. It is therefore mutually agreed
that either Party may bring this provision to the attention of the Court to
request a postponement of a hearing.
...
14. Confidentiality
All communications exchanged within the Collaborative Law Process will be
confidential and without prejudice. If subsequent litigation occurs, the Parties
mutually agree:
A. that neither Party will introduce as evidence in Court information
disclosed during the Collaborative Law Process for the purpose of reaching a
settlement, except documents otherwise compellable by law including any
sworn statements as to financial status made by the parties;
B. that neither Party will introduce as evidence in Court information
disclosed during the Collaborative Law Process with respect to either Parties’
[sic] behaviour or legal position with respect to settlement;
C. that neither Party will ask or subpoena either lawyer or any of the
Collaborative Professionals to Court to testify in any court proceedings, nor
bring on an application to discover either lawyer or any of the Collaborative
Professionals, with regard to matters disclosed during the Collaborative Law
Process;
D. that neither Party will require the production at any Court proceedings
of any notes, records, or documents in the lawyer’s possession or in the
possession of one of the Collaborative Professionals; and
the parties agree that these Guidelines with respect to confidentiality apply to
any subsequent litigation, arbitration, or other process for dispute resolution.
...
16. Enforceability of Agreements
In the event that the Parties require a temporary agreement during the
Collaborative Law Process, the agreement will be put in writing and signed by
the Parties and their lawyers. If either Party withdraws from the Collaborative
Law Process, the written agreement is enforceable and may be presented to
the [C]ourt as a basis for an Order, which the Court may make retroactive to
the date of the written agreement. Similarly, once a final agreement is signed,
if a Party should refuse to honour it, the final agreement may be presented to
the Court in any subsequent action.
Banerjee v. Bisset Page 7

[16] The plaintiff says that the Alexander Agreement does not expressly provide
that all agreements between the parties must be in writing and signed, dated, and
witnessed. He maintains that an agreement about financial and property matters
was reached on August 6, 2009, and that he should be able to give evidence,

2009 BCSC 1808 (CanLII)

including his lawyer’s handwritten notes and emails between the two lawyers, to
prove that agreement.

[17] While the Alexander Agreement is, regrettably, not as clear as it should be
with respect to the formal requirements of any agreements reached by the parties,
particularly given that one of the goals of such agreements is to avoid litigation, I am
satisfied that the whole of the agreement, read with its purpose in mind, means that
any and all evidence of the parties’ negotiations from the parties or their lawyers,
including any notes made by the parties or their lawyers, are protected by the
confidentiality provisions of the Alexander Agreement. Clause 16, although
inelegantly drafted, must be interpreted as requiring that any agreement, whether
temporary or final, must be put in writing before either party can enforce the
agreement.

[18] Although I do not find it necessary to rely upon the Brakeley Agreement to
assist in interpreting the Alexander Agreement, I would have had no hesitation in
doing so, given that both agreements were in place concurrently and each expressly
contemplated the involvement of other professionals, each of whom might
reasonably be expected to have complementary agreements executed.

[19] In choosing to participate in the collaborative law process, and signing the
Brakeley and Alexander Agreements, the parties agreed to have a confidential
process; they agreed to forego access to court unless either or both of them
withdrew from the collaborative law process; and they agreed that no agreements
would be enforceable unless they were agreements in writing. They also,
necessarily, agreed to forego disclosing negotiations which stopped short of a
written agreement for the purpose of trying to prove that an oral agreement was
Banerjee v. Bisset Page 8

made and should be enforced. In other words, they agreed to a different set of rules
than apply to normal litigation.

[20] Consequently, I will grant the relief sought in paragraph 1 of the defendant’s

2009 BCSC 1808 (CanLII)

notice of motion dated October 13, 2009. In the event the parties require any further
directions, as contemplated in paragraph 2 of the notice of motion, either counsel
may contact the Kelowna Supreme Court Schedulers to set up a telephone
conference with me. Unless otherwise directed, I will not require any formal
paperwork in that regard.

[21] With regard to costs, I am inclined to leave the costs to be dealt with by the
trial judge who will be in the best position to measure success overall, now that the
parties are in the litigation process arising as a result of the defendant’s unilateral
withdrawal from the collaborative law process. However, I am, if counsel think it is
appropriate, prepared to hear submissions that are intended to persuade me that my
initial view with respect to costs is not correct.

[SUBMISSIONS BY COUNSEL RE COSTS]

[22] THE COURT: With respect to the issue of costs, had particularly the
Alexander Agreement been clear, I am sure that the plaintiff, himself a lawyer, would
not have brought this application on. The fact that it was as contentious as it was is
an indication as to how it might have been interpreted differently by different parties.
Having heard your submission, Mr. Chapman, my view with respect to costs has not
changed, and so the costs will be left to be dealt with, if necessary, by the trial judge
if this matter proceeds to trial.

Beames J.