COURT OF APPEAL FOR BRITISH COLUMBIA
Flint v. Taggar,
2008 BCCA 504
Taggar, and Khalis Transport Inc.,
Sarbjit Singh Dult and Karamjit Dult
The Honourable Chief Justice Finch
The Honourable Mr. Justice Lowry
The Honourable Madam Justice Smith
Oral Reasons for Judgment
Counsel for the Appellants
Counsel for the Respondent
Place and Date of Hearing:
Vancouver, British Columbia
26 November 2008
Place and Date of Judgment: Vancouver, British Columbia
28 November 2008
 FINCH, C.J.B.C.: The defendants appeal from the order of the British Columbia Supreme Court pronounced in chambers on 3 December 2007 and entered on 25 November 2008, holding that the defendants are bound by a settlement agreement to pay $50,000 in respect of the plaintiff’s claim for damages, and referring the matter of costs “to the trial judge”.
 On 3 December 2007 the defendants applied to reopen the judgment on the basis that the judge decided the application on a ground that had not been addressed in the evidence. In further reasons for judgment pronounced 9 January 2008 the judge dismissed the application to reopen.
 On this appeal, the defendants contend that there was no agreement between the parties, and that the plaintiff’s application to enforce the settlement should be dismissed.
 In the litigation, the plaintiff claimed against the defendants for damages the plaintiff alleged that she suffered in a motor vehicle accident on 5 November 2001. The action was set for trial on 30 October 2006. On 6 September 2006 the parties entered into an “agreement to mediate” it provides in part:
9. It is agreed that the mediation conference is a settlement negotiation and is inadmissible in any further litigation or arbitration to the extent allowed by law. The parties to the dispute agree that the mediator will not be subpoenaed or otherwise required to testify or produce records or notes in any future proceedings.
No transcript will be kept of the mediation conference.
10. It is agreed that the parties shall not rely on or introduce as evidence in subsequent arbitral or judicial proceedings:
A. any views expressed, or suggestions made, by the other party in respect of the possible settlement of the dispute.
B. any admission made by the other party in the course of the mediation.
C. the fact that the other party had indicated a willingness to accept a proposal or recommendation for settlement made by the mediator.
 The parties attended a mediation session the same day. On the application to enforce the settlement, Ms. Flint swore an affidavit on 25 October 2006 which said in part:
4. The mediation ended abruptly. It was my understanding that the adjuster, Ms. Deering, had to leave due to some other commitment. It was my understanding that the defendants were still open to discuss matters but that the other obligation was pressing. I was also left with the understanding that their offer remained open to be accepted following the mediation.
5. On the advice of my lawyer I instructed him to make a formal offer to settle pursuant to Rule 37. This offer using Form 64 of the Supreme Court Rules was prepared and sent to the lawyers for the defendants on September 19, 2006. To my understanding no response or reply was received from the defendants to this offer. I understand that this is the only offer made on my behalf since the mediation.
6. During September and October 2006 I had further discussions with my lawyer indicating I did not want to undergo the emotional stress of a trial and that I wanted to settle, and that I was prepared to accept their offer. On the October 19th, 2006 I spoke with my lawyer during the day and again that evening and instructed my lawyer to accept the defendants’ offer to settle.
7. I understand that on the following day, October 20, 2006, as per my instructions my lawyer accepted the defendants’ offer in writing. Attached to this affidavit and marked Exhibit “A” is a copy of the letter accepting the offer. I am advised by my lawyer, and verily believe, that this letter was faxed to Mr. James on October 20, 2006.
 It is evident that the offer made on 6 September 2006 was not accepted by the plaintiff that day. The mediation session concluded with no agreement having been reached. The defendants’ offer was silent as to the time within which it might be accepted.
 On 20 October 2006 counsel for the plaintiff wrote to the defendants’ solicitor as follows:
I am instructed by my client to accept the offer advanced by Mr. James to settle the tort and Part 7 claims respecting the above noted collision on the basis of a payment by his client to the plaintiff of $50,000 plus party and party costs in the tort action.
 Counsel for the defence responded on 23 October 2006:
We (are) writing concerning the settlement discussions in this matter. We have instructions to offer to settle the claim as follows. The defendants are prepared to treat the offer of $50,000.00 at the mediation as a Formal Offer to Settle made at that time. What this means is that in the event the plaintiff accepts the offer of $50,000.00 she will get her costs up to the date of the mediation and the defendants will get their costs from the date of the mediation. This offer is meant to be in settlement of all of the plaintiff’s claims including those under Part 6 and 7.
 On 24 October 2006 counsel for the defendants sent a further letter:
Further to your e-mail of October 24, 2006, we confirm that an offer made at mediation, as with any other communication at mediation cannot be referred to outside of the mediation. An offer made at mediation is revoked at the end of the mediation. This is why counsel sometimes request that offers made at mediation remain open after mediation. In any event, after mediation your client countered the defendants’ offer which is a rejection of the defendants’ previous offer made at mediation. Thus there was no offer for you to accept.
My instructions are to revoke the offer the defendants made yesterday and to proceed to trial.
 The e-mail referred to in that letter is not in evidence before us.
 The chambers judge held that defence counsels use of the word “offer” in his letter of 23 October 2006 related only to the matter of costs. She held that the parties had reached an agreement on damages.
 The letter from plaintiff’s counsel of 20 October 2006 purporting to accept the defendants’ offer is premised on the footing that the offer made by the defendant in the mediation was open for acceptance some six weeks later. And, as is evident, the chambers judge took the same view.
 The defendants take the position that the offer to settle made during the mediation expired at the conclusion of the mediation session on 6 September 2006, or at most was open for acceptance within a reasonable time. It says the purported acceptance on 20 October 2006, 44 days after the offer was made and ten days before trial, was not a reasonable time.
 For reasons that are not clear, the defendants did not contend below that the plaintiff’s formal offer to settle on 19 September 2006 revoked the defendants’ offer made in the mediation. Although I consider there may have been considerable force in that position, it is not necessary to decide that issue, and I say no more about it.
 In my view, on the evidence presented in this rather unsatisfactory record, a settlement cannot be said to have been reached for two reasons. First, the offer made in mediation was not accepted within a reasonable time. Second, the terms of the purported settlement lacked certainty.
 What is a reasonable time is a question of fact. However, it is a question to which the learned chambers judge never directed her attention in either of the two sets of reasons she gave. In the absence of any express provision, a reasonable time for acceptance of the offer at mediation depended on all the circumstances. The mediation concluded with no agreement. The trial date was approaching. Both sides were no doubt preparing for trial and incurring the attendant costs. The reasonable observer would, if asked, have concluded that the time for acceptance of the offer, even if it continued after the mediation had ended, had gone by.
 Nor can the terms of the purported settlement be said to be certain. The offer at mediation was to pay $50,000 plus costs and disbursements. The letter of 20 October 2006 purported to accept an offer of $50,000 “plus party and party costs in the tort action”. The letter did not specify the date at which such costs were to be determined. It did not specify the amount of the costs, nor the manner in which they were to be determined. If the letter of 20 October 2006 can be said to have concluded an agreement, it was at best an agreement to agree.
 The learned chambers judge recognized this difficulty. She said:
It is apparent that the parties have not agreed upon the matter of costs.
 She then directed that the issue “be referred to the trial judge”. There was no trial, and there was no trial judge. Moreover, there was no order as to who should pay what costs, at what level, or for what period of time. None of the factors which might guide a judge in making a ruling on costs were known or knowable.
 Even if one were to read this direction as one for taxation of costs before the Registrar, there is nothing in the evidence to suggest that this was what either party intended, or the basis on which a Registrar could conduct a taxation.
 If there was any kind of an agreement reached, it was void for uncertainty and unenforceable. And in any event, the offer not having been accepted within a reasonable time, no agreement can be said to have been reached.
 I would allow the appeal with costs to the appellant in both this Court and the court below.
 LOWRY, J.A.: I agree.
 SMITH, J.A.: I agree.
 FINCH, C.J.B.C.: So ordered.
“The Honourable Chief Justice Finch”