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  • Glenn Veale: Formal settlement offer revoked by newer "informal" offer

    by User Not Found | Feb 28, 2014

    As counsel, are you confident in knowing when an offer to settle is no longer on the table? What conduct by one or the other party will be enough to revoke it? Although Rule 9-1(8) of the British Columbia Supreme Court Civil Rules states that an offer to settle does not expire by reason that a counter offer is made, it does not specifically address the issue of revocation of a "formal" settlement offer when an "informal" settlement offer is made by the same party. When this occurs, is there a revocation of the original formal offer?

    Such an issue was addressed in Arsenvoski v. Boden, 2014 BCSC 199, where the Plaintiff was hurt in a motor vehicle collision, and consequently advanced a claim. At one point during litigation proceedings, ICBC’S lawyer made a formal offer to settle, which was rejected. Counsel for the Plaintiff then made a formal offer to settle, which was rejected, which was later followed by another formal offer to settle by the Plaintiff in a lower amount, which was again rejected.

    Counsel for the Defendant then made an informal offer to settle for a consent dismissal order in exchange for a waiver of the Defendant‘s costs, which was not surprisingly rejected. The Plaintiff then attempted to accept the Defendant‘s first formal offer, which was rejected by counsel for the Defendant. The Plaintiff brought an application to enforce the Plaintiff‘s purported acceptance of the original formal settlement offer, however the Court ruled that the original formal settlement offer had indeed been revoked by the Defendant‘s subsequent informal offer.

    In essence, the Court ruled that in the absence of language in Rule 9-1 with respect to revocation of a formal settlement offer, the common law would apply.

    [15] … I agree with the following statement of the law by Wilson J. in Sidhu v. Sekhon, [1997] B.C.J. No. 102 (S.C.) at para. 8:

    I think interpretation of the rule contemplates the application of principles of contract law. And that those principles must be implemented before resort is had to policy considerations. In my view, those principles establish a number of precepts. First, an offer may be withdrawn before acceptance. It is sufficient for that purpose, if the offeree has actual knowledge that the offeror has done some act inconsistent with the continuance of the offer. Further, the addition of a new term or condition, to an earlier offer, before acceptance, is the withdrawal of the earlier offer, and the submission of a new offer, of which the new condition or term is a part. From the time the new condition is submitted, the earlier offer is withdrawn, and is no longer open to acceptance or rejection, by the party to whom it was presented. Finally, there can be only one offer outstanding at a time. A later offer to the same offeree, on the same subject matter, has the effect of cancelling the prior offer.

    The case is significant in that Rule 9-1 is different from its predecessor Rule 37 in the sense that, with the latter, it may have been possible that a formal settlement offer would not have been revoked by an informal settlement offer. The Court made it clear, however, that this is no longer the case with respect to Rule 9-1.

    In light of judicial pronouncement on this issue, counsel would be wise to note the distinction between the old and new Rules, and not automatically assume that the settlement and negotiation process is so liberal as to permit formal and informal settlement offers to exist at the same time.

  • Rose Keith: Rule 7-6 medical examinations within Rule 11-6 limits, keeping fresh evidence out less than 84 days before trial

    by Nathaniel Russell | Aug 22, 2013

    Yesterday the British Columbia Supreme Court released judgment in Jackson v. Yusishen, 2013 BCSC 1522, following an application by ICBC's lawyer to have a Plaintiff in a motor vehicle accident case undergo a functional capacity evaluation by an occupational therapist. The application was necessitated due to the closeness of the trial date. Under the Supreme Court Civil Rules ICBC is able to force a Plaintiff to undergo a medical examination with a doctor of their choice. Sometimes they are allowed more than one examination. Whether they are allowed more than one examination under Rule 7-6 depends on whether ICBC is able to satisfy a judge that a second or third examination is necessary to "level the playing field". Yesterday's decision considered a second issue, whether an examination will be ordered when ICBC will not be able to comply with the deadline under Rule 11-6(3) for serving an opinion 84 days or less prior to trial.

    In my practice I often see requests from ICBC to have my client examined by an expert within the 84 day window. These requests are couched in terms attempting to cast the request as necessary to respond to evidence that I have presented on behalf of a client. Responsive evidence can be served up to 42 days prior to trial pursuant to Rule 11-6(4). Yesterday's decision showed how judge's often see through this attempt to recast the terms of the examination and obtain fresh evidence that would not be admissible under our rules. The application was dismissed as being unnecessary to level the playing field. As well Mr. Justice Barrow was influenced by the lack of evidence presented as to why it would be necessary for the occupational therapist to examine the Plaintiff in order to be able to provide a responsive report.

    The decision assists in providing Plaintiff's with an argument to ensure fairness in the litigation process. Specifically, if they are required to serve opinion evidence 84 days prior to trial, so should ICBC. ICBC should not be allowed the leeway to re-characterize their evidence as responsive to enable them to get around the 84 day deadline. This decision follows a long line of similar decisions (Luedecke v. Hillman, 2010 BCSC 1538, Labrecque v. Tyler, 2011 BCSC 429) in which the court is seen to be getting progressively more stringent on considerations of whether an actual examination is necessary to enable an expert to provide a responsive report.

  • Erik Magraken: Landlord found vicariously liable for assault by their relative

    by CLBC Administrator | May 10, 2012

    Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, dealing with the issue of vicarious liability following an assault.

    In this week’s case, Van Hartevelt v. Grewal2012 BCSC 658, the Plaintiff was involved in a physical altercation with the Defendant R. Grewal.  While there were competing versions of what occurred Mr. Justice Savage found that this Defendant pummelled the Plaintiff "with his fists…sending him to the ground” then “kicked (the Plaintiff) forcefully in the ribs as he lay on the floor".

    The Defendant was found liable and ordered to pay over $65,000 in damages including punitive damages.

    The Defendant was the son of the owners of the Rani Lynn Apartments which is where the altercation took place. The Plaintiff was a tenant there. The Plaintiff also sued the owners arguing they ought to be found vicariously liable for the assault. Mr. Justice Savage agreed and found the owners jointly and severally liable (except for the punitive damage award). In doing so the Court provided the following reasons illustrating that vicarious liability can flow beyond a formal employer/employee relation:

    [52] I accept Mr. G. Grewal’s evidence that he did not charge family members rent while they were living at the Randi Lynn. However, he did not charge rent to Mr. R. Grewal, and at other times other relatives living at the Randi Lynn on the expectation that they would perform services for him at the apartment…

    [54] …As a family member receiving free rent Mr. R. Grewal was beholden to the Second Named Defendants and was expected to do their bidding at the Randi Lynn…

    [64] While it is true that independent contractors will not generally attract such liability and that employees generally will, it is not the case that the employer/employee relationship is the only one that can attract vicarious liability…

    [65] Therefore, the main considerations in the present case are whether the relationship was sufficiently close to justify the imposition of liability, whether the tort was sufficiently connected to the assigned tasks of the tortfeasor to be regarded as the materialization of the risks created by the enterprise, and whether the imposition of liability would satisfy the policy goals outlined in Bazley. I answer all of these questions in the affirmative.

    [66] The reason that employers are often found to be vicariously liable whereas those hiring independent contractors are not is that in the former case, the employer has created the risk and is in the best position to mitigate it. Thus, it is both efficient and fair to impose vicarious liability. In the present case, although it was not a typical employment relationship, the Second Named Defendants created the risk associated with Mr. R. Grewal, were or should have been aware of the risk, and were in the best position to mitigate this risk.

    [67] The Second Named Defendants were aware of the violent history of Mr. R. Grewal and were aware of the recent confrontation between Mr. R. Grewal and Mr. Van Hartevelt; a confrontation that arose in the context of Mr. R. Grewal’s role as an on-site owner representative. As such, the risk of violent confrontations initiated by Mr. R. Grewal was caused by the enterprise of the Second Named Defendants and they were in a unique position to mitigate this risk. They were specifically made aware of the risk by Mr. Van Hartevelt’s letter of July 12, 2006. The fact that the Second Named Defendants did not take steps to mitigate the risk renders them blameworthy.

    [68] There is also the assertion, albeit made by Mrs. R. Grewal, that the ‘owners’ of the building were entitled to enter Mr. Hartevelt’s suite. This was made in the presence of Mr. R. Grewal. Mr. R. Grewal, rather than correcting this misapprehension, schooled as he was in tenancy matters, remained and the events followed.

    [69] In my opinion there is a sufficiently close relationship to justify the imposition of vicarious liability in this case.

    Reposted with permission. The original post appeared on Erik Magraken's blog, www.bc-injury-law.com/blog, on May 9, 2012.

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