Hua v. Optimum West Insurance Co., 2005 BCCA 123

• Judge: Rowles, Donald and Huddart, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: November 12, 2004
• Jurisdiction: British Columbia
• Citations: 2005 BCCA 123;(2005), 209 B.C.A.C. 199 (CA)

Hua v. Optimum West Ins. (2005), 209 B.C.A.C. 199 (CA);

    345 W.A.C. 199

MLB headnote and full text

Temp. Cite: [2005] B.C.A.C. TBEd. MR.024

Mung Ngoc Hua (respondent/plaintiff) v. Optimum West Insurance Company (appellant/defendant)

(CA031401; 2005 BCCA 123)

Indexed As: Hua v. Optimum West Insurance Co.

British Columbia Court of Appeal

Rowles, Donald and Huddart, JJ.A.

March 4, 2005.

Summary:

An insured's house was damaged by fire. The insurer argued that since the insured had failed to comply with a requirement of his insurance policy that repair or replacement of damaged buildings be completed within 180 days, he was not entitled to the replacement cost (only actual cost). In a summary trial, the trial judge granted the insured relief from forfeiture under s. 10 of the Insurance Act and awarded the insured the replacement cost of the house. The insurer appealed.

The British Columbia Court of Appeal dismissed the appeal.

Insurance - Topic 3137

Payment of insurance proceeds - Actions - Relief from forfeiture - When available - [See Insurance - Topic 3140 ].

Insurance - Topic 3140

Payment of insurance proceeds - Actions - Relief from forfeiture - Imperfect compliance with statutory conditions - Limitation period - An insured's house was damaged by fire - The insurer argued that since the insured had failed to comply with a requirement of his insurance policy that repair or replacement of damaged buildings be completed within 180 days (replacement cost endorsement), he was not entitled to the replacement cost, but only actual cost (a difference of $33,700) - A trial judge granted the insured relief from forfeiture under s. 10 of the Insurance Act and awarded the insured the replacement cost of the house - The British Columbia Court of Appeal dismissed the insurer's appeal - The trial judge did not err in finding that the insured's breach of the 180-day term amounted to imperfect compliance (not non-compliance) - The other conditions for granting relief under s. 10 (imperfect compliance related to a thing required to be done or omitted by the insured about the loss, a consequent forfeiture or avoidance of the insurance occurred, inequitable that the insurance be forfeited) were also met - See paragraphs 34 to 53.

Practice - Topic 5255.7

Trials - General - Summary trials - Appeals - An appellant argued that, in the case of summary trials held pursuant to Rule 18A of the Rules of Court and in which the evidence was documentary and on affidavits, the Court of Appeal had a greater latitude to differ from the trial judge's findings of fact than it would where the trial involved viva voce testimony with conflicts in the evidence and especially where credibility of the witnesses was an issue - The British Columbia Court of Appeal rejected the argument - The court stated that it appeared that the standard of review, including the findings of the trial judge as to credibility gleaned from the material available on the summary trial, required that the appellant demonstrate that the conclusion of the trial judge could not reasonably be supported by the evidence - See paragraphs 14 to 24.

Cases Noticed:

Orangeville Raceway Ltd. v. Wood Gundy Inc. et al. (1995), 59 B.C.A.C. 241; 98 W.A.C. 241; 6 B.C.L.R.(3d) 391; 40 C.P.C.(3d) 226 (C.A.), refd to. [para. 15].

Colliers Maccaulay Nicolls Inc. v. Clarke, [1989] B.C.J. No. 2455 (C.A.), refd to. [para. 17].

Degelder Construction Co. v. Dancorp Developments Ltd. et al. (1996), 73 B.C.A.C. 45; 120 W.A.C. 45; 21 B.C.L.R.(3d) 112 (C.A.), affd. [1998] 3 S.C.R. 90; 231 N.R. 122; 113 B.C.A.C. 1; 184 W.A.C. 1; 58 B.C.L.R.(3d) 1, refd to. [para. 18].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 20].

Elance Steel Fabricating Co. v. Falk Brothers Industries Ltd. and Canadian Surety Co., [1989] 2 S.C.R. 778; 99 N.R. 228; 80 Sask.R. 22; 62 D.L.R.(4th) 236, refd to. [para. 35].

Holme Estate v. Unum Life Insurance Co. of America (2000), 145 B.C.A.C. 232; 237 W.A.C. 232; 83 B.C.L.R.(3d) 108; 2000 BCCA 627, refd to. [para. 41].

Rolls-Royce Industries (Canada) Inc. et al. v. Commercial Union Assurance Co. of Canada et al. (1996), 8 O.T.C. 128; 8 C.P.C.(4th) 164 (Gen. Div.), refd to. [para. 42].

Petersen v. Bannon et al. (1993), 37 B.C.A.C. 26; 60 W.A.C. 26; 84 B.C.L.R.(2d) 350; 107 D.L.R.(4th) 616 (C.A.), refd to. [para. 44].

Counsel:

I.D. Mackie, for the appellant;

S.A. Read, for the respondent.

This appeal was heard at Vancouver, British Columbia, on November 12, 2004, by Rowles, Donald and Huddart, JJ.A., of the British Columbia Court of Appeal. The following decision of the court was delivered by Rowles, J.A., on March 4, 2005.