Loft v. Nat et al., (2015) 377 B.C.A.C. 224 (CA)

• Judge: D. Smith, Willcock and Savage, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: September 09, 2015
• Jurisdiction: British Columbia
• Citations: (2015), 377 B.C.A.C. 224 (CA);2015 BCCA 418

Loft v. Nat (2015), 377 B.C.A.C. 224 (CA);

    648 W.A.C. 224

MLB headnote and full text

Temp. Cite: [2015] B.C.A.C. TBEd. OC.017

Glen Loft (appellant/plaintiff) v. Bajinder Singh Nat and Rajinder Sandhu (respondents/defendants) and The Director of Maintenance Enforcement (intervenor)

(CA42570)

Glenn Loft (respondent/plaintiff) v. Bajinder Singh Nat and Rajinder Sandhu (appellants/defendants) and The Director of Maintenance Enforcement (intervenor)

(CA42616)

(2015 BCCA 418)

Indexed As: Loft v. Nat et al.

British Columbia Court of Appeal

D. Smith, Willcock and Savage, JJ.A.

October 6, 2015.

Summary:

Loft sued for damages for injuries suffered in a motor vehicle accident. Liability was admitted. Loft sought $100,000 to $150,000 for general damages, $450,000 to $600,000 for net past wage loss, $1,200,000 to $2,200,000 for future loss of earnings, $17,220.34 for special damages and $15,000 for future cost of care.

The British Columbia Supreme Court, in a decision reported at [2013] B.C.T.C. Uned. 1568, concluded that the accident caused Loft to suffer soft tissue injuries involving his cervical, thoracic and lumbar spine. The court accepted that Loft had a pre-existing degenerative spinal disc disease that was likely exacerbated by the accident. The court rejected Loft's claims that his emotional condition, psychiatric problems and lapse back to his cocaine addiction were caused by the accident. The court concluded that Loft had substantially recovered from his injuries within 18-24 months. The court awarded Loft $40,000 damages for pain and suffering; $1,900 for special damages and $21,000 for net past wage loss, but denied relief for future loss of earnings and future care. The court awarded the defendants the costs of the trial. Loft appealed the damage award and the costs award.

The British Columbia Court of Appeal, in a decision reported at 353 B.C.A.C. 53; 603 W.A.C. 53, dismissed the appeal from the damage award, allowed the costs appeal and referred the matter of costs back to the trial court (Loft #1). The trial court's stated reason for awarding costs to the defendants was that they were largely successful in all areas of the claim. That decision was wrong in principle and could not stand. At the costs rehearing, the defendants sought double costs from the date of one or the other of their two formal offers to settle on the basis that Loft should have reasonably accepted the offers. Loft asserted that he could not have accepted the offers due to a condition attached to the offers and the circumstance in which the offers were made (shortly before the trial was scheduled to commence).

The British Columbia Supreme Court, in a decision reported at [2015] B.C.T.C. Uned. 198, refused to award costs to either party as neither had achieved substantial success and the offers to settle were not ones that ought reasonably to have been accepted by Loft. The offers to settle could not reasonably have been accepted because of (1) the inclusion of a term that the Insurance Corporation for British Columbia (ICBC) was obligated under a Notice of Attachment to pay support arrears to the Family Maintenance Enforcement Program (FMEP) before paying Loft, which term was invalid given that it was the defendants and not ICBC who were indebted to Loft; and (2) the timing of the offers and Loft's personal circumstances (he had been involuntarily hospitalized under the Mental Health Act) were such that he was not in a position to properly consider the offers. Loft appealed, asserting that based on the general rule that costs follow the event, the trial judge erred in refusing to award him, as the successful party, costs of the action. The defendants appealed, asserting that the judge erred in finding that their formal offers to settle were ones that ought not reasonably to have been accepted by Loft. As the offers to settle expressly stated that they rescinded any earlier one, it was the reasonableness of the defendants' second offer to settle that was at issue.

The British Columbia Court of Appeal held that Loft, as found in Loft #1, was the successful party. Accordingly, the court allowed Loft's appeal and granted him costs of the action subject to the result in the defendants' appeal. With respect to the defendants' appeal, the trial judge erred in finding that the offer to settle's reference to ICBC's obligation to remit settlement monies in the amount allegedly owed by Loft for support arrears to FMEP rendered the offer not one that Loft ought reasonably to have accepted. ICBC was a debtor to Loft under s. 15(1) of the Family Maintenance Enforcement Act by operation of Loft's legal right to receive the settlement funds from ICBC, as well as FMEP's statutory right to sue ICBC for the payment of those funds if ICBC failed to remit them to FMEP under the Notice of Attachment. However, the court dismissed the defendants' appeal as Loft's personal circumstance at the time of the offer supported the judge's finding.

Family Law - Topic 2536

Maintenance of wives and children - Enforcement - Orders - Attachment - Statutory - See paragraphs 30 to 47.

Practice - Topic 7020

Costs - Party and party costs - Entitlement to - Successful party - General principles - See paragraphs 30 to 48.

Practice - Topic 7241

Costs - Party and party costs - Offers to settle - General - What constitutes and validity - See paragraphs 30 to 48.

Practice - Topic 7242.1

Costs - Party and party costs - Offers to settle - Grounds for denying double or substantial indemnity costs - See paragraph 13.

Practice - Topic 7247

Costs - Party and party costs - Offers to settle - Costs to unsuccessful defendant - See paragraph 13.

Practice - Topic 9012

Appeals - Restrictions on argument on appeal - Issues or points not previously raised - See paragraphs 26 and 28.

Cases Noticed:

C.P. v. RBC Life Insurance Co. (2015), 366 B.C.A.C. 207; 629 W.A.C. 207; 2015 BCCA 30, refd to. [para. 13].

Hamilton v. Open Window Bakery Ltd. et al., [2004] 1 S.C.R. 303; 316 N.R. 265; 184 O.A.C. 209; 2004 SCC 9, refd to. [para. 23].

Sutherland et al. v. Canada (Attorney General) et al. (2008), 250 B.C.A.C. 260; 416 W.A.C. 260; 2008 BCCA 27, refd to. [para. 25].

Lewis v. Lehigh Northwest Cement Ltd. (2009), 277 B.C.A.C. 1; 469 W.A.C. 1; 2009 BCCA 424, refd to. [para. 25].

R. v. Winfield (P.A.) (2009), 273 B.C.A.C. 152; 461 W.A.C. 152; 2009 YKCA 9, refd to. [para. 27].

Ulmer v. British Columbia Society for the Prevention of Cruelty to Animals (2010), 295 B.C.A.C. 282; 501 W.A.C. 282; 2010 BCCA 519, refd to. [para. 27].

Pinto v. Revelstoke Mountain Resort Limited Partnership (2011), 304 B.C.A.C. 193; 513 W.A.C. 193; 2011 BCCA 210, refd to. [para. 27].

Anderson v. Routbard (2007), 239 B.C.A.C. 98; 396 W.A.C. 98; 2007 BCCA 193, refd to. [para. 27].

Director of Maintenance Enforcement (B.C.) v. I.W.A. - Forest Industry Pension Plan (1991), 7 B.C.A.C. 117; 15 W.A.C. 117; 61 B.C.L.R.(2d) 264 (C.A.), refd to. [para. 46].

Statutes Noticed:

Family Maintenance Enforcement Act, R.S.B.C. 1996, c. 127, sect. 15(1) [para. 36]; sect. 15(6) [para. 38]; sect. 16(3) [para. 39].

Insurance (Vehicle) Act, R.S.B.C. 1996, c. 231, sect. 76(1) [para. 40].

Counsel:

D.O. Shane and A. Pang, for G. Loft;

L.J. Mackoff and J. Lord, for B. Nat and R. Sandhu;

A. Accettura, for the intervenor.

These appeals were heard at Vancouver, British Columbia, on September 9, 2015, by D. Smith, Willcock, and Savage, JJ.A., of the British Columbia Court of Appeal. D. Smith, J.A., delivered the following reasons for judgment on October 6, 2015.