Court of Appeal Decision of the Week

Business-Related Losses & Foreseeability

Case: Singh v. Soper, 2017 BCCA 335

Keywords: Personal Injury; Business-Related Losses; Foreseeability; Workers Compensation Act, R.S.B.C. 1996, c. 492

Synopsis:

The parties are involved in a collision. The Appellant, Mr. Robert Timothy Soper, is driving a vehicle owned by the Appellant D&R Sand and Gravel Ltd. in the course of his employment. The Respondent, Mr. Surinda Singh, is driving a leased truck in the course of his business.

Mr. Singh applies for and receives benefits under the Workers Compensation Act, R.S.B.C. 1996, c. 492. He also sues the Appellants for damages related to a $40,000 payment in respect of the leased truck. (Note: The Court of Appeal referred to this payment as the “deposit”, to signify that the word as used by the Trial Judge below was a misnomer (see at para. 6)). The Appellants obtain a s. 257 certificate precluding an action for personal injury pursuant to s. 10(1) of the Workers Compensation Act.

In 2014, the Court of Appeal clarifies that Mr. Singh is not barred from maintaining an action for his business-related losses “that do not relate to personal injuries”. Mr. Singh continues his action for losses related to the “deposit” on the leased truck and is successful at trial. The Trial Judge awarded Mr. Singh $40,000 on the basis it was reasonably foreseeable the “deposit” could be terminated in the event of an accident.

The Court of Appeal allows the Appellants’ appeal. The loss is not recoverable by virtue of the Workers Compensation Act as it relates to Mr. Singh’s personal injuries. Furthermore, the Court of Appeal concludes that wrongful cancellation of the lease by the leasing company is not a reasonably foreseeable consequence of the accident.

Importance:

The Court of Appeal found that determinations as to foreseeability are a question of fact in each case. As per Chambers v. Goertz, 2009 BCCA 358 at para. 49 and Housen v. Nikolaisen, 2002 SCC 33, an appellate court may only interfere if the trial judge made a palpable and overriding error. (See para. 18).

In this case, the Court of Appeal identified the following error with the Trial Judgment: “…the judge failed to address the issue of whether or not the reasonably foreseeable consequence of the loss of the “deposit” was a loss related to Mr. Singh’s personal injuries.” (See para. 20)

For the Court of Appeal, the “only conclusion available on the evidence” is that the $40,000 (which resulted from cancellation of his lease) was a loss related to Mr. Singh’s personal injuries. The lease was cancelled because Mr. Singh “…needed to reduce his financial losses because he could not generate revenue from the truck due to his inability to drive it.” (See para. 22). Under the Workers Compensation Act, Mr. Singh was barred from recovering such a loss.

Alternatively, the Court of Appeal considered the possibility that the Trial Judge misspoke (as was suggested by Mr. Singh) and that she intended to find Mr. Singh had only intended to have the insurance on the truck cancelled – that when the leasing company terminated the lease, it did so wrongfully. (See para. 28).

This scenario presents an interesting legal question: is the wrongful termination of a lease reasonably foreseeable? For the Court of Appeal, the answer is “no”. Why? Citing Mustapha v. Culligan of Canada Ltd., 2008 SCC 27 at para. 13, wrongful termination cannot be considered to be a “real risk” because it is not a risk which would occur to the mind of a reasonable person. In other words, on the question of foreseeability, the Appellants are entitled to consider the normal course of events and are not required to foresee what follows from the wrongful acts of the third party leasing company. In the normal course, leased vehicles are routinely repaired without the leasing company terminating the lease. (See para. 29).

Counsel for the Appellant: Robert Brun, Q.C. (Harris & Brun Law Corporation, Vancouver)

Counsel for the Respondent: Surindra Singh (on his own behalf)

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Posted: Monday, October 02, 2017