Singh v. Soper

2017 BCCA 335 Singh v. Soper

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Singh v. Soper, 2017 BCCA 335 Date: 20170928 Docket: CA43994 Between: Surindra Singh and Surindra Singh operating a business known as "Surindra Singh Owner & Operator" Respondent (Plaintiff) And Robert Timothy Soper and D & R Sand and Gravel Ltd. Appellants (Defendants) Before: The Honourable Mr. Justice Frankel The Honourable Mr. Justice Tysoe The Honourable Madam Justice Dickson On appeal from: An order of the Supreme Court of British Columbia dated September 23, 2016 (Singh v. Soper, 2016 BCSC 1748, New Westminster Docket M111521) Counsel for the Appellant: R.C. Brun, Q.C. Respondent appearing on his own behalf: S. Singh Place and Date of Hearing: Vancouver, British Columbia September 5, 2017 Place and Date of Judgment: Vancouver, British Columbia September 28, 2017 Written Reasons by: The Honourable Mr. Justice Tysoe Concurred in by: The Honourable Mr. Justice Frankel The Honourable Madam Justice Dickson Summary: Appeal from an award of $40,000 for business-related losses arising from a motor vehicle accident. On the basis of s. 257 of the Workers Compensation Act, the respondent was precluded from bringing an action for personal injury, and was only permitted to maintain an action for business-related losses that did not relate to personal injuries. The $40,000 amount related to a "deposit" on a leased truck driven by the

respondent which was forfeited when the lease was cancelled shortly after the accident. The trial judge awarded the respondent the $40,000 amount on the basis that it was reasonably foreseeable that the "deposit" on a leased vehicle could be terminated in the event of an accident. Held: Appeal allowed. The loss of the "deposit" was not recoverable by virtue of the Workers Compensation Act because it was related to the respondent's personal injuries. Alternatively, if, as the respondent argued, the trial judge intended to find that he only meant to cancel the insurance on the truck and not the lease, then the trial judge committed a palpable and overriding error by concluding that the wrongful cancellation of the lease by the leasing company was a reasonably foreseeable consequence of the accident. Reasons for Judgment of the Honourable Mr. Justice Tysoe: Introduction [1] At issue in this appeal is whether the respondent, Surindra Singh, is entitled to recover a $40,000 "deposit" he paid in respect of a leased truck that was involved in a collision on February 27, 2006 with a vehicle driven by the appellant, Robert Timothy Soper, and owned by the appellant, D & R Sand and Gravel Ltd. Mr. Soper was at fault for the collision, and the issue in the underlying action related to the damages, if any, to which Mr. Singh was entitled. [2] At the time of the collision, Mr. Singh was driving the leased truck in the course of his business, and Mr. Soper was driving the vehicle of D & R Sand and Gravel Ltd. in the course of his employment. Mr. Singh applied for and received benefits under the Workers Compensation Act, R.S.B.C. 1996, c.

492. He also sued the appellants for damages. [3] The appellants obtained a certificate under s. 257 of the Workers Compensation Act precluding an action for personal injury pursuant to s. 10(1) of the Act. On application by the appellants, the Supreme Court of British Columbia ordered that Mr. Singh was barred from bringing an action against the appellants relating to his personal injuries resulting from the collision but that he was not barred from maintaining an action for his business-related losses. The appellants appealed the order and, in reasons for judgment indexed as 2014 BCCA 243, this Court allowed the appeal to the limited extent of clarifying that Mr. Singh was not barred from maintaining an action for his business-related losses "that do not relate to personal injuries" (para. 9). [4] Mr. Singh continued his action for such losses, and the action went to trial. In reasons for judgment indexed as 2016 BCSC 1748, the trial judge awarded Mr. Singh a total of $41,340.64, of which $40,000 related to the "deposit" on the leased truck and $1,340.64 related to the charges of a towing company for towing the truck to his yard and storing the truck until it was removed by Mr. Singh. This appeal relates only to the $40,000 award. The Leased Truck [5] Mr. Singh leased the truck from Howard Carter Lease Ltd. (the "Leasing Company"). Although the lease document appeared on its

face to be a lease only, a contemporaneous letter provided Mr. Singh with an option to purchase the truck for $12,000 at the end of the 60-month term of the lease. The lease contained the description "3. DEPOSIT: CAPITAL REDUCTION non refundable $40,000.00". [6] An amortization schedule relating to the lease was also introduced as an exhibit at the trial. It showed a subtotal of $112,607.00 for the cost of the truck and various other charges. It then showed a deduction of $40,000 described as a down payment. The balance of $72,607.00, together with interest, was payable by 60 monthly instalments of $1,308.89 and by the "residual" payment of $12,000 (i.e., the option price). Although I do not think anything turns on it, "CAPITAL REDUCTION non refundable $ 40,000.00" appears beside the heading "3. DEPOSIT:" but the first sentence of that clause refers to a refundable deposit of $986.77. The lease has all the appearances of being a "finance lease" and, rather than being a "deposit", the $40,000 payment was a down payment or capital reduction payment required to be made by Mr. Singh, with the Leasing Company financing the balance of the truck's acquisition cost by way of lease payments (and the $12,000 option price). However, as the trial judge called it a deposit in her reasons for judgment, I will refer to the $40,000 payment as the "deposit" in the remainder of these reasons to

signify that the word is a misnomer. [7] As is typical, the lease provided that it could not be terminated by Mr. Singh but could be terminated by the Leasing Company upon default by Mr. Singh or his insolvency. One of the ways in which Mr. Singh could default under the lease was if he failed to comply with any of the terms of the lease, including a term that he was not to part with possession of the truck. [8] After the collision, Mr. Singh was taken by ambulance to the hospital. Mr. Singh's leased truck was towed to the towing company's yard, where it began to accumulate storage charges. A little over a month later, during which time no assessment of damages to the truck was made by the appellants' insurer, the truck was taken from the towing company's yard to Mr. Singh's normal storage place. A few days later it was taken to the premises of the Leasing Company. [9] On this appeal, the appellants take the position that there was no evidence the truck was damaged in the collision. However, there was a Vehicle Damage Inquiry introduced as an exhibit at the trial which showed $3,645.01 was paid for repairs to the truck in April 2006, and there was no evidence that the truck had been involved in a second collision. More importantly, despite Mr. Singh's testimony that the truck was not drivable as a result of the collision and that the truck was taken by the Leasing Company from

the towing company's yard, the trial judge found that the truck was driven from the towing company's yard to Mr. Singh's normal storage place by a friend of Mr. Singh. There was also evidence that Mr. Singh was asking others in March and April 2006 for assistance in finding someone to drive the truck, which also supports the conclusion that it was drivable. [10] The lease was cancelled by the Leasing Company on April 11, 2006, approximately one week after the truck was brought to its premises, and the truck was re-leased to another party in August. The evidence at the trial concerning the termination was not very satisfactory. A representative of the Leasing Company was called as a witness by Mr. Singh, and he could not explain why the lease was terminated. [11] Mr. Singh testified that, after unsuccessfully attempting to hire other drivers for the truck, he decided that he wanted to save money by cancelling the insurance on the truck, and he returned the truck to the Leasing Company because it told him the truck had to be located on its premises if it was uninsured. He said the attitude of the Leasing Company changed and he learned in June 2006 that the lease had been cancelled. He said he was not told why it was cancelled, and he did not protest its cancellation. Mr. Singh did not take any steps to obtain a refund of any of the $40,000 payment he made to the Leasing

Company. Reasons of the Trial Judge [12] In her reasons for judgment, the trial judge expressed difficulties with the credibility of Mr. Singh. She stated she accepted his evidence respecting the accident and his dealings with the Leasing Company and the appellants' insurer after the accident. She then detailed some inconsistencies and other problems with his testimony. She said that she accepted "only the evidence of the plaintiff respecting when he lost his Truck and his claims of the loss of the down payment except as outlined in this judgment" (para. 51). [13] The judge made the following finding regarding the cancellation of the lease: [43] The plaintiff was aware that [the Leasing Company] was the only entity that could cancel the Lease and accordingly, he asked [the Leasing Company] to cancel it to reduce his financial losses. The plaintiff understood that the vehicle had to be in [the Leasing Company's] yard. As a result, the Truck was taken back to [the Leasing Company] on March 31, 2006. [14] After discussing the law regarding foreseeability and intervening acts, the judge found that the fact an individual would be driving a leased vehicle and that an accident could result in the termination of the lease (and thereby the loss of the "deposit" paid on that lease) was entirely within the realm of possibility and foreseeability (para. 65). She found that it had been

proven on a balance of probabilities that Mr. Singh lost his $40,000 as a result of the accident (para. 67). Finally, she held that, as only the Leasing Company could cancel the lease, then its cancellation was not an intervening act and it was a risk set in motion by the appellants' negligence (para. 68). Discussion [15] One of the difficulties presented in this appeal relates to the finding made by the judge in para. 43 of her reasons quoted above. Mr. Singh says the judge misspoke when she stated that he asked the Leasing Company to cancel the lease and that she was intending to refer to the insurance on the truck, not the lease itself. We were not informed of any request being made to the judge to correct the reasons, but there is arguably an inconsistency between para. 43 and the judge's statement she accepted Mr. Singh's evidence respecting his dealings with the Leasing Company after the accident. [16] As I believe the result should be the same whether the judge was intending to find that Mr. Singh requested the lease or only the insurance to be cancelled, I will deal with both scenarios. I will start with the first scenario because that is the one that reflects the express finding made by the judge. [17] Before I address the two scenarios, it will be useful to refer to the decision of the Supreme Court of Canada on the topic of foreseeability referred to by the judge,

Mustapha v. Culligan of Canada Ltd., 2008 SCC 27. Chief Justice McLachlin summarized the law as follows: [12] The remoteness inquiry asks whether "the harm [is] too unrelated to the wrongful conduct to hold the defendant fairly liable" (Linden and Feldthusen [Linden, Allen M., and Bruce Feldthusen, Canadian Tort Law, 8th ed. Markham, Ont.: LexisNexis Butterworths, 2006], at p. 360). Since The Wagon Mound (No. 1), the principle has been that "it is the foresight of the reasonable man which alone can determine responsibility" (Overseas Tankship (U.K.) Ltd. v. Morts Dock & Engineering Co., [1961] A.C. 388 (P.C.), at p. 424). [13] Much has been written on how probable or likely a harm needs to be in order to be considered reasonably foreseeable. The parties raise the question of whether a reasonably foreseeable harm is one whose occurrence is probable or merely possible. In my view, these terms are misleading. Any harm which has actually occurred is "possible"; it is therefore clear that possibility alone does not provide a meaningful standard for the application of reasonable foreseeability. The degree of probability that would satisfy the reasonable foreseeability requirement was described in The Wagon Mound (No. 2) as a "real risk", i.e. "one which would occur to the mind of a reasonable man in the position of the defendan[t] . . . and which he would not brush aside as

far-fetched" (Overseas Tankship (U.K.) Ltd. v. Miller Steamship Co. Pty., [1967] A.C. 617 (P.C.), at p. 643). [18] As Mr. Singh points out, the determination of foreseeability is a question of fact in each case (see Chambers v. Goertz, 2009 BCCA 358, at para. 49). As a result, an appellate court may interfere with such a determination only if the trial judge made a palpable and overriding error (see Housen v. Nikolaisen, 2002 SCC 33). Scenario 1 - Request for Lease to be Cancelled [19] The trial judge found it was foreseeable that an individual would be driving a leased vehicle and that an accident could result in the termination of the lease. On this scenario, I agree it was reasonably foreseeable that a person injured while driving their leased vehicle would, in the words of the judge at para. 43, request the lessor to cancel the lease to reduce his or her financial losses. The Leasing Company acceded to the request, and it was a mutual termination of the lease by both parties. I also agree it was reasonably foreseeable that the lessee may lose a "deposit" (i.e., a down payment or capital reduction payment) upon the termination of the lease. [20] In my view, however, 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. In my view, this failure amounts to

an error of law that can be extricated from the factual context (see E.B. v. Order of the Oblates of Mary Immaculate (British Columbia), 2005 SCC 60, at para. 23). [21] In the earlier decision of this Court in this matter, it was clarified that, as a result of s. 10(1) of the Workers Compensation Act (and the certificate issued under s. 257 of the Act), Mr. Singh was not entitled to recover business-related losses that were related to personal injuries. Although the trial judge made reference to the decision in the narrative portion of her reasons, she did not make a determination that the termination of the lease (and the related loss of the "deposit") was unrelated to Mr. Singh's personal injuries. [22] In para. 43 of her reasons, the judge found that Mr. Singh asked the Leasing Company to cancel the lease to reduce his financial losses. The only evidence of his financial losses was the monthly lease and insurance costs related to the truck at a time when he was not able to drive the truck as a result of the personal injuries he sustained in the accident and his inability to find another person to drive the truck. The only conclusion available on the evidence is that the loss was related to Mr. Singh's personal injuries - he needed to reduce his financial losses because he could not generate revenue from the truck due to his inability to drive it. In accordance with the

earlier decision of this Court, he was barred by the provisions of the Workers Compensation Act from recovering such a loss. [23] There could have been situations where the cancellation of the lease would have been unrelated to personal injuries. For example, Mr. Singh could have sustained minor injuries in the accident but the truck may have been badly damaged and would have required months to be repaired. If Mr. Singh asked the Leasing Company to cancel the lease to reduce his financial losses in those circumstances, his loss would have been foreseeable and not made unrecoverable by the provisions of the Workers Compensation Act. However, that is not the evidence in this case. [24] I wish to deal with one further point under this scenario. Mr. Singh complains that the appellants' insurer did not assess the damage to the truck for, as the trial judge put it at para. 10, "practically two months" after the accident and suggests this led to the return of the truck to the Leasing Company and the subsequent cancellation of the lease. However, the evidence of the insurance adjuster called as a witness at the trial established that, as the truck was drivable, it was up to Mr. Singh to take the truck to a repair shop for an estimate. In addition, there was no evidence that this delay was the reason the lease was cancelled. [25] I conclude that, while the cancellation of the lease was

foreseeable under the scenario found by the trial judge, she erred in failing to conclude that the loss of the "deposit" was related to Mr. Singh's personal injuries and unrecoverable as a result of the provisions of the Workers Compensation Act. Scenario 2 - Request for Insurance only to be Cancelled [26] Under this scenario, it is assumed that the trial judge misspoke in para. 43 of her reasons and had intended to make a finding consistent with the evidence of Mr. Singh; namely, he intended to have only the insurance on the truck cancelled, and he returned the truck to the Leasing Company's premises because it told him that the truck had to be on its premises if it was uninsured. [27] It is not known under this scenario why the Leasing Company terminated the lease. It could not have been a result of a default by Mr. Singh in making the monthly lease payments because he continued making them after the accident. It could not have been a result of Mr. Singh's failure to make insurance payments or parting with possession of the truck because, on his evidence, the Leasing Company consented to the suspension of insurance payments by Mr. Singh as long as the truck was put into its possession. [28] The only conclusion available under this scenario is that the Leasing Company terminated the lease when it did not have the legal right to do so and that Mr. Singh did not protest the

wrongful termination. In my opinion, the loss occasioned by the wrongful termination of the lease was not a reasonably foreseeable consequence of the accident. The judge simply found that the termination of the lease as a result of the accident was within the realm of foreseeability but she did not address the aspect of the termination being wrongful if Mr. Singh had not requested it. [29] If the trial judge did intend to find that Mr. Singh only requested the cancellation of the insurance and not the lease itself, it is my opinion she would have made a palpable and overriding error in concluding that the loss of the "deposit" was a reasonably foreseeable consequence of the accident. In the normal course of events, leased vehicles involved in accidents are routinely repaired without the lessor improperly bringing the lease to an end. To paraphrase the wording of para. 13 in Mustapha quoted above, the wrongful termination of the lease by the Leasing Company because the truck was involved in an accident 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 the position of the appellants. It is a risk such a reasonable person would brush aside as being far-fetched. [30] In addition, even if the risk of the wrongful termination of the lease was a reasonably foreseeable consequence of the accident, Mr. Singh did not

mitigate the loss because he failed to protest the termination or to take any other steps to recover all or part of the "deposit". Conclusion [31] On the findings stated to have been made by the trial judge, it is my view that she erred in failing to determine that the loss of the "deposit" was not recoverable by Mr. Singh from the appellants by virtue of the provisions of the Workers Compensation Act. If the trial judge had intended to find that Mr. Singh did not request the cancellation of the lease, it is my view that she would have committed a palpable and overriding error in concluding that the loss of the "deposit" was a reasonably foreseeable consequence of the accident. [32] I would allow the appeal and vary the order dated September 23, 2016 by reducing the amount of the judgment awarded to Mr. Singh, together with the amount on which he is entitled to pre-judgment interest, from $41,340.64 to $1,340.64. "The Honourable Mr. Justice Tysoe" I agree: "The Honourable Mr. Justice Frankel" I agree: "The Honourable Madam Justice Dickson"