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 provide for what occurs if an another offer is made by the party who made the original offer. At this point, is there a revocation of the original offer ? In such a situation, the Courts have relied on the common law with respect to revocation of offers.
In Arsenvoski v. Boden, the Plaintiff was hurt in a motor vehicle collision, and advanced an ICBC claim for non-pecuniary damages, as well as other forms of damages. At one point during litigation proceedings, ICBC’S lawyer made a formal offer to settle. Counsel for the Plaintiff then made a formal offer to settle, which was later followed by another formal offer to settle by the Plaintiff in a lower amount. 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. The Plaintiff then attempted to accept the Defendant‘s first 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of the original formal settlement offer, however the Court ruled that the original formal settlement offer had indeed been revoked by the Defendant‘s subsequent informal offer.
[13] Here, the defendants’ Second Offer stated: “My clients would, however, accept a Consent Dismissal Order in exchange for a waiver of their costs”. Those words amounted to a new settlement offer. There was nothing unclear or unequivocal about them.
[14] I agree with defendants’ counsel that in the absence of language in Rule 9-1 regarding how and when a formal settlement offer is withdrawn, the common law applies.
[15] I do not accept the argument that a formal settlement offer is not revoked by an informal settlement offer. While that may have been the case under the language of former Rule 37, it is no longer the case under Rule 9-1. A settlement offer, formal or informal, is revoked upon the communication of a new settlement offer, formal or informal. 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.
