06 Aug Can I Still Accept the Offer?

In personal injury cases, the Plaintiff’s lawyer and ICBC typically exchange multiple offers.  These usually include “formal” and “informal” offers.  The main difference is whether one can bring the offer to the court’s attention after trial, in order to seek costs.  Formal offers can be brought to the court’s attention but informal offers do not have the same effect.  When a party presents multiple formal and informal offers, an issue can arise as to whether a previous offer is still open for acceptance.

In Arsenovski v. Bodin, 2014 BCSC 199, ICBC first issued a $10,000 formal offer (First Offer).  Over the next two years, the Plaintiff issued two formal offers.  Shortly after the Plaintiff’s second formal offer, ICBC wrote to the Plaintiff rejecting the offer.  The lawyer for ICBC wrote, “My clients would, however, accept a Consent Dismissal Order in exchange for a waiver of their costs.”  This was an informal offer (Second Offer).  After receiving ICBC’s Second Offer, the Plaintiff wrote to the ICBC lawyer and purported to accept the First Offer.

ICBC argued their Second Offer revoked their First Offer, meaning that the First Offer was no longer valid and the Plaintiff could not accept it.  The Plaintiff argued that there must be clear and unambiguous language to revoke the formal First Offer and the Second Offer did not contain such language.

The court accepted ICBC’s argument.

[15]… 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  First, an offer may be withdrawn before acceptance.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  From the time the new condition is submitted, the earlier offer is withdrawn, and is no longer open to acceptance or rejection, by the party to whom it was presented.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.

As a result, the Plaintiff was not entitled to accept the $10,000 offer.