



COURT 
    OF APPEAL FOR BRITISH COLUMBIA




Citation:


Bakker 
          v. Nahanee,







2008 
          BCCA 12



Date: 20080115

Docket: CA035535

Between:

Randy 
    Bakker

Appellant

(
Plaintiff
)

And

Harry 
    Jacob Nahanee, an infant, by his Litigation Guardian

The 
    Public Guardian and Trustee, Roselle Ang,

General 
    Motors Acceptance Corporation

Respondents

(
Defendants
)




Before:


The 
          Honourable Madam Justice Prowse




(In 
          Chambers)








J. 
          Cameron


Counsel for the Appellant




D.J. 
          Chapman


Counsel for the Respondents




Place 
          and Date of Hearing:


Vancouver, British Columbia




January 9, 2008




Place 
          and Date of Judgment:


Vancouver, British Columbia




January 15, 2008



Reasons 
    for Judgment of the Honourable Madam Justice Prowse:

[1]

Mr. Bakker is applying for leave to appeal the decision of a chambers 
    judge, made October 19, 2007, dismissing his claim against two of the defendants, 
    Roselle Ang and General Motors Acceptance Corporation (GMAC), with costs 
    to those defendants payable forthwith.  Mr. Bakker submits that the chambers 
    judge erred in making the order of costs prior to a determination of the liability 
    of Mr. Nahanee, and in making the costs payable forthwith.  He submits that 
    any order for costs should have awaited the outcome of the trial against Mr. 
    Nahanee, which was then set to proceed in November 2007.

[2]

By way of brief background, Mr. Bakker was injured in a motor vehicle 
    accident in May 2002 when the vehicle he was driving was struck by a stolen 
    vehicle operated by Mr. Nahanee, who was then a juvenile.  Mr. Bakker commenced 
    the underlying action on April 19, 2004 claiming damages against Mr. Nahanee 
    for negligent operation of the vehicle, and against GMAC as owner/lessor and 
    Ms. Ang as lessee of the vehicle for failure to ensure the vehicle was mechanically 
    sound.

[3]

The defendant Nahanee filed an appearance and a statement of defence.  
    The other defendants took additional steps in their defence including discovery 
    of documents, requests for particulars and an examination for discovery of 
    Mr. Bakker.  This eventually led to their application under Rule 18A for dismissal 
    of the action against them.  Prior to the application for dismissal, Mr. Bakkers 
    counsel examined Ms. Ang for discovery, following which he agreed that the 
    action against Ms. Ang and GMAC should be dismissed.

[4]

At the Rule 18A application, the only issue was costs.  Counsel for 
    Mr. Bakker took the position that the issue of costs of Ms. Ang and GMAC should 
    be determined at the conclusion of the trial when he anticipated obtaining 
    judgment against Mr. Nahanee.  In that event, he proposed to request that 
    the costs of Ms. Ang and GMAC be paid by Mr. Nahanee pursuant to Rule 57(18) 
    of the
Rules of Court
, B.C. Reg. 221/90 by way of either a
Sanderson
or
Bullock
order.  Counsel for Ms. Ang and GMAC sought costs forthwith.

[5]

The chambers judge noted, correctly, that he could not make a
Bullock
or
Sanderson
order at the time of the Rule 18A application, since there 
    was no unsuccessful defendant who could be held liable to pay costs.  He made 
    a point of stating that nothing in his reasons should be taken as precluding 
    Mr. Bakker from seeking contribution for costs if and when Mr. Nahanee was 
    found liable.  In the result, he concluded that it was appropriate in the 
    circumstances to order Mr. Bakker to pay the costs of the successful defendants 
    forthwith.

[6]

The approach to an application for leave to appeal an order of costs 
    only is set forth  by Madam Justice Rowles in
Neufeld v. Foster
, 
    2000 BCCA 485 (in Chambers), at paras. 14 and 15:

Under s. 7(2)(b) of the
Court of Appeal Act
, 
    R.S.B.C. 1996, c. 77, leave is required to appeal an order of costs only.  
    As an award of costs generally involves the exercise of discretion, the award 
    is subject to limited appellant review.  Generally, leave is not granted unless 
    a question of principle is involved:
Raffele v. Janzen,
[1989] B.C.J. 
    No. 1733 (B.C.C.A.).

The factors that are generally taken into account on 
    an application for leave to appeal are the importance of the proposed appeal 
    generally and to the parties, the utility of the proposed appeal in the circumstances 
    of the parties, and the prospects of success of the proposed appeal.

[7]

In my view, this is a fact driven appeal which does not raise any question 
    of general principle or any issue of general importance to the practice.  
    I simply do not see this as a precedent-setting case.

[8]

I accept that the appeal is of significance to Mr. Bakker who has been 
    ordered to pay costs of approximately $12,000 at a time when he has not yet 
    received compensation for his injuries.  At the time of the hearing, all parties 
    and the chambers judge anticipated that the trial against Mr. Nahanee would 
    be proceeding in approximately one months time.  For reasons which are not 
    entirely clear, the trial was adjourned and is now not expected to proceed 
    until 2009.  It is possible, of course, that it may never proceed and that 
    the matter may settle.

[9]

I am also of the view that the appeal has little prospect of success.  
    This was essentially a discretionary order.  It was open to the chambers judge 
    to exercise his discretion as he did and I fail to see any significant issue 
    of principal raised by these facts which would merit review by this Court.  
    I note, parenthetically, that Mr. Bakker has not yet paid the costs and it 
    may be that the defendants will not insist on payment forthwith although they 
    are entitled to do so.

[10]

In the result, I am not persuaded that this is an appropriate case 
    in which to grant leave to appeal and I would dismiss Mr. Bakkers application.

The Honourable Madam Justice Prowse


