



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



Provost v. Dueck Downtown Chevrolet Buick GMC Limited,









2021 BCCA 15




Date: 20210114

Dockets:
CA44808; CA44809; CA44810

Docket: CA44808

Between:

Quinn Provost

Respondent

(Plaintiff)

And

Dueck Downtown Chevrolet
Buick GMC Limited

and Kyle
Katerenchuk

Appellants

(Defendants)

And

David James Bolton
and ABC Corporations #13

Respondents

(Defendants)

- and -

Docket: CA44809

Between:

Attorney General
of Canada

Respondent

(Plaintiff)

And

Dueck Downtown Chevrolet
Buick GMC Limited

and Kyle
Katerenchuk

Appellants

(Defendants)

And

David
James Bolton

Respondent

(Defendant)

- and -

Docket: CA44810

Between:

Brandy Brundige

Respondent

(Plaintiff)

And

Dueck Downtown
Chevrolet Buick GMC Limited

and Kyle Katerenchuk

Appellants

(Defendants/Third
Parties)

And

David James
Bolton, Minister of Justice for the

Province of
British Columbia, John Doe #1 and John Doe #2

Respondents

(Defendants/Third
Parties)




Before:



The Honourable Madam Justice MacKenzie

The Honourable Mr. Justice Butler

The Honourable Madam Justice DeWitt-Van Oosten




Supplementary Reasons
to
Provost v. Dueck Downtown Chevrolet Buick GMC Limited
, 2020 BCCA 86.




Counsel for the Appellants/Respondents on Cross Appeal in
  CA44810:



A. Mersey, Q.C.

M. Sobkin

E.J. Segal





Counsel for the Respondent, Brandy Brundige:



A. Leoni

B.J. Colangelo





Counsel for the Respondent/Appellant on Cross Appeal in
  CA44810, Minister of Justice for the Province of British Columbia and
  Respondent, Attorney General of Canada:



D. Kwan

E.L.C. Louie





Counsel for the Respondent, Quinn Provost:



K. Gourlay

P.J. Bosco





Counsel for the Respondent, David James Bolton:



T.S. Hawkins

R.S. Bernard





Place and Date of Hearing:



Vancouver, British
  Columbia

October 24 and 25,
  2019





Place and Date of Judgment:



Vancouver, British
  Columbia

March 12, 2020





Written Submissions Received:



November 10, 18, 24,
  and 30, 2020





Place and Date of Supplemental Reasons:



Vancouver, British
  Columbia

January 14, 2021









Supplementary Reasons of the Court








Summary:

Defendant/appellant, Dueck,
succeeded in overturning finding of liability at trial and seeks costs from the
plaintiffs. In the circumstances, a Sanderson order is warranted whereby Duecks
costs are payable directly by the unsuccessful defendants, Mr. Bolton and
the Minister. Mr. Bolton sought to shift blame to Dueck and the
plaintiffs. Dueck was not blameless in the events leading to the plaintiffs
injuries. It would not be just or fair in the circumstances to erode the
judgment funds of the plaintiffs based on liability disputes between
defendants. The Minister is to pay costs of its unsuccessful cross-appeal.

Supplementary Reasons for
Judgment of the Court:

[1]

These Supplementary Reasons address the issue of costs following the
successful appeal of Dueck Downtown Chevrolet Buick GMC Limited (Dueck)
against a finding of liability at trial in three actions concerning motor
vehicle collisions: 2020 BCCA 86, leave to appeal refd 2020 CanLII 89595
(SCC). In its decision, the Court also dismissed the cross-appeal brought by
the Minister of Justice for the Province of British Columbia (the Minister)
in one of the three actions. The parties were unable to agree on costs and the
Court invited further submissions on costs that have now been received.

Background

[2]

The factual background and procedural circumstances of the dispute are
complicated. In April 2012, David James Bolton stole a truck from Dueck and caused
a series of accidents. In the first accident, Mr. Bolton collided with and
caused damage to an RCMP vehicle. In the second accident, he collided with
another RCMP vehicle driven by Constable Quinn Provost. In the third accident,
Mr. Bolton collided with a vehicle driven by Brandy Brundige.

[3]

The Attorney General of Canada (the AG), Cst. Provost, and
Ms. Brundige (together, the plaintiffs) all commenced actions for
damages. The AG claimed against Mr. Bolton and Dueck for the costs of the
two damaged RCMP vehicles and advanced a subrogated claim to recoup benefits
paid to Cst. Provost (the AG Action). Cst. Provost claimed against
Mr. Bolton and Dueck for injuries, damage, and expense suffered by him
(the Provost Action). Ms. Brundige claimed against Mr. Bolton,
Dueck, and the Minister for vicarious liability for the conduct of members of
the RCMP (the Brundige Action).

[4]

The liability trials were heard together in June 2017. In reasons
indexed as 2017 BCSC 1608, the trial judge found the defendants liable and
apportioned fault:

1.

The AG Action
: Mr. Bolton and Dueck were found jointly and
severally liable to the AG, with liability apportioned 85% to Mr. Bolton
and 15% to Dueck. The AG was awarded costs payable by Mr. Bolton and
Dueck.

2.

The Provost Action
: Mr. Bolton and Dueck were found jointly
and severally liable to Cst. Provost, with liability apportioned 85% to
Mr. Bolton and 15% to Dueck. Cst. Provost was awarded costs payable by
Mr. Bolton and Dueck.

3.

The Brundige Action
: Mr. Bolton, Dueck, and the Minister
were found jointly and severally liable to Ms. Brundige, with liability
apportioned 70% to Mr. Bolton, 15% to Dueck, and 15% to the Minister.
Ms. Brundige was awarded costs payable by Mr. Bolton, Dueck, and the
Minister.

[5]

The quantum trials took place in NovemberDecember 2017. In reasons
indexed as 2018 BCSC 1090, the judge awarded Cst. Provost $461,142.29 and the
AG $23,051.53 for vehicle damage and $43,500.69 in medical/rehabilitative costs
for Cst. Provost. In separate reasons indexed as 2018 BCSC 1843, the judge
awarded Ms. Brundige $784,375.98 in damages, reduced by $102,450.11
pursuant to s. 83 of the
Insurance (Vehicle) Act
, R.S.B.C. 1996,
c. 231.

[6]

Dueck filed notices of appeal in all three actions seeking to set aside
the liability findings of Justice Kelleher. The Minister filed a notice of
cross-appeal in the Brundige Action in respect of the judgment apportioning
liability to the Minister. Duecks liability appeal and the Ministers
cross-appeal were heard together before a division of this Court.

[7]

Dueck and Mr. Bolton also filed notices of appeal in the Provost
Action and the AG Action raising a single ground of appeal: whether the trial
judge erred by concluding that the AG has an equitable right of subrogation for
the wage loss benefits paid by the RCMP to Cst. Provost and by including the
amount of those benefits in his assessment of damages. The hearing of that
appeal is set for February 2021.

Issues

[8]

It is not contentious that Dueck, the successful party on appeal, is
entitled to costs of the appeal and the proceedings below. It seeks an order
that their trial and appeal costs be paid equally by each of the three plaintiffs
(Cst. Provost, Ms. Brundige, and the AG). Mr. Bolton supports this
position.

[9]

The plaintiffs all support a
Sanderson
or
Bullock
order
whereby Duecks costs of defending the three actions in the liability and
quantum trials and in the liability appeal are payable by the unsuccessful
defendant(s). As a result of Duecks successful appeal, Mr. Bolton is now
100% liable in the Provost and AG Actions; Mr. Bolton and the Minister are
liable in the Brundige Action. We will address the parties submissions in
greater detail in our analysis below. First, however, we will address two
preliminary matters.

Subrogation Appeal

[10]

Cst. Provost submits that the issue to be addressed is costs for the
liability trial and appeal, but not for the quantum trial and appeal. We do not
agree. The sole issue in the quantum appeal is whether the trial judge erred in
finding that wages paid by the AG to Cst. Provost were subject to an equitable
right of subrogation. The decision in that appeal will not affect Duecks
liability to any of the plaintiffs. Moreover, Dueck would not have been
involved in the quantum proceedings if the correct result had been achieved at
the liability trial. Any order for costs of the ongoing appeal will not affect
Duecks right to trial costs, which will be considered below.

Costs of the
Ministers Cross-Appeal

[11]

As a second preliminary matter, Dueck seeks an order for costs of
defending the AG cross appeal as 100% payable by the AG. As joint counsel for
the AG and Minister notes, the cross-appeal was brought by the Minister as a
respondent in the Brundige Action, not the AG (the plaintiff in the AG action).
Counsel does not otherwise dispute Duecks position and notes that any order of
costs relating to the cross-appeal should be against the Minister and not the
AG.

[12]

However, we note that only Mr. Bolton and Ms. Brundige opposed
the cross‑appeal. Dueck was not a respondent on the cross-appeal: at
paras. 4, 94. Dueck did not file a respondents factum in the cross-appeal
although it stated in its reply factum that it supported the position of
Ms. Brundige and adopted her submissions in response to the Ministers
cross-appeal. We therefore decline to award Dueck its costs of defending the
cross-appeal. We will return to the matter of cross-appeal costs below.

Discussion and
Analysis

Statutory
Provisions

[13]

Under s. 23 of the
Court of Appeal Act
, R.S.B.C. 1996,
c. 77:

23
Unless the court or a justice otherwise orders, the party who is
successful on an appeal is entitled to costs of the appeal including the costs
of all applications made in the appeal.

[14]

Rule 14-1(9) of the
Supreme Court Civil Rules
specifies that
costs of a proceeding must be awarded to the successful party unless the court
otherwise orders.

[15]

Rule 14-1(18) of the
Supreme Court Civil Rules
states:

(18)
If the costs of one defendant against a plaintiff ought to be paid by
another defendant, the court may order payment to be made by one defendant to
the other directly, or may order the plaintiff to pay the costs of the
successful defendant and allow the plaintiff to include those costs as a
disbursement in the costs payable to the plaintiff by the unsuccessful
defendant.

Sanderson
and
Bullock
Orders

[16]

It is not disputed that Dueck, as the successful party, is entitled to
its trial and appeal costs. The question is whether these costs should be paid
by the plaintiffs (Cst. Provost, the AG, and Ms. Brundige) or by the
unsuccessful defendants (Mr. Bolton and the Minister) under Rule 14-1(18)
of the
Supreme Court Civil Rules
, which provides the basis for what are
commonly referred to as
Sanderson
and
Bullock
orders. As this
Court noted in
Davidson v. Tahtsa Timber Ltd.
, 2010 BCCA 528:

[50]      In Fraser, Horn &
Griffin,
The Conduct of Civil Litigation in British Columbia
, 2nd ed.
looseleaf (Markham: LexisNexis, 2007), the authors explain at para. 38.19:

Rule 14-1(18) provides that the
court may order that a successful plaintiff pay the costs of a successful
defendant and recover such costs as a disbursement against an unsuccessful
defendant. Such order is commonly known as a
Bullock
order. The Rule
also provides that the court may, as an alternative, order that the
unsuccessful defendant pay the costs of the successful defendant directly. Such
order is commonly known as a
Sanderson
order. A court may make such
order where there is more than one defendant in an action and also where
actions have been consolidated for trial or ordered to be tried at the same
time.

. . . . .

Where all parties are solvent,
it does not matter much which form of order is made
. The advantage of a
Sanderson
order in such a case is confined to avoiding circuitousness.

If the unsuccessful defendant is
insolvent, then the
Bullock
form of order imposes a hardship upon the
plaintiff who may recover nothing from the unsuccessful defendant and yet has
to pay the successful defendant. A
Sanderson
form of order, on the other
hand, imposes the hardship upon the successful defendant.
Where the
successful defendant is blameless, the courts have generally refused to make a
Sanderson
order
.

[Emphasis added.]

[17]

The threshold test for a
Sanderson
or
Bullock
order is
whether it is reasonable for the plaintiff to have joined the successful
defendant in the action. If this is satisfied, the question becomes whether it
would be just and fair in the circumstances for the unsuccessful defendant to
pay the successful defendants costs:
Davidson
at paras. 5356. In
Grassi
v. WIC Radio Ltd.
, 2001 BCCA 376 at para. 32, Justice Southin
described the secondary consideration as whether the unsuccessful defendant
ought to pay the costs of the successful defendant. The decision to award a
Sanderson
or
Bullock
order is a matter of discretion, which must be exercised
judicially based on the judges assessment of the circumstances of the case:
Robertson
v. North Island College Technical and Vocational Institute
(1980), 119
D.L.R. (3d) 17 (B.C.C.A.) at para. 14.

[18]

In
Grassi
, Justice Southin noted that [t]here must be something
which the unsuccessful defendant did,
such as asserting the other defendant
was the culprit in the case
, to warrant his being made to reimburse the
plaintiff for the successful defendants costs: at para. 33 (emphasis
added). Justice Southin elaborated:

34       
 orders under Rule 57(18) [now Rule 14-1(18)] are not restricted to cases
where the unsuccessful defendant in the course of the litigation has blamed the
successful defendant but may extend to acts of the unsuccessful defendant which
caused the successful defendant to be brought into the litigation.

[19]

In
Davidson
, this Court held that a
Sanderson
or
Bullock
order requires some conduct on the part of the unsuccessful defendant in order
to justify the award: at para. 54. There, even though the Court found
that it was reasonable for the appellant to have joined both defendants in one
action, it was not just and fair in the circumstances to make a
Sanderson
or
Bullock
order because there was no credible evidence to support the
claim against the successful defendant: at para. 56.

Analysis

[20]

In all three actions, the threshold question is easily satisfied. Given
Duecks actions, it was eminently reasonable for the plaintiffs to join Dueck
as a defendant. The trial judge held Dueck liable for breaching the requisite
standard of care, and while Duecks liability was overturned on appeal, it was
on the basis that Dueck did not owe a duty of care to Cst. Provost,
Ms. Brundige, or the AG. Dueck did not dispute the standard of care on
appeal and whether Dueck owed the plaintiffs a duty of care would not have been
certain at the outset.

[21]

At the second stage, there are a number of factors which favour a
Sanderson
or
Bullock
order. We will consider each of the underlying actions and
the parties individual submissions separately below. However, we will first
address two general points which apply to all plaintiffs.

[22]

First, it is clear that the actions of Mr. Bolton caused the
successful defendant, Dueck, to be brought into the litigation:
Grassi
at
para. 34. Mr. Boltons theft of the truck and his actions in evading
the police were central to the liability considerations involving Dueck and the
actions of the police officers.

[23]

Second, we do not accept Mr. Boltons assertion that he did not
actively attempt to attach any blame to Dueck. He submits that at no time
during the Liability Trial or appeal did Bolton assert that Dueck should bear
liability to any of the plaintiffs. He concedes that the negligence of Dueck
was pled but asserts that this position was never actively pursued at trial.
He notes that in his trial briefs, he took the position that he would not be
denying liability at trial.

[24]

In his response to civil claim in the Brundige Action, Mr. Bolton
submitted that the accident occurred solely as a result of Ms. Brundiges
negligence in driving her motor vehicle. In the alternative, he submitted that
the accident occurred solely as a result of the negligence of the defendant
Dueck. In the further alternative, Mr. Bolton submitted that the accident
occurred as a result of the negligence of the defendant police officers and,
separately, the Minister. In other words, the allegations made by
Mr. Bolton in his pleadings attempted to shift blame onto each of
Ms. Brundige, Dueck, and the Minister for the actions of the RCMP.

[25]

At the liability trial, Justice Kelleher described Mr. Boltons
position:

[7]        He concedes
that his negligent driving caused the motor vehicle collisions which are the
subject of this case, and that he is liable to the plaintiffs for their
damages. He submits however, that he is not the only person liable to the
plaintiffs.

[8]        Mr. Bolton
submits, like Ms. Brundige, that the collision with her car would not have
occurred but for the RCMP engaging in a dangerous police pursuit.

[9]        Moreover,
Mr. Bolton alleges that the RCMP created a dangerous situation when officers
attempted to arrest him at gun point. The RCMP, Mr. Bolton alleges,
breached the standard of care owed to people in the immediate vicinity,
including their employee, Constable Provost.

[10]     
Dueck denies liability for any of the accidents. It submits that Constable
Provost was contributorily negligent for his injuries for not wearing his
seatbelt at the time of the collision.

By the time of the trial, Mr. Bolton no longer actively
sought to shift blame on Dueck but continued to do so with respect to the
actions of the RCMP officers and Cst. Provost.

[26]

While Mr. Bolton did not make submissions about Duecks liability
at trial or on appeal, it is clear that he did not have to do so to obtain the
benefit of a finding in that regard. Mr. Boltons pleadings alleged that
Dueck was at fault. He even issued a third party notice against Dueck in the
Brundige Action. Duecks liability was always going to be a live issue at
trial, given that the plaintiffs all claimed against Dueck. As such, it did not
matter at that point whether Mr. Bolton, too, explicitly sought to blame
Dueck. Duecks liability would be fully considered at trial, and on appeal
after Dueck was found liable in negligence at first instance.

[27]

With this in mind, we turn to the individual actions below.

Brundige Action

[28]

Ms. Brundige submits that she was forced to trial due to a contest
between defendants in apportioning liability. She notes that Mr. Bolton
initially attempted to blame Dueck; that Dueck blamed Mr. Bolton and the
Minister; and that the Minister blamed Mr. Bolton and Dueck. All
defendants filed Third Party Notices against each other. Despite the fact that
Mr. Bolton and Dueck were both insured and represented by ICBC, and that
there was no divergence of interest between Mr. Bolton and Dueck on
quantum of damages, there were two sets of counsel instructed by ICBC in
attendance at the quantum trial.

[29]

Ms. Brundige says the outcome of the liability contest was of no
import to her other than establishing the liability of Mr. Bolton, which
was a foregone conclusion. Due to the defendants refusal to admit fault (until
Mr. Bolton conceded fault at trial while seeking liability on the part of
the Minister), lengthy trials were required. Ms. Brundige notes that
Sanderson
or
Bullock
orders are frequently granted where defendants seek to shift
blame onto each other. That occurred in this case both at trial and on appeal,
even if Mr. Bolton did not have to actively advance the case against
Dueck.

[30]

In our view, the submissions of Ms. Brundige have considerable
merit. It would not be just or fair in the circumstances to require her to pay
costs stemming from the multiple trials and appeal which occurred because of
the defendants attempts to shift blame. Although Dueck was ultimately found
not to owe a duty of care in the unique circumstances of this case, they were
not blameless in a sense that would mitigate against a
Sanderson
order:
Davidson
at para. 50. From Ms. Brundiges perspective, given
that Mr. Boltons liability was a foregone conclusion, it mattered not
whether Dueck and/or the Minister were also liable. As Ms. Brundige notes,
she should not see her judgment funds potentially eroded as a result of costs
awards flowing from a liability dispute between defendants that was of little
concern to her.

[31]

We would accordingly make a
Sanderson
order in
Ms. Brundiges favour. Duecks trial and appeal costs will be payable
directly by the unsuccessful defendants, Mr. Bolton and the Minister,
according to the proportion of liability allocated to each of them. A
Sanderson
order is preferable to a
Bullock
order because it avoids circuitousness:
Davidson
at para. 50. Having arrived at this conclusion, we need
not consider Ms. Brundiges request for leave to adduce evidence of
without prejudice settlement communications.

[32]

Separately, Mr. Bolton and Ms. Brundige are awarded their
costs of defending the Ministers cross-appeal in the Brundige Action, to the
extent that those costs are distinct from their costs of the main appeal and
may be ascertained as such.

Provost Action

[33]

Cst. Provosts situation is analogous to that of Ms. Brundige. In
his pleadings, Mr. Bolton denied liability and alleged that Dueck and Cst.
Provost were at fault. As in the Brundige Action, the liability contest in the
Provost litigation was between Mr. Bolton and Dueck. While Cst. Provost
argued that both defendants should be found at fault, the question of liability
as between the defendants was not of practical significance to him.

[34]

In these circumstances, it is appropriate to order Mr. Bolton to
pay Duecks costs. Like Ms. Brundige, Cst. Provost should not have the
potential for his judgment funds to be eroded by the liability contest between
Mr. Bolton and Dueck. Dueck was not blameless in the events leading to his
injuries, and the conduct of Mr. Bolton was such that it is just and fair
for him to pay Duecks costs. We would also make a
Sanderson
order in
favour of Cst. Provost.

AG Action

[35]

The AG seeks a
Sanderson
order and cites a number of factors that
support such an order: in the course of litigation, Mr. Bolton continued
to attribute fault to Dueck and issued a third party notice against Dueck; before
and at trial, Mr. Bolton and Dueck attempted to attribute fault to the
police; and Duecks conduct was not absolved in any way in litigation, but
liability was avoided based on the absence of a duty of care. Moreover, as
between Dueck (who carelessly stored its vehicle) and the Crown (whose servants
were not blameworthy in damage caused by Mr. Boltons conduct), the risk
of recovery of costs from Mr. Bolton ought to fall to Dueck and not the
AG.

[36]

We accept that these considerations favour a
Sanderson
order.
There is a distinction between the AGs role in the subrogation claim, and as
owner of the damaged property, from that of the Minister as respondent in the
Brundige Action. With that in mind, it is just and fair in the circumstances for
Mr. Bolton to pay Duecks costs directly. Again, Dueck is not blameless in
the events leading up to the damaged vehicles, and there was no negligence on
the part of Cst. Provost or the other police officers working with him at the
time of that collision. Mr. Bolton should pay Duecks trial and appeal
costs in the AG Action.

Summary and
Disposition

[37]

In summary, we make
Sanderson
orders in favour of all three
plaintiffs. Mr. Bolton is ordered to pay Duecks costs of the liability
and quantum trials and the liability appeal in the AG and Provost Actions. The
Minister and Mr. Bolton shall pay Duecks costs in the Brundige Action,
based on their respective shares of liability. This order is without prejudice
to any costs award made following the appeal on the subrogation issue in
the Provost Action as the decision in that appeal will not affect Duecks
liability or this order for trial costs. We also order the Minister to pay
costs to Mr. Bolton and Ms. Brundige for its unsuccessful cross‑appeal
in the Brundige Action.

The Honourable Madam Justice MacKenzie

The Honourable Mr. Justice Butler

The
Honourable Madam Justice DeWitt-Van Oosten


