



COURT OF APPEAL
        FOR BRITISH COLUMBIA




Citation:



Mowatt,
                Sr. v. Anglican Church of Canada,









2004 BCCA
            23




Date: 20040114





Docket: CA026374

Between:

Floyd Stephen
      Mowatt, Sr.

Respondent

(
Plaintiff
)

And

The Anglican
      Church of Canada, The General Synod of the
Anglican Church of Canada, The Anglican Diocese of Cariboo,
The Synod of the Diocese of Cariboo



Respondents

(
Defendants
)

And

Derek Clarke
      and Her Majesty the Queen in Right of Canada
as represented by the Minister of Indian and
Northern Affairs

Appellants

(
Defendants
)



And

The Anglican
      Church of Canada and The Anglican
Diocese of Cariboo

Appellants

(Third Parties)



And

Derek Clarke
      and Her Majesty the Queen in Right of Canada
as represented by the Minister of Indian and
Northern Affairs



Appellants

(Third Parties)












Before:



The Honourable
            Mr. Justice Braidwood





The Honourable
            Mr. Justice Mackenzie





The Honourable
            Mr. Justice Low




Oral Reasons for Judgment




P. Miller



Counsel for the Appellants





R. Taylor
M. Double



Counsel for the Appellant, HMTQ (Canada)





P.R. Grant
A. Early



Counsel for the Respondet, F. Mowatt





Place and
            Date:



Vancouver, British Columbia





January 14, 2004







[1]

BRAIDWOOD,
          J.A.
: In 1993 the plaintiff Floyd Mowatt, Sr.
          (Mr. Mowatt), sued the Anglican Church of Canada, the Anglican Diocese
          of Cariboo (collectively, the Anglicans), Her Majesty the Queen in
          Right of Canada and Derek Clarke (a dormitory supervisor), claiming
          breach of fiduciary duty, negligence and vicarious liability for sexual
          assaults
          he endured while attending St. Georges Indian Residential School,
        located near Lytton, British Columbia.

[2]

Mr.
        Mowatt now appears before us seeking costs with reference to an abandoned
        appeal.  The circumstances are as follows.  Prior to trial the parties
        entered into a settlement agreement as to the quantum of damages; consequently,
        the sole issue at trial was that of liability.  Madam Justice Dillon presided
        over the trial for 21 hearing days in 1998, delivering Reasons for Judgment
        on 30 August 1999.  The terms of the trial order were settled by Reasons
        for Judgment dated 14 December 1999.  The trial judge found that the Anglicans
        and Canada were jointly and severally liable to Mr. Mowatt for sexual assaults
        committed by Clarke.  Liability was apportioned as between the Anglicans
      and Canada, 60% to the Anglicans and 40% to Canada.

[3]

On
        28 September 1999, the Anglicans filed a notice of appeal appealing the
        finding of liability against the Anglicans and the apportionment as between
        the Anglicans and Canada.  Mr. Mowatts counsel filed a notice of appearance
      on 15 October 1999.

[4]

Mr.
        Mowatt was paid the full amount of the judgment awarded by the trial
      judge soon after the trial judgment dated 30 August 1999.  Trial costs and disbursements
        were agreed upon and paid to Mr. Mowatts counsel by the end of August
        2000.  In their appeal the Anglicans sought neither the return from Mr.
        Mowatt of monies paid to him nor to alter the quantum of damages which,
        as stated, had been agreed to prior to trial.  Mr. Mowatts financial
        and legal interests would remain intact regardless of the outcome of
      the appeal.

[5]

By
        application filed out of time, on 14 June 2000, Mr. Mowatt sought an
      extension of time to cross-appeal and leave to cross-appeal.  By reasons
      and order made 29 June 2000, the Honourable Chief Justice Finch, then sitting
      as
        a justice of the Court of Appeal, dismissed Mr. Mowatts application
      for an extension of time and leave to appeal on the following grounds:

[4] In my view there is no utility
        to such an appeal.  The plaintiff has judgment for the full amount of the
        agreed damages against all defendants and there is no appeal by the Crown
        against the finding of liability on it.  Regardless of the disposition
        of the appeal brought by the Church, the plaintiff will at the end of the
        day continue to hold a judgment for the full amount of his damages against
        one or other or both of the defendants and will not be prejudiced in any
        way with respect to the execution or collection of the judgment.  Indeed,
        I am told the judgment has already been paid.



[5] I agree with the comments
        of counsel for the Crown, Mr. Taylor, who says that in effect what the
        plaintiff wishes to do is to appeal against the reasons for judgment
      rather than against the judgment itself.  That cannot be the proper foundation
        of either an appeal or a cross-appeal.  For those reasons, the application
      to extend the time to file a notice of cross-appeal is dismissed.



[6]

On
        application by Canada by reasons and order made 9 December 2002, the Honourable
        Mr. Justice Esson adjourned the hearing of the applicants appeal
sine
        die
.  The appeal had been scheduled for hearing the week of 27 January
        2003, along with the Indian Schools appeal in
Blackwater et al v.
        Plint
.  Grounds for the adjournment were that on 20 November 2002
        an agreement in principle between Canada and the Anglicans was initialled.  The
        final agreement, signed 11 March 2003, is for the resolution of issues
        as between the Anglicans and Canada and for the payment of compensation
        of validated IRS abuse claims.  What remained to be done as of December
        2002 was the ratification process for the agreement estimated to take beyond
        the end of January 2003.  The chambers judge held that it was in the interests
        of justice to adjourn the appeal.  The chambers judge noted in paragraph
        5 of the reasons that Mr. Grant, on behalf of Mr. Mowatt, took no position.  In
      fact, there is no prejudice to Mr. Mowatt for adjourning the appeal.

[7]

Moving
        now to the specifics of the argument.  There is no question that the Court
        may order costs when an appeal is abandoned, but I am of the opinion that
        it should not do so in favour of Mr. Mowatt in these circumstances.  I
      will refer very briefly to two paragraphs from his factum:

31.   When
        Mr. Mowatt learned that the Anglican Church was going to appeal Madam
      Justice Dillons decision that they were liable, he felt abused all over
      again
      by the Anglican Appellant.

32.   The
        healing and closure that the trial judgment provided Mr. Mowatt was threatened
        by the Anglican appeal.  The Anglican Defendants have denied their responsibility
        ever since the action was commenced, through the Rule 18A application,
        throughout the trial and through filing the appeal.  That denial continued
      right up to the application to abandon the appeal.

[8]

I
        am not persuaded that there is any general point of interest arising
      in that appeal.  I also am of the opinion that questions of healing and closure
        are not grounds for attempting to participate in an appeal, particularly
        here, where full compensation has both been ordered and paid by the wrongdoers
        and is not at risk.  Generally speaking, costs are to assist the successful
        party in the recovery of legal fees.  Here, obviously, Mr. Mowatt cannot
        be more successful.  The Chief Justice has indicated, as I have read
      above, that the appellant really had no role in the appeal.

[9]

Accordingly,
        I am of the opinion that costs should not be granted as claimed.  I am
        further of the opinion that in the appeal before us each party should
      bear their own costs.

[10]

MACKENZIE,
        J.A.
: I agree.

[11]

LOW,
        J.A.
: I agree.

The Honourable Mr. Justice Braidwood






