@B,00022199,OR
@1@Z20080306
@2
Moore et al. v. Wienecke et al.; ING Insurance Co. of
Canada, Third Party under
Moore v. Hayik
[Indexed as: Moore v. Wienecke]
@3
90 O.R. (3d) 463
@4
Court of Appeal for Ontario,
MacPherson, Armstrong and Epstein JJ.A.
March 6, 2008
@6
Civil procedure -- Costs -- Sanderson order -- Plaintiff
bringing actions for damages suffered in two separate motor
vehicle accidents -- Plaintiff found 100 per cent liable for
first accident and entirely successful in second action
-- Trial judge erring in making Sanderson order requiring
unsuccessful defendant to pay costs awarded against plaintiff
to successful defendant in first action -- Threshold for making
Sanderson order met as it was reasonable that defendants be
tried together -- Sanderson order not appropriate as defendants
did not attempt to shift blame onto each other, unsuccessful
defendant did not cause successful defendant to be added as
party, and plaintiff had ability to pay costs awarded in favour
of successful defendants -- Sanderson order set aside.
Civil procedure -- Trial -- Jury trial -- Striking jury --
Plaintiff bringing actions for damages suffered in two separate
motor vehicle accidents -- Defendants in both actions serving
jury notices -- Trial judge striking jury after hearing 12 days
of evidence because of complexity of dealing with plaintiff who
had suffered many injuries in numerous accidents over 20-year
period and because plaintiff had suffered serious brain injury
in previous accident that would make it difficult for jury to
assess his credibility -- Decision to strike jury not
unreasonable.
The plaintiff was injured in two motor vehicle accidents, one
in 1998 and one in 2002. He brought actions with respect to
both accidents. The defendants in both actions served jury
notices. After hearing 12 days of evidence, the trial judge
struck the jury. She ultimately found that the plaintiff was
100 per cent liable for the 1998 accident and that the
defendant H was 100 per cent liable for the 2002 accident. In
the second action, she awarded the plaintiff $45,000 for
general damages, $349,687 for future loss of income and $31,500
for future maintenance. She awarded the plaintiff costs in the
second action, and also made a Sanderson order requiring H to
pay the costs which were awarded against the plaintiff to the
successful defendants in the first action. H appealed.
Held, the appeal should be allowed in part.
The trial judge struck the jury notice because of the
complexity of dealing with a plaintiff who had suffered many
injuries from five motor vehicle accidents and a number of
other accidents over a 20-year period and because the plaintiff
had suffered a serious brain injury in a motorcycle accident
several years before the 1998 accident, which would make it
very difficult for a jury to assess his credibility. The
decision to strike the jury was reasonable.
The trial judge applied the correct legal test for
determining causation in a case where there is more than one
potential cause for the loss. While she referred to the
"material contribution" test, it was clear from her reasons
as a whole that she applied the "but for" test. [page464]
The trial judge made no error in her assessment of damages.
The usual test for determining whether a Sanderson order is
appropriate has two steps. First, courts ask a threshold
question: whether it was reasonable to join the several
defendants together in one action. If the answer is yes, courts
must use their discretion to determine whether a Sanderson
order would be just and fair in the circumstances. In this
case, the threshold for making a Sanderson order was met.
Because of the plausibility of the plaintiff's claims against
both defendants, as well as the overlapping facts relating to
his injuries, it was reasonable that the two defendants be
tried together. At the second step, the trial judge did not
take into account several factors that strongly pointed against
a Sanderson order. The defendants did not attempt to shift
responsibility onto each other; rather, the two trials
proceeded relatively independently. H did not cause the
successful defendant to be added as a party; that decision was
the plaintiff's. The two causes of action were independent of
each ot her, relating to accidents that occurred four years
apart. Finally, the plaintiff was very successful in the
blended trial even though he lost the first action completely,
so there was no question of his ability to pay costs and no
unfairness in following the usual rule requiring him to pay the
costs of the action he lost. The Sanderson component of the
costs order should be set aside.
@5
Cases referred to
Andrews v. Grand & Toy Alberta Ltd., 1978 CanLII 1 (SCC), [1978] 2 S.C.R. 229,
1978 CanLII 1 (SCC), [1978] S.C.J. No. 6, 83 D.L.R. (3d) 452, 19 N.R. 50,
1978 CanLII 1 (SCC), [1978] 1 W.W.R. 577, 8 A.R. 182, 3 C.C.L.T. 225, [1978] 1
A.C.W.S. 218; Athey v. Leonati, 1996 CanLII 183 (SCC), [1996] 3 S.C.R. 458, [1996]
S.C.J. No. 102, 1996 CanLII 183 (SCC), 140 D.L.R. (4th) 235, 203 N.R. 36, [1997] 1
W.W.R. 97, 1996 CanLII 183 (SCC), 81 B.C.A.C. 243, 31 C.C.L.T. (2d) 113, 66 A.C.W.S.
(3d) 578; Babcock v. Carr (1981), 1981 CanLII 1621 (ON SC), 34 O.R. (2d) 65, [1981]
O.J. No. 3102, 1981 CanLII 2894 (ON SC), 127 D.L.R. (3d) 77, 10 A.C.W.S. (2d) 526
(H.C.J.); Cheskin v. Schrage, [1986] O.J. No. 680, 10
C.P.C. (2d) 150, 1986 CanLII 4040 (ON SCDC), 38 A.C.W.S. (2d) 293 (H.C.J.); Cowles v.
Balac (2006), 2006 CanLII 34916 (ON CA), 83 O.R. (3d) 660, [2006] O.J. No. 4177, 273
D.L.R. (4th) 596, 2006 CanLII 34916 (ON CA), 216 O.A.C. 268, 41 C.C.L.I. (4th) 227, 42
C.C.L.T. (3d) 161, 2006 CanLII 34916 (ON CA), 151 A.C.W.S. (3d) 1044 (C.A.) [Leave to
appeal to S.C.C. refused [2006] S.C.C.A. No. 496]; Eichmanis
v. Wawanesa Mutual Insurance Co. (2007), 2007 ONCA 92, 84 O.R. (3d) 668,
[2007] O.J. No. 482, 2007 ONCA 92, 278 D.L.R. (4th) 15,
2007 ONCA 92, 221 O.A.C. 1, 45 C.C.L.I. (4th)
18, 2007 ONCA 92, [2007] I.L.R. I-4590, 155 A.C.W.S. (3d) 436 [Leave to
appeal to S.C.C. refused [2007] S.C.C.A. No. 178]; Hamilton
v. Open Window Bakery Ltd., 2004 SCC 9, [2004] 1 S.C.R. 303, [2003]
S.C.J. No. 72, 2004 SCC 9, 235 D.L.R. (4th) 193, 316 N.R.
265, 2004 SCC 9, J.E. 2004-470, 184 O.A.C. 209, 40 B.L.R. (3d) 1; Housen
v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, [2002] S.C.J. No. 31,
2002 SCC 33, 211 D.L.R. (4th) 577, 286 N.R. 1, [2002] 7
W.W.R. 1, 2002 SCC 33, J.E. 2002-617, 219 Sask. R. 1, 10 C.C.L.T. (3d)
157, 2002 SCC 33, 30 M.P.L.R. (3d) 1, 112 A.C.W.S. (3d) 991; King v.
Colonial Homes Ltd., 1956 CanLII 13 (SCC), [1956] S.C.R. 528, [1956] S.C.J. No. 32,
1956 CanLII 13 (SCC), 4 D.L.R. (2d) 561; Resurfice Corp. v. Hanke, [2007] 1 S.C.R.
333, [2007] S.C.J. No. 7, 2007 SCC 7, 278 D.L.R. (4th) 643,
2007 SCC 7, 357 N.R. 175, [2007] 4 W.W.R. 1, J.E. 2007-333, 69 Alta. L.R.
(4th) 1, 2007 SCC 7, 404 A.R. 333, [2007] R.R.A. 1, 45 C.C.L.T. (3d)
1, 2007 SCC 7, 153 A.C.W.S. (3d) 1012, EYB 2007-113553; Scarborough Golf
& Country Club v. Scarborough (City) (1988), 66 O.R. (2d)
257, 1988 CanLII 4829 (ON CA), [1988] O.J. No. 1981, 54
D.L.R. (4th) 1, 1988 CanLII 4829 (ON CA), 31 O.A.C. 260, 41 M.P.L.R. 1, 1 R.P.R. (2d)
225, 1988 CanLII 4829 (ON CA), 13 A.C.W.S. (3d) 43 (C.A.); Snell v. Farrell, [1990] 2
S.C.R. 311, 1990 CanLII 70 (SCC), [1990] S.C.J. No. 73, 72 D.L.R. (4th) 289, 110
N.R. 200, 1990 CanLII 70 (SCC), J.E. 90-1175, 107 N.B.R. (2d) 94, [1990] R.R.A. 660,
1990 CanLII 70 (SCC), 4 C.C.L.T. (2d) 229, 22 A.C.W.S. (3d) 493; Times Square
Holdings Ltd. v. Shimizu, 2001 BCCA 667, [2001] B.C.J. No. 2419, 2001 BCCA
667, 2001 BCCA 667, 159 B.C.A.C. 124, 95 B.C.L.R. (3d) 234, 109 A.C.W.S.
(3d) 565; Walker Estate v. York Finch General Hospital,
[2001] 1 S.C.R. 647, [2001] S.C.J. No. 24, 2001 SCC 23,
2001 SCC 23, 198 D.L.R. (4th) 193, 268 N.R. 68, J.E. 2001-878, 145 O.A.C.
302, 2001 SCC 23, 6 C.C.L.T. (3d) 1, 5 C.P.C. (5th) 1, 104 A.C.W.S. (3d)
426 [page465]
Rules and regulations referred to
Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Rule 49 [as
am.]
Authorities referred to
Orkin, M.M., The Law of Costs, 2nd ed., looseleaf (Aurora,
Ont.: Canada Law Book, 1987)
@6
APPEAL by the defendant from the judgment of Mesbur J.,
[2006] O.J. No. 202, [2006] O.T.C. 50 (S.C.J.) and [2006]
O.J. No. 2044, [2006] O.T.C. 50 (S.C.J.), for the plaintiff in
a personal injury action and from a cost order.
@8
Sheldon Gilbert, Q.C. and Shawn Stringer, for appellant.
David Neill, for respondent Benjamin Garfield Moore.
Dan Rabinowitz, for respondent Dunkerron Elevators Inc.
@7
The judgment of the court was delivered by
MACPHERSON J.A.: --
A. Introduction
Introduction
1Benjamin Moore was involved in two motor vehicle
accidents, one in 1998 and the other in 2002. He brought
actions with respect to both accidents.
[2] Justice Mesbur presided over a blended trial of both
actions. The trial began with a jury, which the trial judge
discharged after several days of testimony.
[3] At the conclusion of the trial, the trial judge found
Moore 100 per cent responsible for the 1998 accident. She found
the defendant George Hayik 100 per cent liable for the 2002
accident.
[4] The trial judge awarded damages to Moore relating to the
second accident of, inter alia, $349,687 for future loss of
income and $31,500 for future maintenance.
[5] The trial judge awarded Moore costs of his action against
Hayik fixed at $134,423.69. She also made a Sanderson order
requiring Hayik to pay Moore's costs of $109,727.81 in Moore's
unsuccessful action relating to the 1998 accident.
[6] Hayik appeals the trial judgment. The appeal raises
issues relating to the striking of a jury in a civil trial, the
legal test for liability in a two-accident blended trial, the
quantification of damages for future loss of income and future
maintenance, and the circumstances in which a Sanderson costs
order is appropriate. [page466]
B. Facts
(1) The parties and the events
Facts
7The respondent, Benjamin Moore, suffered a broken back in
a motorcycle accident in 1986. In another motorcycle accident
in 1991, he sustained a serious brain injury.
[8] On September 25, 1998, the respondent was involved in a
motor vehicle accident with a tractor-trailer driven by Peter
Wienecke. He sustained soft tissue injury to his neck and left
knee, a laceration to his left ear, cuts and bruises to his
left arm, and dislocation of the fourth toe of his left foot.
He was treated at St. Michael's Hospital, which included having
his left leg placed in a cast, and was released a day later. On
October 5, 1998, Moore underwent surgery at York Central
Hospital to reduce the toe dislocation. In January 1999, a
second surgery was performed to repair cartilage and ligament
damage in his left knee.
[9] On February 16, 2002, the respondent was involved in a
motor vehicle accident with a car driven by George Hayik.
Following this accident, the respondent complained of increased
headaches and soft tissue injuries to his neck and upper back.
(2) The trial
The Trial
10The respondent brought actions against Wienecke and
Dunkerron Elevators Inc., the owner of the tractor-trailer
involved in the 1998 accident, and Hayik, the owner-driver of
the car involved in the 2002 accident. The defendants in both
actions served jury notices.
[11] A blended trial of the two actions commenced before
Mesbur J. on October 31, 2005. After hearing 12 days of
evidence, the trial judge struck the jury.
[12] On January 18, 2006, the trial judge released a 53-page
(261 paragraph) judgment. The trial judge found that Moore
was 100 per cent liable for the 1998 accident and Hayik was 100
per cent liable for the 2002 accident.
[13] In the second action, the trial judge awarded Moore
$45,000 for general damages, $349,687 for future loss of income
and $31,500 for future maintenance.
[14] In reasons released on May 24, 2006, the trial judge
awarded Moore costs of $134,423.69 in the second action. She
also made a Sanderson order to the effect that Hayik, the
defendant in the second action, pay costs of $109,727.81
(awarded against Moore) to the successful defendants in the
first action.
[15] The appellant Hayik appeals virtually all aspects of the
trial judgment -- striking the jury, liability, damages for
future [page467] loss of income and future maintenance and the
Sanderson component of the costs order.
[16] There are other facts relevant to the disposition of the
appeal. In my view, it is more helpful to address them in the
context of the specific issue or issues to which they relate.
C. Issues
Issues
17The appellant advances four issues on the appeal, which
I would frame in terms of these questions:
(1) Did the trial judge err by striking the jury?
(2) Did the trial judge apply the wrong legal test on the
question of liability?
(3) Did the trial judge err in her assessment of damages
for:
(a) future loss of income, and
(b) future maintenance?
(4) Did the trial judge err by making a Sanderson costs
order?
D. Analysis
Preliminary observation
Analysis
18The blended trial in these proceedings took place over
21 court days between October 31 and December 2, 2005. The
trial judge delivered well-organized, clearly written and
comprehensive reasons for judgment six weeks later, on January
18, 2006. The progress of the trial and the process and
contents of the judgment are a model of how to conduct a
difficult and nuanced civil trial.
(1) Striking the jury
Striking the Jury
19The appellant contends that the trial judge erred, near
the end of the first of the two blended trials and after 12
days of testimony, by striking the jury. The starting point for
the appellant's submission is the proposition that a trial by
jury in a civil case is a substantive right that should not be
taken away without just cause or cogent reasons: see King v.
Colonial Homes Ltd., 1956 CanLII 13 (SCC), [1956] S.C.R. 528, [1956] S.C.J. No. 32.
The appellant submits that this was a typical thin-skull case
well-suited to a jury and that the trial judge was provided
with a well-known model jury charge from a trial very similar
to this trial. Finally, the appellant points out that in her
ruling striking the jury, the [page468] trial judge was
particularly complimentary about this jury, describing it as
"interested, engaged and observant".
[20] The leading case in Ontario dealing with striking a jury
in a civil trial is Cowles v. Balac (2006), 2006 CanLII 34916 (ON CA), 83 O.R. (3d) 660,
2006 CanLII 34916 (ON CA), [2006] O.J. No. 4177 (C.A.). In that case, O'Connor A.C.J.O.
discussed the circumstances in which an appellate court may
overturn a trial judge's ruling to strike a jury. In my view,
an accurate summary of O'Connor A.C.J.O.'s discussion is found
at paras. 40 and 52:
Appellate review of a trial court's exercise of its
discretion to dispense with a jury is limited. In Kostopoulos
v. Jesshope, Robins J.A. set out the well accepted standard
for appellate review as follows:
I think it manifest from the authorities that before an
appellate court may properly intervene it must be shown
that the discretion was exercised arbitrarily or
capriciously or was based upon a wrong or inapplicable
principle of law.
The test is whether there were cogent reasons for the
exercise of the discretion, King, supra, or, as I would word
it, was there a reasonable basis for the trial judge's
exercise of discretion? If the circumstances are such that
there was no reasonable basis for the conclusion reached,
then the trial judge will have made a reversible error.
(Emphasis added, citations omitted)
[21] In my view, the trial judge's exercise of her discretion
to strike the jury was far removed from being arbitrary,
capricious or unreasonable. The trial judge explicitly
recognized that the right to a jury trial was an important
substantive right. She identified and gave weight to the
arguments in favour of keeping the jury, including her own
favourable impression of the jury's performance during the
trial.
[22] However, in the end, the trial judge struck the jury for
two reasons: first, the complexity of dealing with a person
(Moore) who had suffered many injuries from five motor
vehicle accidents (four as a driver and one as a passenger), a
fall down stairs, a fall off a ladder, a slip-and-fall
accident, and back strain from gardening, all over
approximately a 20-year period; and, second, the fact that
Moore had suffered a serious brain injury in a motorcycle
accident several years before the 1998 and 2002 motor vehicle
accidents, which would make it very difficult for a jury to
assess his credibility, "particularly in the context of his
reporting of symptoms to his various physicians, but against
the backdrop of the sequelae of his brain injury as that
affects his ability to properly report or follow through".
[23] On the complexity point, the trial judge summarized her
reasoning in this fashion: "Trying to come to terms with all
these [page469] pre-, post-and inter-accident events would
overwhelm the jury." On the implications of Moore's serious
brain injury before the 1998 and 2002 accidents, the trial
judge relied on the testimony of Dr. Doxey, the vocational
psychologist who had examined Moore in 1997, before both
accidents, and again in 2004, after both accidents. The trial
judge said: "Dr. Doxey himself stated that the plaintiff
presented one of the most complex cases he has ever had to deal
with in nearly 30 years of clinical practice."
[24] In her ruling, the trial judge said that "[e]ssentially,
each case requires an analysis of the particular facts and
issues that its particular jury must decide in that particular
case." In my view, the trial judge conducted a careful and
proper analysis. Her decision to strike the jury was not the
only possibility; it was, however, a reasonable decision.
(2) Liability
Liability
25The appellant contends that the trial judge applied the
wrong legal test for determining causation in a case where
there is more than one potential cause for the loss. The
appellant submits that the trial judge applied the "material
contribution" test for causation, a test that was significantly
narrowed by the Supreme Court of Canada in its recent
(admittedly, after the trial judgment in this case) decision
in Resurfice Corp. v. Hanke, 2007 SCC 7, [2007] 1 S.C.R. 333, [2007] S.C.J.
No. 7. In particular, the appellant relies on McLachlin
C.J.C.'s statement of the law at para. 21: "[T]he basic test
for causation remains the 'but for' test."
[26] I disagree. In my view, although the trial judge did
refer to the 'material contribution' test, her reasons, read
as a whole, are consistent with the leading cases dealing with
causation in negligence cases, including Resurfice Corp.,
supra; Snell v. Farrell, 1990 CanLII 70 (SCC), [1990] 2 S.C.R. 311, [1990] S.C.J. No.
73; Athey v. Leonati, 1996 CanLII 183 (SCC), [1996] 3 S.C.R. 458, [1996] S.C.J. No.
102; and Walker Estate v. York Finch General Hospital, [2001] 1
S.C.R. 647, 2001 SCC 23, [2001] S.C.J. No. 24.
[27] The trial judge gave careful, and separate, attention to
the 2002 accident and the injuries and losses it caused. She
carefully reviewed the testimony of a large number of medical
witnesses and made conclusions based on their testimony that
are consistent with a 'but for' analysis.
[28] For example, on the question of employability, the trial
judge reasoned [at paras. 173-174]:
Although Mr. Moore had been laid off from his job at
Wirecomm a few weeks before the [2002] accident, the very day
of the accident, he was on his way to see about the
possibility of a new job -- even though it would likely be in
Milton -- a far distance from his home. [page470]
Mr. Moore's hold on productive employment was tenuous, and
might, as Dr. Kriry predicted, change if there were further
stresses in his life. The 2002 accident created just such a
stress. It is clear that, as Dr. Scher testified, supported
by Mr. Moore's family members, this was the event that "broke
the camel's back", and "finished him off" as far as his
ability to function is concerned.
[29] Similarly, on the question of physical injury, pain and
psychological effects, the trial judge concluded [at para.
223]:
I am satisfied that Mr. Moore continues to suffer from
significant pain in his upper back, and it interferes with
his ability to function both cognitively and psychologically.
This pain is a direct result of the 2002 accident. While soft
tissue injuries like these might not generally cause this
lingering pain, in Mr. Moore's case, they have. Mr. Moore was
a particularly vulnerable plaintiff because of his pre-
existing brain injury. I am also satisfied that as a
result, Mr. Moore's cognitive and emotional function have
been impaired, and he suffers from more anxiety, depression
and fatigue than he did before. This final accident in the
long history of motor vehicle accidents has been the one to
put him over the edge into constant pain and virtual
unemployability.
[30] In summary, I am of the view that the trial judge
applied the appropriate legal principles for determining
causation in a multiple accident/multiple injury case.
(3) Damages
Damages
31The appellant challenges two components of the trial
judge's assessment of damages: the $349,687 award for future
loss of income and the $31,500 award for future maintenance.
The appellant concedes that the test he must meet on this
aspect of the appeal is to demonstrate that the trial judge
made a palpable and overriding error in awarding these damages:
see Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, [2002] S.C.J.
No. 31.
(a) Future loss of income
Future Loss of Income
32The appellant contends that the trial judge committed a
palpable and overriding error by concluding that the
respondent's residual earning capacity was severely diminished
as a result of the 1991 accident.
[33] I disagree. The trial judge's conclusion regarding the
effect of the 2002 accident on the respondent's residual
employability was based on ample expert evidence, especially
from Dr. Scher and Dr. Doxey. Moreover, the trial judge's
conclusion that the respondent's post-accident employment at
Mattamy Homes was "benevolent" and, therefore, uncertain was
also supported by the evidence. I can find no basis for
interfering with her ultimate conclusion that [at para. 224] "I
would put his remaining earning capacity at about 10% of what
it was following the 1991 accident" [page471] and with her
calculation of damages for future loss of income flowing
therefrom.
(b) Future maintenance
Future Maintenance
34The appellant contends that the trial judge committed a
palpable and overriding error by awarding the respondent
damages of $31,500 for future care and maintenance. The basis
for this submission is that the respondent has received
assistance gratis from family members since his serious
motorcycle accident in 1991 and this assistance is likely to
continue.
[35] I disagree. I observe that the trial judge's award in
this category was very low -- $2,000 per year until age 75. The
respondent had sought compensation for future maintenance of
almost $16,000 per year. The trial judge was highly critical of
this component of the respondent's claim; she said that [at
para. 246] "the claim for future care is excessive in terms of
what I believe Mr. Moore can actually now do, and what he will
need in the future".
[36] Moreover, the fact that the respondent's family has
helped him with the tasks of daily living in the past, and may
well continue to do so, is irrelevant. As expressed by Dickson
J. in Andrews v. Grand & Toy Alberta Ltd., 1978 CanLII 1 (SCC), [1978] 2 S.C.R. 229,
1978 CanLII 1 (SCC), [1978] S.C.J. No. 6, at p. 243 S.C.R., "there is now ample
authority for saying that dedicated wives or mothers who choose
to devote their lives to looking after infirm husbands or sons
are not expected to do so on a gratuitous basis".
(4) The Sanderson costs order
The Sanderson Costs Order
37In a multiple-defendant case in which the plaintiff
succeeds against some defendants but not against others, the
"normal course" is for the unsuccessful defendant to pay the
plaintiff's costs and the plaintiff to pay the successful
defendant's costs: see Mark M. Orkin, The Law of Costs, 2nd
ed., looseleaf (Aurora, Ont.: Canada Law Book, 1987), at 2-108.
Sanderson orders -- like Bullock orders, which are based on the
same rationale -- are exceptions to that general rule.
[38] In her costs reasons [[2006] O.J. No. 2044], the trial
judge accurately explained the rationale for, and the contents
of, Sanderson and Bullock orders [at para. 11]:
Bullock and Sanderson orders are relevant where there are
multiple defendants, and the plaintiff succeeds against some,
but not all of them. The general rule is that the plaintiff
is entitled to costs against the unsuccessful defendant, and
the successful defendant is entitled to costs against the
plaintiff. In some circumstances, that can lead to an unjust
result. Bullock and Sanderson orders alleviate that
injustice. In either case, the unsuccessful [page472]
defendant is responsible for paying the successful
defendant's costs, either directly, or indirectly. The
difference in the two types of orders is whether the
unsuccessful defendant reimburses the plaintiff for the
successful defendant's costs (a Bullock order), or whether
the unsuccessful defendant pays the successful defendant's
costs directly, (a Sanderson order).
[39] The trial judge then considered whether a Sanderson
order was appropriate. She concluded that it was; the core of
her reasoning is set out in this passage [at para. 17]:
I am satisfied that it is fair in all the circumstances of
this complex case to shift the costs burden to the
unsuccessful defendant, Mr. Hayik. The issue of liability in
the 1998 accident was by no means a foregone conclusion. As
Mr. Neill points out, there was expert evidence pointing to
the accident having occurred in Mr. Moore's lane, which would
have suggested a different liability outcome. There was also
the question of Mr. Wienecke's having had some beer before
driving the tractor-trailor. This too made apportionment of
liability a live issue. It was thus reasonable to keep the
Dunkerron/Wienecke defendants in the action until the
conclusion of the trial. Justice in the case as a whole could
not have been done without both actions being tried together
to their conclusion. It is my view that the interests of
justice therefore require the unsuccessful defendant to be
responsible for the successful defendant's costs.
(Emphasis added)
[40] I recognize that appellate review of a trial judge's
decision to make or not make a Sanderson order is subject to
the deferential standard associated with costs issues in
general. Unless "plainly wrong", costs awards are not to be set
aside: see Hamilton v. Open Window Bakery Ltd., [2004] 1 S.C.R.
303, 2004 SCC 9, [2003] S.C.J. No. 72. Nevertheless, with respect, in my
view, the Sanderson order in this case falls into this category
of error.
[41] The usual test for determining whether a Sanderson order
is appropriate has two steps: see Times Square Holdings Ltd. v.
Shimizu, [2001] B.C.J. No. 2419, 2001 BCCA 667, at para. 9.
First, courts ask a threshold question: whether it was
reasonable to join the several defendants together in one
action. If the answer to that threshold question is Yes, courts
must use their discretion to determine whether a Sanderson
order would be just and fair in the circumstances. In practice,
courts deciding whether to issue a Sanderson order do not
always explicitly follow this two-step procedure. Sometimes
they appear to skip a step. Sometimes they blend the steps
together. This lack of strict adherence may be partly due to
the fact that courts do not always offer detailed reasons
regarding costs matters.
[42] In my view, the trial judge conflated these two steps.
This is clear from the last two sentences in the paragraph from
her reasons set out above. Her analysis on the first step, the
threshold question, was thorough; however, she was almost
silent on [page473] the second step and did not take into
account several factors that point strongly against a Sanderson
order.
(a) Step 1 -- threshold
Step 1 -- Threshold
43It was clearly reasonable that the two defendants,
Wienecke/Dunkerron and Hayik, be tried together. In saying
this, I suggest two things: first, Moore's independent
decisions to sue Wienecke/Dunkerron and Hayik were reasonable;
and, second, it was reasonable to bring the claims together in
a single trial. The following statements by the trial judge,
with which I see no reason to disagree, support the conclusion
that a joint action was reasonable -- "The issue of liability
in the 1998 accident was by no means a foregone conclusion" [at
para. 17] and "Although both accidents were separate events,
the question of the extent to which either or both contributed
to the plaintiff's injuries creates a sufficient factual link
between them to support a Bullock or a Sanderson order" [at
para. 16].
[44] In summary, because of the plausibility of Moore's
claims against both defendants, as well as the overlapping
facts relating to Moore's injuries, it was reasonable to join
the two claims together. Accordingly, the threshold test for
making a Sanderson order was met.
(b) Step 2 -- exercise of discretion
Step 2 -- Exercise of Discretion
45The case law suggests a number of factors that are
relevant to the decision whether to exercise the court's
discretion and grant a Sanderson order. These factors need not
be applied mechanically in every case; after all, the
determination is discretionary. Nevertheless, a review of the
relevant factors is necessary to determine if the trial judge's
exercise of discretion was in error.
[46] Perhaps the foremost consideration is whether the
defendants at the trial tried to shift responsibility onto each
other, as opposed to concentrating on meeting the plaintiff's
case. As expressed somewhat vividly by Eberle J. in Cheskin v.
Schrage, [1986] O.J. No. 680, 10 C.P.C. (2d) 150 (H.C.J.), at
p. 154 C.P.C.: did "each defendant [try] to load the lion's
share of the plaintiff's damages on the other"?
[47] Such attempts at shifting did not happen in this blended
trial. Rather, the two trials proceeded relatively
independently. Counsel for both defendants spent little cross-
examination time trying to show that the other of the 1998
and 2002 accidents was responsible for Moore's condition.
Rather, most of their efforts were directed at two areas:
first, establishing that pre-1998 [page474] events, especially
the 1991 motorcycle accident, were the source of Moore's
problem; and, second, undermining the evidence supporting a
finding that the accident involving their client caused Moore's
injuries.
[48] A second factor from the case law is whether the
unsuccessful defendant caused the successful defendant to be
added as a party: see Babcock v. Carr (1981), 1981 CanLII 1621 (ON SC), 34 O.R. (2d) 65,
1981 CanLII 2894 (ON SC), [1981] O.J. No. 3102, 127 D.L.R. (3d) 77 (H.C.J.) and
Eichmanis v. Wawanesa Mutual Insurance Co. (2007), 84 O.R. (3d)
668, 2007 ONCA 92, [2007] O.J. No. 482, 278 D.L.R. (4th) 15 (C.A.), at para.
- It is clear in this case that the decision to involve
Wienecke/Dunkerron was Moore's decision, not Hayik's.
[49] A third factor from the case law is whether the two
causes of action were independent of each other: see
Scarborough Golf & Country Club v. Scarborough (City) (1988),
1988 CanLII 4829 (ON CA), 66 O.R. (2d) 257, [1988] O.J. No. 1981 (C.A.). Here, the two
causes of action related not to the same incident, but rather
to accidents that occurred four years apart.
[50] Fourth, there is reference in some of the cases to
ability to pay: see Cheskin v. Schrage, supra, at p. 154 C.P.C.
In the second action, Moore was awarded damages of $426,187 and
costs of $134,423.69. However, in the first action, which Moore
lost, the costs award in favour of Dunkerron Elevators Inc. was
$109,727.81. Moreover, in her costs endorsement, the trial
judge referred to a settlement offer (albeit not a Rule 49 [of
the Rules of Civil Procedure, R.R.O. 1990, Reg. 194] offer) by
Moore of $125,000 all inclusive with respect to both actions.
It is clear from these numbers that Moore was very successful
in the blended trial even though he lost the first action
completely. In these circumstances, I see no unfairness in
following the usual rule of requiring him to pay the costs of
the action he lost.
E. Disposition
Disposition
51I would dismiss the appeal on all issues except the
Sanderson costs order. I would allow the appeal on that issue,
set aside the Sanderson component of the costs order, and
substitute an order that the respondent pay the costs of
Dunkerron Elevators Inc. fixed at $109,727.81 inclusive of
disbursements and GST.
[52] Success on the appeal is divided but, globally, favours
the respondent. I would award the respondent costs of the
appeal fixed at $20,000 inclusive of disbursements and GST. I
would make no costs order with respect to Dunkerron Elevators
Inc.
Appeal allowed in part.
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