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Appeal Court Dicta

Civil Litigation - Bullock and Sanderson Orders

. Algra v. Comrie Estate

In Algra v. Comrie Estate (Ont CA, 2023) the Court of Appeal considered a Sanderson order:
[44] In separate reasons on costs, the motion judge reviewed the law of costs and the claims made by the parties. He then quantified the costs to be awarded for the summary judgment motions. The motion judge also determined that this was an appropriate case to make a Sanderson Order. Such an order may be made in multiple defendant cases in which the plaintiff succeeds against some, but not all, of the defendants. In certain circumstances, a court may order the unsuccessful defendant to pay not only the plaintiff’s costs but also the costs of the successful defendant(s). The motion judge ordered as follows:
. The Comrie Estate shall pay Algra her costs of $400,000 (all inclusive) on the summary judgment motions;

. The Comrie Estate and the Monteiro Estate shall jointly and severally pay Feltham her costs of $306,849.23 (all inclusive) on the summary judgment motions;

. The Comrie Estate and the Monteiro Estate shall jointly and severally pay Canada its costs of $266,247.02 (all inclusive) on the summary judgment motions;

. The Comrie Estate and the Monteiro Estate shall jointly and severally pay Ontario its costs of $210,830.12 (all inclusive) on the summary judgment motions; and

. The Comrie Estate and the Monteiro Estate shall jointly and severally pay Leamington its costs of $344,847.03 (all inclusive) on the summary judgment motions.
[45] Regarding the quantum of costs, the Estates’ position is that the costs award was not “fair and reasonable” and was not proportional with the $1,000,000 cap under the MLA. They argue that the motion judge should have scrutinized the costs sought by counsel and applied the principle of proportionality. Relying on Berry v. Scotia Capital Inc., 2010 ONSC 1948, the Estates submit that the motion judge should have taken a “step back” from the cost grid calculation to determine whether the award was fair and reasonable. They note that the Estates’ fees were much less than the $400,000 and $306,849.23 ordered for the Algra and Feltham plaintiffs. In addition, the Estates challenged the reasonableness of the Government Respondents’ costs. Overall, the Estates submit that the motion judge missed several fundamental principles and failed to consider a reasonable amount they could be expected to pay.

[46] With regard to the Sanderson Order, the Estates submit that such an order is only appropriate in rare circumstances. They assert that where an unsuccessful defendant has done nothing to cause the joinder of the successful defendant, a Sanderson Order is an error in principle. Here, the Estates contend that the motion judge made the Sanderson Order despite finding that they did not contribute to the Government Respondents being added as defendants. Further, the Estates argue that the Sanderson Order appears to be based on the motion judge’s belief that (1) it was reasonable for the plaintiffs to have sued the Government Respondents in the first place and (2) the Estates engaged in blame shifting.

[47] Finally, the Comrie Estate argues that the motion judge made a clear error in finding that it alone is responsible for the costs awarded to Algra. It submits that, because it cross-claimed against the Monteiro Estate, both estates should be jointly and severally liable for those costs.

[48] Leave to appeal a costs order will not be granted save for in obvious cases where the party seeking leave convinces the court that there are “strong grounds upon which the appellate court could find that the judge erred in exercising his discretion”: Brad-Jay Investments Limited v. Village Developments Limited, 2006 CanLII 42636 (ON CA), at para. 21, leave to appeal refused, [2007] S.C.C.A. No. 92; More v. 1362279 Ontario Ltd. (Seiko Homes), 2023 ONCA 527, at para. 32. This test imposes a high threshold because appellate courts recognize that fixing costs is highly discretionary and that trial judges are best positioned to understand the dynamics of a case and to render a costs decision that is just and reflective of what actually happened on the ground in a case.

[49] Regarding the fixing of costs in the instant case, I am not satisfied that the motion judge made any error. He carefully canvassed the law and correctly applied the relevant legal principles in determining the quantum of costs. The proposed grounds of appeal amount to a dual submission that the costs are too high and that the motion judge erred in his interpretation of what happened in the litigation. I see no error. The Estates disputed liability for ten years and should not be surprised that their position would result in the accrual of substantial legal fees. Further, while they may have a different perspective regarding what happened in the litigation, this is not an area where this court is inclined to engage or should engage given the high threshold to grant leave to appeal costs. The motion judge applied the factors under r. 57.01(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, and reached a reasonable conclusion. I would deny leave to appeal the quantum of the costs.

[50] I also see no error in the motion judge’s analysis regarding the Sanderson Order. He properly applied the two-step test as set out in Moore v. Wienecke, 2008 ONCA 162, 90 O.R. (3d) 463. On step one, he found that it was reasonable for the plaintiffs in this case to sue multiple defendants. He then considered the relevant factors in step two, including that the Estates engaged in blame shifting to the Government Respondents and that the actions against the successful defendants and the unsuccessful defendants were not independent of each other. I would deny leave to appeal.
. Rooney (Litigation Guardian of) v. Graham

In Rooney (Litigation Guardian of) v. Graham (Ont CA, 2001) the Court of Appeal considers Bullock and Sanderson orders:
[6] A Bullock order directs an unsuccessful defendant to reimburse the plaintiff for the recovered costs of a successful defendant. A Sanderson order directs that the payment go directly to the successful defendant. The [rationale] behind both orders is the same. Where the allocation of responsibility is uncertain, usually because of interwoven facts, it is often reasonable to proceed through trial against more than one defendant. In these cases, a Bullock or Sanderson order provides a plaintiff with an appropriate form of relief.

[7] A Bullock or Sanderson order has been said to be inappropriate when an independent cause of action is alleged against each defendant, for example when one is based in contract and the other in tort, or when separate actions have been instituted against each defendant. See Scarboro Golf & Country Club Ltd. v. Scarborough (City) (No. 2) (1986), 1986 CanLII 2707 (ON SC), 57 O.R. (2d) 202, 32 D.L.R. (4th) 732 (H.C.J.) and Dellelce Construction & Equipment v. Portec Inc. (1990), 1990 CanLII 6858 (ON SC), 73 O.R. (2d) 396 at p. 442, 44 C.P.C. (2d) 165 (H.C.J.).

[8] In my view, these authorities do not provide a blanket rule that a Bullock or Sanderson order can never be made when the causes of action are independent, or when separate actions are instituted. Although such circumstances may indicate the appropriateness of these orders, and will at times be determinative, each case must be assessed on its own facts. The proper approach to issuing a Bullock or Sanderson order will consider each case in its context. Thus, there may be times where the causes of action are independent or the actions separate, but it is nevertheless fair that the responsible defendant be called upon to pay for the inclusion of others in the trial proceedings.


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