Brito et al. v. Woolley et al., 2005 BCCA 357

• Judge: Southin, J.A.
• Court: Court of Appeal (British Columbia)
• Case Date: June 09, 2005
• Jurisdiction: British Columbia
• Citations: 2005 BCCA 357;(2005), 220 B.C.A.C. 78 (CA)

Brito v. Woolley (2005), 220 B.C.A.C. 78 (CA);

    362 W.A.C. 78

MLB headnote and full text

Temp. Cite: [2005] B.C.A.C. TBEd. JL.010

Elliott Neal Pawliuk Brito, an infant by his Guardian Ad Litem Rosemary Pawliuk, and Rosemary Pawliuk (respondents/plaintiffs) v. Dr. Harold Ewart Woolley and Dr. Shelley Ross (respondents/defendants) and Nurse Susan Omstead, Nurse Bente Pedersen and Burnaby Hospital (appellants/defendants)

(CA032873)

Elliott Neal Pawliuk Brito, an infant by his Guardian Ad Litem, Rosemary Pawliuk, and Rosemary Pawliuk (respondents/plaintiffs) v. Nurse Susan Omstead, Nurse Bente Pedersen and Burnaby Hospital (defendants) and Dr. Harold Ewart Woolley and Dr. Shelley Ross (appellants/defendants)

(CA032874; 2005 BCCA 357)

Indexed As: Brito et al. v. Woolley et al.

British Columbia Court of Appeal

Southin, J.A.

June 29, 2005.

Summary:

The successful defendants applied for leave to appeal against a costs order made against them.

The British Columbia Court of Appeal, per Southin, J.A., allowed the application but ordered the defendants to reformulate their grounds of appeal as grounds of law alone.

Practice - Topic 8889

Appeals - Leave to appeal - From order respecting costs - The trial judge dismissed the plaintiffs' action and, in a separate ruling, awarded them costs - The defendants sought leave to appeal against the costs order - The British Columbia Court of Appeal, per Southin, J.A., granted leave because of the "unusual" character of an order granting costs to an unsuccessful plaintiff - The court commented on the practice of separate rulings for merits and costs and said that if the costs order had been included in the judgment dismissing the action, the defendants would not have needed leave because the order would not have been "an order respecting costs only" - The court also ordered the defendants to reformulate their grounds of appeal as grounds of law alone.

Cases Noticed:

de la Giroday et al. v. Brough (1997), 92 B.C.A.C. 81; 150 W.A.C. 81; 33 B.C.L.R.(3d) 171 (C.A.), refd to. [para. 14].

CIBC Mortgage Corp. et al. v. British Columbia Insurance Co. (2005), 210 B.C.A.C. 129; 348 W.A.C. 129 (C.A.), refd to. [para. 15].

Counsel:

K.M. Wellburn, for the appellants, Dr. Woolley and Dr. Ross;

J.C. Grauer, for the appellants, S. Omstead, B. Pedersen and Burnaby Hospital;

R. Pawliuk, appearing in person;

C.A. Brito, for the respondent, E.N.P. Brito.

This application was heard at Vancouver, B.C., on June 9, 2005, by Southin, J.A., in chambers, of the British Columbia Court of Appeal, who delivered the following decision on June 29, 2005.