Brito et al. v. Woolley et al., 2007 BCCA 1

• Judge: Donald, Saunders and Lowry, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: April 06, 2006
• Jurisdiction: British Columbia
• Citations: 2007 BCCA 1;(2007), 234 B.C.A.C. 229 (CA)

Brito v. Woolley (2007), 234 B.C.A.C. 229 (CA);

    387 W.A.C. 229

MLB headnote and full text

Temp. Cite: [2007] B.C.A.C. TBEd. JA.024

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. Dr. Harold Ewart Woolley and Dr. Shelley Ross (appellants/defendants) and Nurse Susan Omstead, Nurse Bente Pedersen and Burnaby Hospital (respondents/defendants)

(CA032874; 2007 BCCA 1)

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

British Columbia Court of Appeal

Donald, Saunders and Lowry, JJ.A.

January 5, 2007.

Summary:

Pawliuk was pregnant with twins. During delivery, one of the twins suffered brain damage when his umbilical cord prolapsed and became completely compressed, cutting off his oxygen supply. The infant had cerebral palsy which had rendered him non-verbal, spastic and quadriplegic. Pawliuk and the infant (the plaintiffs) sued the doctors, nurses and the hospital involved, alleging negligence.

The British Columbia Supreme Court, in a decision reported at [2001] B.C.T.C. 1178, dismissed the action and provisionally assessed damages. The plaintiffs appealed. The defendant doctors cross-appealed the provisional damages assessment.

The British Columbia Court of Appeal, in a decision reported 185 B.C.A.C. 1; 303 W.A.C. 1, dismissed the appeal. The court held that it was unnecessary to deal with the cross-appeal. The parties then addressed the issue of costs.

The British Columbia Supreme Court, in a decision reported at [2005] B.C.T.C. 443 ordered the successful defendants to pay the plaintiffs costs on Scale 5. The defendants appealed, with leave (see 220 B.C.A.C. 78; 362 B.C.A.C. 78 and [2005] B.C.A.C. Uned. 135).

The British Columbia Court of Appeal allowed the appeal. The plaintiffs were ordered to pay the defendants costs on Scale 4.

Practice - Topic 6967

Costs - Definitions - Costs payable in any event of the cause - [See Practice - Topic 7021 ].

Practice - Topic 7021

Costs - Party and party costs - Entitlement to - Successful party - Exceptions - Conduct (incl. counsel) - The plaintiffs' medical malpractice action was dismissed because, although they established a breach of the applicable standard of conduct, they did not establish causation - The trial judge, however, ordered the defendants to pay the plaintiffs costs on Scale 5 because their poor medical records caused the trial to be longer and more complex than it should have been and because of the tortious conduct of most of the defendants - The trial judge would have awarded the defendants costs on Scale 4 if the normal rules applied - The British Columbia Court of Appeal substituted an order awarding the successful defendants costs on Scale 4 where: (1) the state of the medical records had no connection with the trial and did not result from dishonesty; (2) the plaintiffs actually failed to establish tortious conduct since they had not established causation; and (3) the trial judge's discretionary finding that Scale 4 would have been applicable was deserving of deference.

Practice - Topic 7109

Costs - Party and party costs - Special orders - Discretion to exceed scale of costs - [See Practice - Topic 7021 ].

Practice - Topic 8301

Costs - Appeals - Appeals from order granting or denying costs - Variation of order of trial court - [See Practice - Topic 7021 ].

Cases Noticed:

British Columbia (Minister of Forests) v. Okanagan Indian Band et al., [2003] 3 S.C.R. 371; 313 N.R. 84; 189 B.C.A.C. 161; 309 W.A.C. 161; 2003 SCC 71, consd. [para. 26].

Stiles v. Workers' Compensation Board (B.C.) (1989), 38 B.C.L.R.(2d) 307 (C.A.), consd. [para. 27].

Rossmo v. Vancouver Police Board et al. (2003), 190 B.C.A.C. 121; 311 W.A.C. 121; 2003 BCCA 677, consd. [para. 28].

R.L.L. v. R.L. and J.L. (2001), 153 B.C.A.C. 280; 251 W.A.C. 280; 89 B.C.L.R.(3d) 325; 2001 BCCA 386, affing. (1999), 19 B.C.T.C. 161 (S.C.), dist. [para. 30].

Moore v. Dhillon (1993), 36 B.C.A.C. 122; 58 W.A.C. 122; 85 B.C.L.R.(2d) 69 (C.A.), dist. [para. 37].

Landry v. Bridgestone Tire Co., [1976] 3 W.W.R. 160 (B.C.S.C.), dist. [para. 37].

Campbell (Donald) & Co. v. Pollak, [1927] A.C. 732 (H.L.), dist. [para. 37].

Brown v. Black Top Cabs Ltd. et al. (No. 2) (1997), 97 B.C.A.C. 59; 157 W.A.C. 59; 43 B.C.L.R.(3d) 76 (C.A.), dist. [para. 37].

Robertson v. Canadian Imperial Bank of Commerce et al. (1997), 99 B.C.A.C. 22; 162 W.A.C. 22 (C.A.), dist. [para. 37].

Grealy v. Kuntz, [1994] B.C.T.C. Uned. 880; 27 C.P.C.(3d) 76 (S.C.), dist. [para. 37].

Bos v. Brauer et al. (1992), 174 A.R. 137; 102 W.A.C. 137 (C.A.), dist. [para. 37].

Cranwill v. James et al. (1995), 173 A.R. 376 (Q.B.), dist. [para. 37].

Mini-Mansion Construction Co. v. Agnew (1983), 24 Sask.R. 13 (Q.B.), affd. (1985), 38 Sask.R. 100 (C.A.), dist. [para. 37].

Statutes Noticed:

Rules of Court (B.C.), Supreme Court Rules, rule 57(9) [para. 25].

Counsel:

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

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

C.A. Brito, for E. Brito;

R. Pawliuk, appeared in person.

This appeal was heard at Vancouver, B.C., on April 6, 2006, by Donald, Saunders and Lowry, JJ.A., of the British Columbia Court of Appeal. The decision of the Court of Appeal was delivered at Vancouver, B.C., by Saunders, J.A., on January 5, 2007.