Bronson et al. v. Hewitt et al., 2011 BCCA 349

• Judge: Saunders, J.A.
• Court: Court of Appeal (British Columbia)
• Case Date: June 02, 2011
• Jurisdiction: British Columbia
• Citations: 2011 BCCA 349;(2011), 309 B.C.A.C. 163 (CA)

Bronson v. Hewitt (2011), 309 B.C.A.C. 163 (CA);

    523 W.A.C. 163

MLB headnote and full text

Temp. Cite: [2011] B.C.A.C. TBEd. AU.024

Thomas E. Bronson, J. Tom Bronson, Lee B. Lewis, Virginia L. Shaffer, H. Davis Lewis, Jr., and Harold D. Lewis, Sr. (respondents/appellants on cross-appeal/plaintiffs) v. Howard H. Hewitt (appellant/respondent on cross-appeal/defendant) and A. Eugene Lewis, Margaret H. Mason, Bull, Housser & Tupper, and Bull, Housser & Tupper LLP (respondents on cross-appeal/defendants) and Jennifer Lewis Browning, Julie Anne Lewis, William David Tompkins, in his capacity as Trustee of the Graham River Trust, and Graham River Outfitters Ltd. (defendants)

(CA037941)

Thomas E. Bronson, J. Tom Bronson, Lee B. Lewis, Virginia L. Shaffer, H. Davis Lewis, Jr., and Harold D. Lewis, Sr. (respondents/appellants on cross-appeal/plaintiffs) v. A. Eugene Lewis (appellant/respondent on cross-appeal/defendant) and Howard H. Hewitt, Margaret H. Mason, Bull, Housser & Tupper, and Bull, Housser & Tupper LLP (respondents on cross-appeal/defendants) and Jennifer Lewis Browning, Julie Anne Lewis, William David Tompkins, in his capacity as Trustee of the Graham River Trust, and Graham River Outfitters Ltd. (defendants)

(CA037947; 2011 BCCA 349)

Indexed As: Bronson et al. v. Hewitt et al.

British Columbia Court of Appeal

Saunders, J.A.

August 16, 2011.

Summary:

The plaintiffs alleged that Hewitt committed a breach of trust. Mason and her law firm represented Hewitt until Mason was joined as a defendant when the applicants alleged that Mason and another, Lewis, knowingly assisted Hewitt in breaching the trust. The actions against Hewitt and Lewis were allowed. The action against Mason and her firm was dismissed with an order of special costs against the plaintiffs of $575,000. In making that order, the trial judge dismissed the plaintiffs' request for a Bullock or Sanderson order. Hewitt and Lewis filed notices of appeal. The plaintiffs filed cross-appeals. Mason and her firm were not named as parties to the appeals or cross-appeals. The plaintiffs did not appeal the dismissal of the action against Mason and her firm, but did appeal the order of special costs. Mason and her firm applied for an order declaring the appeal proceedings against them a nullity or an order dismissing the appeal for failure to obtain leave to appeal.

The British Columbia Court of Appeal, per Saunders, J.A., allowed the application. Under s. 7(2)(b) of the Court of Appeal Act, the plaintiffs required leave to appeal. The appeal was a nullity for failure to comply with the Court of Appeal Rules.

Practice - Topic 8298

Costs - Appeals - Appeals from order granting or denying costs - Requirement of leave to appeal - The plaintiffs alleged that Hewitt committed a breach of trust - Mason and her law firm represented Hewitt until Mason was joined as a defendant when the applicants alleged that Mason and another, Lewis, knowingly assisted Hewitt in breaching the trust - The action against Hewitt and Lewis was allowed - The action against Mason and her firm was dismissed with an order of special costs against the plaintiffs of $575,000 - In making that order, the trial judge dismissed the plaintiffs' request for a Bullock or Sanderson order - Hewitt and Lewis filed notices of appeal - The plaintiffs filed cross-appeals - Mason and her firm were not named as parties to the appeals or cross-appeals - The plaintiffs did not appeal the dismissal of the action against Mason and her firm, but did appeal the order of special costs - Mason and her firm applied for an order declaring the appeal proceedings against them a nullity or an order dismissing the appeal for failure to obtain leave to appeal - The British Columbia Court of Appeal, per Saunders, J.A., allowed the application - As against Hewitt and Lewis, the plaintiffs were entitled to appeal the special costs order, including the refusal to make a Bullock or Sanderson order - Mason and her firm had no interest regarding the Bullock order - Therefore, the only order still disputed between Mason and her firm and the plaintiffs was the costs order, primarily, and the Sanderson order, secondarily - These were both issues on costs only - Under s. 7(2)(b) of the Court of Appeal Act, the plaintiffs required leave to appeal - The appeal was a nullity for failure to comply with the Court of Appeal Rules.

Cases Noticed:

Grassi v. WIC Radio Ltd. et al. (2001), 153 B.C.A.C. 305; 251 W.A.C. 305; 2001 BCCA 376, dist. [para. 18].

Cosgrove v. L & C Canada Coastal Aviation Inc. et al., [2009] B.C.A.C. Uned. 77; 2009 BCCA 397, dist. [para. 18].

Jamieson v. Loureiro (2009), 275 B.C.A.C. 3; 465 W.A.C. 3; 2009 BCCA 254, dist. [para. 18].

CIBC Mortgage Corp. et al. v. British Columbia Insurance Co. (2005), 210 B.C.A.C. 129; 348 W.A.C. 129; 2005 BCCA 137, dist. [para. 18].

Sienema v. British Columbia Insurance Co. - see CIBC Mortgage Corp. et al. v. British Columbia Insurance Co.

Synex Pharmaceutical Inc. et al. v. Lee et al. (2009), 277 B.C.A.C. 252; 469 W.A.C. 252; 2009 BCCA 437, appld. [para. 18].

418486 B.C. Ltd. v. Newport City Club Ltd. et al. (2005), 216 B.C.A.C. 160; 356 W.A.C. 160; 2005 BCCA 441, dist. [para. 18].

Cao v. Natt et al. (2004), 204 B.C.A.C. 35; 333 W.A.C. 35; 2004 BCCA 446, dist. [para. 18].

National Hockey League et al. v. Pepsi-Cola Canada Ltd. (1993), 28 B.C.A.C. 316; 47 W.A.C. 316 (C.A.), dist. [para. 18].

Authors and Works Noticed:

Brinton, Holly A., Civil Appeal Handbook (Looseleaf), § 3-29 [para. 18].

Counsel:

W.G. MacLeod and S.E. Field, for the applicants, Margaret H. Mason, Bull, Housser & Tupper and Bull, Housser & Tupper LLP;

R.R.E. DeFilippi, for the respondents, Thomas E. Bronson, J. Tom Bronson, Lee B. Lewis, Virginia Shaffer, H. Davis Lewis, Jr. and Harold D. Lewis, Sr.;

J.G. Dives, Q.C., for A. Eugene Lewis;

B.R.H. Johnston, for Howard H. Hewitt.

This application was heard in Chambers at Vancouver, B.C., on June 2, 2011, by Saunders, J.A., of the British Columbia Court of Appeal, who delivered the following judgment on August 16, 2011.