Chaplin v. Sun Life Assurance Co. of Canada et al., 2004 BCCA 655

• Judge: Rowles, Hall and Smith, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: December 10, 2004
• Jurisdiction: British Columbia
• Citations: 2004 BCCA 655;(2004), 206 B.C.A.C. 251 (CA)

Chaplin v. Sun Life (2004), 206 B.C.A.C. 251 (CA);

  338 W.A.C. 251

MLB headnote and full text

Temp. Cite: [2005] B.C.A.C. TBEd. JA.008

Lawrence E. Pierce (appellant) v. Dawn Chaplin (respondent/plaintiff) and Sun Life Assurance Company of Canada, doing business as Sun Life of Canada (respondent/defendant)

(CA031659; 2004 BCCA 655)

Indexed As: Chaplin v. Sun Life Assurance Co. of Canada et al.

British Columbia Court of Appeal

Rowles, Hall and Smith, JJ.A.

December 10, 2004.

Summary:

Pierce acted as counsel for Chaplin in her action against Sun Life Assurance Company of Canada for long term disability benefits.

The British Columbia Supreme Court, in a decision reported at [2001] B.C.T.C. 310, dismissed Chaplin's action. Sun Life sought special or increased costs payable by Chaplin or Pierce or both of them. Chaplin applied for an order requiring Pierce to either pay personally, or indemnify her for, any costs she was ordered to pay to Sun Life.

The British Columbia Supreme Court, in a decision reported at [2004] B.C.T.C. 116, held that Sun Life was entitled to increased costs, fixed at 75% of special costs. The court also ruled that Pierce was personally and directly liable under rule 57(37)(c) for that portion of the increased costs awarded to Sun Life in excess of the scale 3 costs payable by Chaplin. The court considered that Pierce had essentially "hijacked" Chaplin's action and "was on a frolic of his own" with respect to an "enlarged" punitive damages claim and that he had pursued that aspect of the claim without advising Chaplin as to the costs risks or obtaining her authorization. Pierce applied for leave to appeal from the costs order.

The British Columbia Court of Appeal, per Finch, C.J.B.C., in a decision reported at 200 B.C.A.C. 291; 327 W.A.C. 291, denied the application for leave. Pierce applied under s. 9(6) of the Court of Appeal Act for a review of the dismissal of his application for leave.

The British Columbia Court of Appeal dismissed the application.

Barristers and Solicitors - Topic 1571

Relationship with client - Liability for costs - General - [See Practice - Topic 8889 ].

Practice - Topic 8889

Appeals - Leave to appeal - From order respecting costs - Pierce acted as Chaplin's counsel in her unsuccessful action against Sun Life - The trial judge awarded Sun Life increased costs, fixed at 75% of special costs, and ruled that Pierce was personally and directly liable under rule 57(37)(c) for that portion of the increased costs awarded to Sun Life in excess of the scale 3 costs payable by Chaplin - The trial judge considered that Pierce had essentially "hijacked" Chaplin's action and "was on a frolic of his own" with respect to an "enlarged" punitive damages claim, which he had pursued without advising Chaplin as to the costs risks or obtaining her authorization - Pierce sought leave to appeal from the costs order - He argued that the order had significant repercussions for the legal profession and the proposed appeal was therefore of general importance - The British Columbia Court of Appeal, per Finch, C.J.B.C., denied the application for leave - The proposed appeal, although of potential significance to the parties, was not of great importance to the legal profession - There was also little merit to the proposed appeal where there was no error in the trial judge's exercise of discretion - Pierce applied under s. 9(6) of the Court of Appeal Act for a review of the dismissal of his application for leave - The British Columbia Court of Appeal dismissed the application.

Cases Noticed:

Albion Securities Co. et al. v. Milne et al., [2000] B.C.A.C. Uned. 175; 2000 BCCA 274, refd to. [para. 8].

Young v. Young et al. (1990), 50 B.C.L.R.(2d) 1 (C.A.), affd. [1993] 4 S.C.R. 3; 160 N.R. 1; 34 B.C.A.C. 161; 56 W.A.C. 161; 84 B.C.L.R.(2d) 1, refd to. [para. 10].

Cockle v. Whiting (1829), 39 E.R. 17, refd to. [para. 14].

Haldorson et al. v. Coquitlam (City) (2000), 149 B.C.A.C. 197; 244 W.A.C. 197; 3 C.P.C.(5th) 225 (C.A.), refd to. [para. 15].

Counsel:

W.B. McAllister, Q.C., for the appellant;

G. Turriff, Q.C., for the respondent, D. Chaplin;

V.R.K. Orchard, for the respondent, Sun Life Assurance Co.

This application was heard on December 10, 2004, at Vancouver, British Columbia, before Rowles, Hall and Smith, JJ.A., of the British Columbia Court of Appeal. The following judgment of the Court of Appeal was delivered orally by Rowles, J.A., on the same date.