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

• Jurisdiction: British Columbia
• Judge: Finch
• Neutral Citation: 2004 BCCA 361
• Citation: (2004), 200 B.C.A.C. 291 (CA),2004 BCCA 361,200 BCAC 291,(2004), 200 BCAC 291 (CA),200 B.C.A.C. 291
• Date: 18 June 2004
• Court: Court of Appeal (British Columbia)

Chaplin v. Sun Life (2004), 200 B.C.A.C. 291 (CA);

    327 W.A.C. 291

MLB headnote and full text

Temp. Cite: [2004] B.C.A.C. TBEd. JL.004

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

(CA31659; 2004 BCCA 361)

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

British Columbia Court of Appeal

Finch, C.J.B.C.

June 28, 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., denied the application for leave.

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 counsel for Chaplin 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 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 order against Pierce was based on unique circumstances - Further, the authority for the order of increased costs (s. 7 to Appen­dix B of the Supreme Court Rules), had been amended so that no order for increased costs could be made after July 1, 2002 - The trial judge's deci­sion therefore had little precedential value and an appeal would be of no great impor­tance to the profession - There was also little merit to the proposed appeal where there was an adequate basis for the trial judge's con­clusions and no error in his exercise of discre­tion.

Cases Noticed:

Albion Securities Co. et al. v. Milne et al., [2000] B.C.A.C. Uned. 175; 2000 BCCA 274, refd to. [para. 10].

Neufeld v. Foster, [2000] B.C.A.C. Uned. 147; 5 M.V.R.(4th) 276; 2000 BCCA 485, refd to. [para. 10].

Oliveira v. McIntyre, [1999] B.C.A.C. Uned. 99 (C.A.), refd to. [para. 11].

Abraham v. Jutson, [1963] 2 All E.R. 402 (Eng. C.A.), refd to. [para. 14].

Young v. Young et al. (1990), 50 B.C.L.R.(2d) 1; 75 D.L.R.(4th) 46 (C.A.), affd. [1993] 4 S.C.R. 3; 160 N.R. 1; 34 B.C.A.C. 161; 56 W.A.C. 161; 49 R.F.L.(3d) 117; [1993] 8 W.W.R. 513; 108 D.L.R.(4th) 193; 84 B.C.L.R.(2d) 1; 18 C.R.R.(2d) 41; [1993] R.D.F. 703; 1993 CarswellBC 264, refd to. [para. 14].

Kent v. Waldock (2000), 139 B.C.A.C. 189; 227 W.A.C. 189; 76 B.C.L.R.(3d) 217; 2000 BCCA 357 (C.A.), refd to. [para. 14].

Laurin v. Ford Credit Canada Ltd. and Fehr (1993), 20 B.C.A.C. 73; 35 W.A.C. 73; 86 B.C.L.R.(2d) 282 (C.A.), refd to. [para. 17].

Milk Marketing Board (B.C.) v. Bari Cheese Ltd. et al. (1997), 79 B.C.A.C. 34; 129 W.A.C. 34; 26 B.C.L.R.(3d) 279 (C.A.), refd to. [para. 17].

College of Opticians (B.C.) v. Moss et al., [2002] B.C.A.C. Uned. 178; 2002 BCCA 602, refd to. [para. 17].

Counsel:

D. Roberts, Q.C., and A. Kanji, for the appellant;

V. Orchard, for the respondent, Sun Life Assurance Co. of Canada;

G. Turiff, Q.C., for the respondent, Chaplin.

This application was heard in Chambers on June 18, 2004, at Vancouver, British Colum­bia, before Finch, C.J.B.C., of the British Colum­bia Court of Appeal, who delivered the following decision on June 28, 2004.