Danicek v. Poole, (2012) 316 B.C.A.C. 201 (CA)

• Judge: Bennett, J.A.
• Court: Court of Appeal (British Columbia)
• Case Date: February 09, 2012
• Jurisdiction: British Columbia
• Citations: (2012), 316 B.C.A.C. 201 (CA);2012 BCCA 65

Danicek v. Poole (2012), 316 B.C.A.C. 201 (CA);

    537 W.A.C. 201

MLB headnote and full text

Temp. Cite: [2012] B.C.A.C. TBEd. FE.021

Michelle Marie Danicek (applicant/plaintiff) v. Jeremy Martin Poole (respondent/defendant) and Lombard General Insurance Company of Canada (respondent/third party)

(CA039472)

Michelle Marie Danicek (applicant/plaintiff) v. Susan Shou Yee Li and Pao Fu Li (respondents/defendants)

(CA039478; 2012 BCCA 65)

Indexed As: Danicek v. Poole

British Columbia Court of Appeal

Bennett, J.A.

February 9, 2012.

Summary:

Danicek brought actions for damages for injuries suffered after a fall in a nightclub on April 5, 2001 (the Dance Accident) and a motor vehicle accident on June 29, 2002 (the MVA). The first phase of litigation dealt with liability and damages flowing from the Dance Accident and the MVA.

The British Columbia Supreme Court, in a decision reported at [2010] B.C.T.C. Uned. 1111, found that the MVA had not caused or contributed to the injuries suffered in the Dance Accident. Rather, Danicek had suffered relatively minor soft tissue injuries in the MVA which resolved within six months. The court awarded damages of $5.9 million against the Dance Accident defendants and $10,595 against the MVA defendants. The second phase of litigation dealt with the third action, which addressed whether Lombard General Insurance's policy covered the Dance Accident defendants' liability and the extent to which Lombard was required to indemnify Co-operators for funds it advanced to the Dance Accident defendants under a "loan and insurance recovery agreement".

The British Columbia Supreme Court, in a decision reported at [2011] B.C.T.C. Uned. 65, concluded that, although Lombard's policy did not cover the Dance Accident defendants' liability for the Dance Accident, Lombard was required to reimburse Co-operators for half of the expenses Co-operators incurred in defending the Dance Accident defendants during the first phase of the litigation up to January 28, 2009, the date the parties reached a settlement.

The British Columbia Supreme Court, in a decision reported at [2011] B.C.T.C. Uned. 444, awarded costs on Scale C ($200,000) to the MVA defendants. Danicek sought leave to appeal the MVA costs order.

The British Columbia Supreme Court, in a decision reported at [2011] B.C.T.C. Uned. 1375, found Lombard liable for costs to Danicek with respect to Phase 1 of the litigation. The fact that Lombard's policy did not extend coverage to the Dance Accident defendants under these circumstances was not decided until Phase 2 of the litigation. The court declined to make a Sanderson order or a Bullock order as requested by Danicek. This order was referred to as the ABHL costs order. Danicek sought leave to appeal the ABHL costs order. Lombard sought leave to cross-appeal the ABHL costs order.

The British Columbia Court of Appeal, per Bennett, J.A., held that Danicek did not require leave to appeal the ABHL costs judgment because it was not "an order respecting costs only" as justices of the court had interpreted that phrase. If she did require leave, the court would grant it as questions of principle were involved and the test in Neufeld v. Foster et al. (BCCA 2000) was satisfied. The court granted leave to appeal the MVA costs judgment. Danicek had met the Neufield test and a question of principle was involved.

Practice - Topic 8298

Costs - Appeals - Appeals from order granting or denying costs - Requirement of leave to appeal - Danicek brought actions for damages for injuries suffered after a fall in a nightclub on April 5, 2001 (the Dance Accident) and a motor vehicle accident on June 29, 2002 (the MVA) - The first phase of litigation dealt with liability and damages flowing from the Dance Accident and the MVA - The trial judge found that the MVA had not caused or contributed to the injuries suffered in the Dance Accident - Rather, Danicek had suffered relatively minor soft tissue injuries in the MVA which resolved within six months - The court awarded damages of $5.9 million against the Dance Accident defendants and $10,595 against the MVA defendants - The MVA defendants had made an offer to settle for $500,000 which Danicek refused - The trial judge declined to award double costs but did award them costs on Scale C ($200,000) - Danicek sought leave to appeal the MVA costs order - The British Columbia Court of Appeal, per Bennett, J.A., granted leave to appeal the MVA costs judgment - Danicek had met the the test in Neufeld v. Foster et al. (BCCA 2000) and a question of principle was involved - See paragraphs 8 to 12 and 30.

Practice - Topic 8298

Costs - Appeals - Appeals from order granting or denying costs - Requirement of leave to appeal - Danicek brought actions for damages for injuries suffered after a fall in a nightclub on April 5, 2001 (the Dance Accident) and a motor vehicle accident on June 29, 2002 (the MVA) - The second phase of litigation dealt with the third action, which addressed whether Lombard General Insurance's policy covered the Dance Accident defendants' liability and the extent to which Lombard was required to indemnify Co-operators for funds it advanced to the Dance Accident defendants under a "loan and insurance recovery agreement" - The trial judge concluded that, although Lombard's policy did not cover the Dance Accident defendants' liability for the Dance Accident, Lombard was required to reimburse Co-operators for half of the expenses Co-operators incurred in defending the Dance Accident defendants during the first phase of the litigation up to January 28, 2009, the date the parties reached a settlement - The trial judge found Lombard liable for costs to Danicek with respect to Phase 1 of the litigation - The fact that Lombard's policy did not extend coverage to the Dance Accident defendants under these circumstances was not decided until Phase 2 of the litigation - The court declined to make a Sanderson order or a Bullock order as requested by Danicek - This order was referred to as the ABHL costs order - Danicek sought leave to appeal the ABHL costs order - Lombard sought leave to cross-appeal the ABHL costs order - The British Columbia Court of Appeal, per Bennett, J.A., held that Danicek did not require leave to appeal the ABHL costs judgment because it was not "an order respecting costs only" as justices of the court had interpreted that phrase - If she did require leave, the court would grant it as questions of principle were involved and the test in Neufeld v. Foster et al. (BCCA 2000) was satisfied - See paragraphs 13 to 16 and 29.

Cases Noticed:

Moore v. Wienecke et al. (2008), 234 O.A.C. 39; 2008 ONCA 162, refd to. [para. 14].

Heppner v. Schmand (1997), 90 B.C.A.C. 73; 147 W.A.C. 73; 29 B.C.L.R.(3d) 128 (C.A.), refd to. [para. 18].

Cao v. Natt et al. (2004), 204 B.C.A.C. 35; 333 W.A.C. 35; 2004 BCCA 446, refd to. [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, refd to. [para. 19].

Seminoff v. Seminoff - see J.L.W.S. v. J.L.S.

J.L.W.S. v. J.L.S., [2007] B.C.A.C. Uned. 96; 2007 BCCA 403, refd to. [para. 20].

Bronson et al. v. Hewitt et al. (2011), 309 B.C.A.C. 163; 523 W.A.C. 163; 2011 BCCA 349, refd to. [para. 21].

Neufeld v. Foster et al., [2000] B.C.A.C. Uned. 147; 2000 BCCA 485, refd to. [para. 24].

Oliveira v. McIntyre, [1998] B.C.A.C. Uned. 99 (C.A.), refd to. [para. 25].

New Caledonia (College) v. Kraft Construction Co. et al. (2011), 305 B.C.A.C. 48; 515 W.A.C. 48; 2011 BCCA 172, refd to. [para. 25].

Brooks-Martin v. Martin et al. (2011), 309 B.C.A.C. 254; 523 W.A.C. 254; 2011 BCCA 357, refd to. [para. 25].

Canadian Petcetera Limited Partnership, Re (2009), 273 B.C.A.C. 26; 461 W.A.C. 26; 2009 BCCA 255, refd to. [para. 26].

Lougheed Estate v. Wilson et al. (2009), 275 B.C.A.C. 40; 465 W.A.C. 40; 2009 BCCA 399, refd to. [para. 26].

Gulamani v. Chandra, [2009] B.C.A.C. Uned. 36; 2009 BCCA 206, refd to. [para. 26].

West Bay SonShip Yachts v. Esau, [2007] B.C.A.C. Uned. 105; 2007 BCCA 419, refd to. [para. 27].

Columbia National Investments Ltd. v. Abbotsford (City), [2007] B.C.A.C. Uned. 117; 2007 BCCA 368, refd to. [para. 27].

Teck Cominco Metals Ltd. v. British Columbia (2009), 264 B.C.A.C. 164; 445 W.A.C. 164; 2009 BCCA 3, refd to. [para. 28].

Counsel:

D.G. Cowper, Q.C., for the applicant, Ms. Danicek;

N.P. Kent, for the respondent, Mr. Poole;

R.B. Lindsay, Q.C., and C. Stewart, for the respondent, Lombard General Insurance Company of Canada;

V. Critchley, for the respondent, Ms. Li.

These applications were heard in Chambers, at Vancouver, B.C., on February 9, 2012, by Bennett, J.A., of the British Columbia Court of Appeal, who delivered the following judgment on the same date.