Patrick et al. v. Telus Communications Inc., (2008) 256 B.C.A.C. 277 (CA)

• Judge: Low, Smith and Kirkpatrick, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: March 23, 2007
• Jurisdiction: British Columbia
• Citations: (2008), 256 B.C.A.C. 277 (CA);2008 BCCA 246

Patrick v. Telus Com. Inc. (2008), 256 B.C.A.C. 277 (CA);

    431 W.A.C. 277

MLB headnote and full text

Temp. Cite: [2008] B.C.A.C. TBEd. JN.037

Brad McArthur, John Martin, Douglas Patrick, Karen Lidster, James Kerr, Garry Rolls, John Clarke, Dianne Armstrong, and David Bjorge (appellants/respondents on cross-appeal/plaintiffs) v. Telus Communications Inc. (respondent/appellant on cross-appeal/defendant)

(CA034202; 2008 BCCA 246)

Indexed As: Patrick et al. v. Telus Communications Inc.

British Columbia Court of Appeal

Low, Smith and Kirkpatrick, JJ.A.

June 13, 2008.

Summary:

The plaintiffs, a group of former members of the B.C. Tel Management and Exempt Employees Pension Plan, commenced an action against Telus, the plan administrator, seeking a declaration that they were entitled to certain pension benefits on a proper construction of the plan and, in the alternative, damages for breach of fiduciary duty.

The British Columbia Supreme Court, in a decision reported at [2006] B.C.T.C. Uned. D46, dismissed the action, but awarded the unsuccessful plaintiffs their special costs payable out of the pension plan. The plaintiffs appealed and Telus cross-appealed regarding the award of costs.

The British Columbia Court of Appeal, in a decision reported at [2007] B.C.A.C. Uned. 52, dismissed the appeal and the cross-appeal. Subsequently, the court came to doubt the correctness of its reasons for dismissing the cross-appeal and invited further submissions from the parties.

The British Columbia Court of Appeal allowed the cross-appeal, setting aside the trial judge's order awarding the plaintiffs their special costs of the action payable out of the pension plan. Telus was entitled to its costs of the trial, the appeal and the cross-appeal.

Editor's Note: There are numerous reported decisions related to this action.

Executors and Administrators - Topic 5548

Actions by and against representatives - Costs - Where payable out of estate - [See second Master and Servant - Topic 1953 ].

Master and Servant - Topic 1953

Remuneration - Pension or retirement benefits - Costs or expenses payable from plan - The plaintiffs, a group of former members of the B.C. Tel Management and Exempt Employees Pension Plan, commenced an action against Telus, the plan administrator, seeking a declaration that they were entitled to certain pension benefits on a proper construction of the plan and, in the alternative, damages for breach of fiduciary duty - The trial judge dismissed their action after a 14-day trial, but awarded the unsuccessful plaintiffs their special costs payable out of the pension plan - On the plaintiffs' appeal, Telus cross-appealed the costs award - The British Columbia Court of Appeal allowed the cross-appeal, setting aside the trial judge's order - The case was a claim made by beneficiaries to establish their rights - It was not brought to determine a question of construction of the plan that was necessary for the proper administration of the estate and it was not brought for the benefit of all beneficiaries - Moreover, it was brought in an action and resolved in a 14-day trial, rather than in a proceeding brought by originating application and resolved in chambers - Accordingly, the case did not fall with the second Buckton, Re (1907 Ch. Div.) category and the trial judge erred in awarding the plaintiffs their special costs payable out of the fund - Telus was entitled to recover its costs of the trial in accordance with the usual rule that costs follow the event - See paragraphs 1 to 41.

Master and Servant - Topic 1953

Remuneration - Pension or retirement benefits - Costs or expenses payable from plan - A trial judge awarded the unsuccessful plaintiffs in a pension plan action their special costs payable out of the pension plan - On the pension plan administrator's appeal of the costs award, the British Columbia Court of Appeal discussed the application of the principles from Buckton, Re (1907 Ch. Div.) - Buckton established that (i) all parties, successful and unsuccessful, whose participation was necessary or helpful should have their costs payable from the estate of a chambers application brought by the trustee (category 1) or by a beneficiary in circumstances that would justify an application by the trustee (category 2), for a necessary determination of a question of construction of the trust instrument or of proper administration, and that (ii) when a beneficiary sought to have a question of his or her rights determined on a chambers application and the question should have been determined in an action commenced by writ (category 3), the usual rule that the unsuccessful party paid the successful party's costs applied - Here, the trial judge erred in basing his award on the second Buckton, Re category - See paragraphs 7 to 24.

Master and Servant - Topic 1953

Remuneration - Pension or retirement benefits - Costs or expenses payable from plan - The plaintiffs, a group of former members of the B.C. Tel Management and Exempt Employees Pension Plan, commenced an action against Telus, the plan administrator, seeking a declaration that they were entitled to certain pension benefits on a proper construction of the plan and, in the alternative, damages for breach of fiduciary duty - The trial judge dismissed their action after a 14-day trial, but awarded the unsuccessful plaintiffs their special costs payable out of the pension plan, basing the award on a finding that the case fell within the second Buckton, Re (1907 Ch. Div.) category - The plaintiffs appealed and Telus cross-appealed the costs award - The appeal was dismissed and the cross-appeal was allowed - The trial judge had erred in awarding the plaintiffs their special costs payable out of the fund - At issue was whether the plaintiffs were entitled to costs of the appeal payable from the pension fund - The British Columbia Court of Appeal held that the categories laid down in Buckton, Re did not apply on an appeal - Rather, the general rule, that costs followed the event, applied - Even if Buckton, Re were applicable, the plaintiffs' request would have been rejected on the same basis that Telus's cross-appeal regarding the award of trial costs was allowed - Telus was entitled to its costs of the appeal - See paragraphs 42 to 48.

Practice - Topic 7451.1

Costs - Solicitor and client costs - Entitlement to - Unsuccessful party - [See first and second Master and Servant - Topic 1953 ].

Practice - Topic 7466.2

Costs - Solicitor and client costs - Entitlement to - Pension plan actions - [See first and second Master and Servant - Topic 1953 ].

Practice - Topic 7845

Costs - Costs out of a fund (incl. public fund) - When appropriate - [See all Master and Servant - Topic 1953 ].

Practice - Topic 8326

Costs - Appeals - Costs of appeal - General principles - [See third Master and Servant - Topic 1953 ].

Cases Noticed:

Buckton, Re, [1907] 2 Ch. 406 (Ch. Div.), refd to. [para. 1].

Patrick et al. v. Telus Communications Inc., [2007] B.C.A.C. Uned. 52; 281 D.L.R.(4th) 732; 60 C.C.P.B. 1; 2007 BCCA 200, refd to. [para. 4].

Lotzkar, Re (1965), 50 D.L.R.(2d) 357; 51 W.W.R.(N.S.) 99 (B.C.C.A.), folld. [para. 17].

Lotzkar v. Southin and Montreal Trust Co. et al. (1964), 40 D.L.R.(2d) 843; 43 W.W.R.(N.S.) 676 (B.C.S.C.), refd to. [para. 18].

Lotzkar v. Southin and Montreal Trust Co. et al. (1965), 50 D.L.R.(2d) 338 (B.C.C.A.), revd. [1966] S.C.R. 69, refd to. [para. 18].

Hillam v. Walker (1827), 1 Hagg. Ecc. 71; 162 E.R. 510, refd to. [para. 20].

Twist v. Tye, [1902] P. 92; 71 L.J.P. 47, refd to. [para. 20].

Cherry v. Mott (1836), 1 My. & Cr. 123; 5 L.J. Ch. 65; 40 E.R. 323, refd to. [para. 20].

Halston, In re; Ewen v. Halston, [1912] 1 Ch. 435, refd to. [para. 20].

Collett Estate, Re (2005), 212 B.C.A.C. 304; 350 W.A.C. 304; 48 B.C.L.R.(4th) 102; 2005 BCCA 291, dist. [para. 26].

Turner v. Andrews et al. (1999), 24 B.C.T.C. 166; 30 E.T.R.(2d) 126; 23 C.C.P.B. 84 (S.C.), affd. (2001), 147 B.C.A.C. 305; 241 W.A.C. 305; 85 B.C.L.R.(3d) 53; 2001 BCCA 76, consd. [para. 26].

Patrick et al. v. Telus Communications Inc., [2005] B.C.T.C. 1248; 49 C.C.P.B. 280; 2005 BCSC 1248, refd to. [para. 31].

Patrick et al. v. Telus Communications Inc., [2005] B.C.T.C. 1556; 49 C.C.P.B. 290; 2005 BCSC 1556, affd. (2005), 219 B.C.A.C. 179; 361 W.A.C. 179; 49 B.C.L.R.(4th) 74; 2005 BCCA 492, refd to. [para. 31].

Canadian Association of Smelter and Allied Workers, Local 1 et al. v. Alcan Smelters and Chemicals Ltd. et al. (2001), 152 B.C.A.C. 117; 250 W.A.C. 117; 89 B.C.L.R.(3d) 29; 2001 BCCA 303, affing. [1998] B.C.T.C. Uned. H43; 19 C.C.P.B. 223 (S.C.), refd to. [para. 34].

Huang et al. v. Drinkwater et al., [2005] 9 W.W.R. 51; 372 A.R. 336; 41 Alta. L.R.(4th) 107; 44 C.C.P.B. 100; 13 E.T.R.(3d) 233; 2005 ABQB 40, dist. [para. 36].

Sutherland et al. v. Hudson's Bay Co. et al., [2006] O.T.C. Uned. 572; 53 C.C.P.B. 154; 24 E.T.R.(3d) 253 (Sup. Ct.), refd to. [para. 40].

Nolan et al. v. Superintendent of Financial Services (Ont.) et al. (2007), 229 O.A.C. 82; 2007 CarswellOnt 5511; 282 D.L.R.(4th) 625; 62 C.C.P.B. 34; 2007 ONCA 605, leave to appeal granted (2008), 385 N.R. 380 (S.C.C.), refd to. [para. 18].

Kerry (Canada) Inc. v. Superintendent of Financial Services (Ont.) - see Nolan et al. v. Superintendent of Financial Services (Ont.) et al.

Kordyban v. Kordyban (2003), 186 B.C.A.C. 77; 306 W.A.C. 77; 19 B.C.L.R.(4th) 19; 2003 BCCA 455, refd to. [para. 45].

Counsel:

R.H. Hamilton, Q.C., and N.R. Howell, for the appellants;

R.A. Skolrood and M. Vesely, for the respondent.

This appeal was heard at Vancouver, British Columbia, on March 23, 2007, by Low, Smith and Kirkpatrick, JJ.A., of the British Columbia Court of Appeal. The court delivered the following reasons for judgment on June 13, 2008.