In an ICBC claim, and other civil claims as well, a Plaintiff sometimes sues more than one Defendant. If the Plaintiff succeeds against only one of the Defendants, then the Court has the discretion to order the unsuccessful Defendant to pay the costs of the successful Defendant. This type of order is what is commonly known as a Sanderson Order.

 

In Brooks v. Tod Estate, a collision ensued when a vehicle attempted to overtake another vehicle in the passing lane. A car coming in the opposite direction swerved to avoid the passing vehicle, and then struck another vehicle traveling in the same direction as the passing vehicle. The driver of the car that swerved passed away. The Plaintiff was a passenger in the vehicle involved in a collision with the car that swerved. Liability was established against the passing vehicle. The Plaintiff had sued the estate of the driver of the swerving car, as well as the driver of the passing vehicle. Costs were awarded to the Plaintiff as against the driver of the passing vehicle. An issue as to whether the unsuccessful Defendant (driver of the passing vehicle) had to pay costs to the successful Defendant (the swerving vehicle). In granting a Sanderson Order to this effect, the Court commented that:

 

[11]        Under Rule 14–18(1), an order may be granted that an unsuccessful defendant pay the costs of the successful defendant directly. This is known as a Sanderson order, after Sanderson v. Blyth Theatre Co. [1903] 2 K.B. 533 (CA). Alternatively, the court may order that the plaintiff pay the successful defendant’s costs, and claim that amount as a disbursement in the assessment of costs against the unsuccessful defendant. This is known as a Bullock order, after Bullock v. London General Omnibus Co. [1907] 1 K.B. 264 (CA).

 

[12]        Determining whether or not a Sanderson/Bullock order is appropriate requires a two-stage analysis. At the first stage, the court must determine whether it was reasonable for the plaintiff to sue the successful defendant together with the unsuccessful defendant. This is the threshold question: Davidson v. Tahtsa Timber Ltd., 2010 BCCA 528 (CanLII), 2010 BCCA 528 at para. 52. If the threshold question is answered affirmatively, the court moves to the second stage of the analysis to exercise its discretion to determine whether a Bullock/Sanderson order is just and fair in the circumstances. The court is to determine whether the circumstances of the case warrant having the unsuccessful defendant pay the costs of the successful defendant. 

 

[17]        For the reasons that follow I conclude that a Sanderson order is appropriate in this case. 

 

[18]        In my view, the threshold question is easily met. It was reasonable for the plaintiff to name both the Tod Estate and Ms. Goodrick as defendants in this litigation. The action arises as a result of the injuries the plaintiff sustained in the accident. The vehicle the plaintiff was travelling in collided with Mr. Tod’s vehicle. The plaintiff’s pleadings claim that Mr. Tod’s vehicle lost control while he was overtaking Ms. Goodrick’s vehicle. The plaintiff maintained that she sustained injuries as a result of either, or both of the defendants’ negligence. Therefore, the claims against the Tod Estate and Ms. Goodrick are inextricably linked to one another.

 

[19]        Further, the plaintiff was aware that prior to commencing this lawsuit, Mr. Brook, her husband, settled his own claim for damages arising out of the accident. The funds Mr. Brook received were paid on behalf of the Tod Estate by Mr. Tod’s primary insurer.  Additionally, on October 10, 2012, the Tod Estate made an offer to settle the action by accepting 51% responsibility for the accident. These factors, coupled with the circumstances of the accident make it reasonable for the plaintiff to have joined and maintained the action against the Tod Estate.

 

[20]        Having met the threshold question, the next determination is whether Ms. Goodrick ought to pay the costs the Tod Estate is entitled to obtain from the plaintiff. Throughout the liability proceedings Ms. Goodrick asserted that Mr. Tod was the “culprit in the case”. Ms. Goodrick argued, throughout, that the accident occurred solely as a result of Mr. Tod’s negligence. Ms. Goodrick maintained that she never left her lane of travel, which was rejected at trial. Ms. Goodrick’s uncompromising position made settlement of the proceedings impossible and prolonged the liability trial. Therefore, it is fair and just to have Ms. Goodrick bear the costs of the Tod Estate directly.

In Burdett v. Mohamed, the Plaintiff was injured as a passenger in a motor vehicle accident, and brought an ICBC claim for damages for pain and suffering against the driver of the vehicle in which she was an occupant, and against the driver of another vehicle as well. The latter was also named as a Defendant, as the driver of the vehicle that the Plaintiff was in only had $1 million dollars in coverage, and there were other injured parties as well that had brought ICBC claims. The case against the second Defendant was dismissed at trial. The second Defendant was awarded double costs against the Plaintiff. The lawyer for the Plaintiff did not want the amount of the double costs order to impact any amount awarded to the Plaintiff, so he applied for a Sanderson Order, which the Court ordered, and in so doing made the original Defendant, who was unsuccessful, pay the costs of the second Defendant, whom the claim was dismissed against.

 

[64]         In Towson v. Bergman, 2009 BCSC 978, Gray J. reviewed at length the law regarding Bullock orders and Sanderson orders at page 14:  

…

[79]      A Sanderson order is one in which the unsuccessful defendant is ordered to pay costs directly to the successful defendant.

 

[80]      In Times Square Holdings Ltd. v. Shimizu, 2001 BCCA 667, 95 B.C.L.R. (3d) 234, the Court of Appeal set out the general rule for exercises of discretion granting Bullock or Sanderson orders: 

 

[9]        The leading authority in this area of costs is Robertson v. Wing (1980), 26 B.C.L.R. 225 (C.A.).  There, Mr. Justice Lambert, in the judgment most often quoted in later cases, decided that the only general rule applying to Sanderson and Bullock orders is that for either of them to be considered, a threshold test must first be met: it must have been reasonable for the plaintiff to have joined the successful defendant in the action.  If the plaintiff can meet this threshold, it is left to the judge to exercise his or her discretion in deciding what distribution of costs would be just.  This discretion may be exercised without being trammelled by a set of legal principles or burdened by precedent: see pp. 227-8.

 

[81]      In Grassi v. WIC Radio Ltd., 2001 BCCA 376, 89 B.C.L.R. (3d) 198, after reviewing the historical development of both Sanderson and Bullock orders, Southin J.A. stated that “reasonableness” is not measured from the perspective of counsel for the plaintiff; rather, “[t]here must be something which the unsuccessful defendant did, such as asserting the other defendant was the culprit in the case, to warrant his being made to reimburse the plaintiff for the successful defendant’s costs”: at para. 33.  She noted further at para. 34 that such orders:

 

…are not restricted to cases where the unsuccessful defendant in the course of the litigation has blamed the successful defendant but may extend to acts of the unsuccessful defendant which caused the successful defendant to be brought into the litigation. 

 

[82]      In deciding whether to make a Sanderson as opposed to a Bullock order, the question for the court essentially concerns apportionment of risk.  As between the plaintiff and the successful defendant, who should bear the risk that the unsuccessful defendant will be unable to pay costs? 

 

[66]          This raises the issue, was it reasonable for the plaintiff to have sued and continued her action against the defendant Samuel?  I accept that at the outset, given the evidence of the eyewitness to the effect the Dubois vehicle (driven by Mohammed) had fishtailed back and forth across the road before its collision with the oncoming Samuel vehicle, it was reasonable for the plaintiff to have joined Samuel as a defendant to the action.  However, after the receipt of the many engineering reports which overwhelmingly laid the blame on Mohammed and absolved Samuel of any negligence, was it reasonable for the plaintiff to have continued her action against Samuel? 

 

[70]         In my view, faced with ICBC’s plea that Samuel caused or contributed to this accident, the plaintiff had no choice but to continue her claim against Samuel. 

 

[71]         In all of these circumstances, I exercise my discretion under Rule 57(18) (current Rule 14-1 (18) )and find that a Sanderson order is appropriate in the case at bar, thus requiring the defendants Mohammed and Dubois to pay the costs which the plaintiff would otherwise pay to the successful defendant Samuel.