COURT CASES on BULLOCK ORDERS

 

If a Plaintiff sues two parties in an ICBC claim, or other civil claims, however only succeeds against one of the Defendants, then the Court, pursuant to Rule 14-1(18) of the British Columbia Supreme Court Civil Rules, can grant a Bullock order, which has the effect of the unsuccessful defendant having to pay the costs of the successful defendant.

 

In Bakker v Nahanee, the Plaintiff was injured in a motor vehicle accident when he was struck by a vehicle that had been stolen. The Plaintiff consequently brought an ICBC claim for damages for pain and suffering. The Plaintiff also named the registered owner of the vehicle as a Defendant, claiming he was vicariously liable. As the ICBC claim progressed, it became quite evident that the claim against the owner could not be supported. Consequently, the claim against the registered owner of the vehicle was dismissed, and the Court granted an order requiring the Defendant driver to pay the costs of the registered owner up until the point of the Examinations for Discovery.

 

[41]         An order may be granted that an unsuccessful defendant pay the costs of the successful defendant directly (a Sanderson order). Alternatively, the order may provide that the plaintiff, while having to pay the successful defendant’s costs, is allowed to claim the amount paid as a disbursement in the assessment of costs against an unsuccessful defendant (a Bullock order).

 

[44]         In Grassi v. WIC Radio Ltd., 2001 BCCA 376, Madam Justice Southin provided some clarification as to when such orders may be appropriate:

 

[33]      I do not go so far, as some of the cases have suggested, as to say that such an order should be made “whenever it was reasonable for the plaintiff to have sued the successful defendant”, if, by “reasonable”, one is looking at the matter from the perspective of counsel for the plaintiff. One must bear in mind that the present rule as to joinder of causes of action is so broad that the causes of action alleged against the various defendants may be completely different, even though they arise out of the same transaction. … There 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….

 

[34]      But orders under Rule 57(18) 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.

 

[53]         In these circumstances, as a general proposition, I am of the view that Mr. Bakker was reasonable in naming Ms. Ang and GMAC as defendants to this action.

 

[77]         In my view, and exercising my discretion, the granting of a Bullock order is appropriate in the circumstances but the order should be limited, similar to that which was ordered in Cominco at 212. Accordingly, Mr. Bakker is entitled to a Bullock order but only in respect of the costs incurred up to and including the examination for discovery of Ms. Ang on September 20, 2007. By that time, Mr. Bakker’s counsel had elicited sufficient evidence from Ms. Ang to be satisfied that she and GMAC had no vicarious liability and that there were no mechanical issues relating to the vehicle. Beyond September 20, 2007, I am unable to say that it would be just or fair to fix Mr. Nahanee with the costs of Ms. Ang and GMAC.

 

In Brooks-Martin v. Martin, the Plaintiff was injured in a motorcycle accident, and brought an ICBC claim for damages for pain and suffering. The Court discussed the general principles of law with respect to Bullock orders.

 

[7]             In order to justify the exercise of discretion in his or her favour, a plaintiff must establish two elements, namely:

 

a)    that it was reasonable for the plaintiff to have sued the successful defendant together with the unsuccessful defendant; and

 

b)    that there was some conduct on the part of the unsuccessful defendant (such as asserting that the successful defendant was the culprit in the case or committing some act or acts which caused the plaintiff to bring the successful defendant into the litigation) which makes it just to require the unsuccessful defendant to pay the costs of the successful defendant.

 

See Grassi v. WIC Radio Ltd. 2001 BCCA 376 at paras 32-34; Davidson v. Tahtsa Timber Ltd. 2010 BCCA 528 at paras 53-54.

 

[8]             The first element is a threshold requirement for the exercise of the court’s discretion. This question is looked at mainly from the perspective of the plaintiff. But if the plaintiff has alleged independent causes of action against the two defendants and if these two causes of action are not connected, the plaintiff will not be able to meet the threshold test. See Robertson v. North Island College Technical and Vocational Institute (1980), 26 B.C.L.R. 225 (C.A.) at paras 23-24; Davidson v. Tahtsa Timber Ltd. at para. 52.