Davies v McDonald’s Restaurants of Canada Limited, 2022 ABKB 779

Court of King’s Bench of Alberta Citation: Davies v McDonald’s Restaurants of Canada Limited, 2022 ABKB 779 Date: 20221124 Docket: 2003 07140 Registry: Edmonton Between: Robert Davies, Krystal Davies, Krystal Davies as litigation representative of Aidan Bender, Krystal Davies as litigation representative of Ethan Bender and Krystal Davies as litigation representative of Starlit Davies Plaintiffs - and - McDonald’s Restaurants of Canada Limited and Sun Life Assurance Company of Canada Defendants _______________________________________________________ Reasons for Decision of the Honourable Applications Judge L.A.

Smart _______________________________________________________ Background [ 1 ] Five members of the Davies family purchased food at a McDonald’s restaurant in April 2018 and took it home to consume. As they were finishing their burgers a son noticed what appeared to be human blood on his bun.

In submissions, but not in evidence, is a statement that it was confirmed to be human blood by McDonald’s, however McDonald’s hadn’t produced the lab test result confirming the same. [ 2 ] The Davies (the Plaintiffs) each issued a Statement of Claim in April, 2020 for $400,000 in damages against McDonald’s arising from possible exposure to blood borne pathogens and psychological consequences, and as against Sun Life as the owner of the lands upon which the McDonald’s was situate. McDonald’s retained this Counsel and filed its defences on March 10, 2021 denying liability.

Sun Life also retained the same Counsel albeit later and its defences were filed on March 18, 2021 also denying liability. [ 3 ] Sun Life advised the Plaintiffs’ Counsel on May 31, 2021 it intended to apply for

summary dismissal of the claim as against it. Notice was served on May 17, 2021 to be heard on July 15, 2021. Discussions between the Counsel regarding the rationale for the application occurred although no case authority directly on point was identified by Sun Life. On July 13, 2021, Sun Life provided some analogous authorities to Plaintiffs’ Counsel. [ 4 ] On July 15, 2021, the Plaintiffs consented to dismissal of their claim as against Sun Life and agreed to consolidation of the

actions. Request was made to adjourn the matter of costs to August 5, 2021. Master Schlosser heard the matter and awarded costs of $2,000 to McDonald’s on the consolidation. He also directed costs payable by the Plaintiffs to Sun Life to be assessed by a Review Officer. When the Plaintiffs appeared before the Review Officer and indicated to him that it would be seeking a Sanderson\Bullock Order, it was directed back to Master Schlosser who then directed it back to me. [ 5 ] Regardless, there are two issues to be decided. The first is a quantum of costs, and secondly, whether a Sanderson/Bullock order ought to be granted as against McDonald’s. Quantum of Costs [ 6 ] Calculated on Column 3 of

Schedule C of the Rules , the fees would be $6,510 inclusive of GST per matter. Disbursements are estimated at $166.60 per matter. It is notable that the Plaintiffs chose to commence five separate actions which were all virtually identical. Sun Life has suggested the amount of costs be halved recognizing the considerable duplication among the actions. The amount of costs sought for the five actions would be $3,333.50 totalling $16,666.50. [ 7 ] The Statements of Defence and the Affidavits of Records were virtually identical.

The Records consisted of three documents being two lease related agreements and a letter pertaining to the lease documents. These documents had already been set out in the Records identified by McDonald’s. No description of the documents disclosed by the Plaintiffs was provided but it can be safely concluded that anything provided going to liability would also be the same for each of the Plaintiffs.

Schedule C is based on the amount claimed and does not take into account complexity or the number of documents produced or inspected per se. [ 8 ] Regardless, had one action been commenced the fees under Column 5 would be about $10,350 inclusive of GST plus about $175 for disbursements. I prefer to use this latter amount as the starting point and make an adjustment upward to compensate for the additional effort and disbursements incurred for dealing with five actions. Using that starting point, I have arrived at an amount of $13,500 all inclusive ($2,700 as against each Plaintiff) for costs in favour of Sun Life.

Sanderson/Bullock Order [ 9 ] The next issue is whether the costs awarded to Sun Life ought to be covered from McDonald’s. The Plaintiffs rely on the decision of Justice Viet in Dhingra v Pham ( 2004 ABQB 973 ) where she confirms the three-part test: (

a) Was it reasonable for the Plaintiff to join the successful defendants, given the circumstances; (

b) Is there a good reason to deprive the successful defendants of costs; (

c) Were the unsuccessful defendants, vis-à-vis the successful defendants, wholly responsible for the action. [ 10 ] The Plaintiffs joined Sun Life on the basis of occupiers liability. Since the

Summary Dismissal went by consent the actual merits of the claim and the basis for the consent were not argued before me. Regardless, although in my view the claim might be described as thin, I would not conclude that the making of the claim was unreasonable. It is submitted that Sun Life should be deprived of costs ostensibly based on litigation misconduct primarily based on the timeliness of delivery of records and the providing of its authorities in support of their

Summary Judgment application. In my view that would be far too far a stretch for me to reach the conclusion that Sun Life should not have their costs. [ 11 ] The third part of the test presents a challenge in that there has been no determination of McDonald’s liability. The Plaintiffs, in argument, have presented facts that would, at least prima facie , suggest that establishing liability is quite possible. However, as pointed out by Counsel for the Defendants, there was no evidence of those facts presented. [ 12 ] Ultimately, it is in the discretion of the Court to decide to impose a Sanderson/Bullock Order.

McDonald’s did not in its defence purport to place the blame on Sun Life. Although it denied liability that denial alone is not a sufficient to warrant the granting of a Sanderson/Bullock Order. [ 13 ] I am unable to determine McDonald’s liability. Liability will have to be determined on further application or following a trial.

The decision whether to grant a Sanderson/Bullock Order could be left until then but having regard to the whole of the material before me (even if accepting the alleged facts), I am not satisfied that such an Order should be granted in any event and I decline to exercise my discretion in favour of the Plaintiffs. Conclusion [ 14 ] The application for a Sanderson/Bullock Order is dismissed. Sun Life shall have as against each Plaintiff their costs arising from the successful

Summary Dismissal of the action in the amount $2,700 plus $200 each for this application. Dated at the City of Edmonton, Alberta this 24 th day of November, 2022.

L.A. Smart A.J.C.K.B.A. Appearances: Brian Thompson Smith Thompson Law LLP for the Plaintiffs Jennifer Biernaskie McLennan Ross LLP for the Defendants