Brosseau Estate v Dubarry Estate, 2023 ABKB 378

Court of King’s Bench of Alberta Citation: Brosseau Estate v Dubarry Estate, 2023 ABKB 378 Date: 20230622 Docket: 1103 14955 Registry: Edmonton Between: David Edward Brosseau, as litigation representative for the Estate of Stephen Brosseau Plaintiffs - and - Amel Dubarry, as personal representative for the Estate of James Dubarry, deceased, Elaine Geraldine Matson, as personal representative for the Estate of Charles Matson, deceased, Temple Insurance Company, National Liability & Fire Insurance Company, Lombard General Insurance Company of Canada, Mitsui Sumitomo Insurance Company Limited, and Cirrus Aircraft Corporation Defendants - and - Elaine Geraldine Matson, and Elaine Geraldine Matson as personal representative of the Estate of Charles Matson, deceased Plaintiffs by Counterclaim - and - David Edward Brosseau, as litigation representative for the Estate of Stephen Brosseau, Amel Dubarry as the personal representative of the Estate of James Dubarry, Cirrus Aircraft Corporation, AON Reed Stenhouse Inc and Lloyd’s Underwriters Defendants by Counterclaim - and - Amel Dubarry, Jordan Clark Dubarry, an infant, by his litigation representative, Amel Dubarry, and Amel Dubarry, as personal representative of the Estate of James Dubarry Plaintiffs by Counterclaim - and -

David Edward Brosseau, as litigation representative for the Estate of Stephen Brosseau, and Elaine Geraldine Matson, as personal representative for the Estate of Charles Matson Defendants by Counterclaim And Between: Amel Dubarry and the Estate of James Clark Dubarry Plaintiffs - and - Global Aerospace Underwriting Managers (Canada) Limited and Jones Brown Inc.

Defendants - and - Elaine Geraldine Matson and Elaine Geraldine Matson as personal representative of the Estate of Charles Matson, deceased Third Party Defendants/Plaintiffs by Counterclaim - and - Amel Dubarry as the personal representative of the Estate of James Dubarry, David Edward Brosseau, as litigation representative for the Estate of Stephen Brosseau, Cirrus Aircraft Corporation, Aon Reed Stenhouse Inc. and Lloyd’s Underwriters Defendants by Counterclaim _______________________________________________________ Reasons for Decision of Applications Judge W.S.

Schlosser _______________________________________________________ [ 1 ] This is a costs application arising from a successful

summary dismissal application (reported at 2022 ABQB 60 ).

Position of the Parties [2] The Applicant seeks 50% of its actual costs, which total $251,631.72, based on the Court of Appeal’s decision in McAllisterv Calgary (City), 2021 ABCA 25. The Plaintiffs, object to costs being awarded on this scale.

Alternately, they say that costs should bepayable at the conclusion of the lawsuit, or be borne by other parties pursuant to a Bullock order (Bullock v London General OmnibusCo, [1907] 1 KB 264 (Eng CA)), requiring an unsuccessful defendant to indemnify the plaintiffs for the costs of its successful co-defendant, or a Sanderson order (Sanderson v Blyth Theatre Company, [1903] 2 KB 533), requiring one of the unsuccessful defendantsto pay the successful defendants’ costs directly. [3] I have considered the circumstances of this case according to the protocol set by the rules and the McAllister decision, and,for the reasons that follow, I am satisfied that costs should be awarded on the basis of

Schedule C. The request that one of the otherdefendants respond directly (Sanderson), or by way of an indemnity (Bullock) is denied. Authorities cited By the Parties [4] McAllister v Calgary (City), 2021 ABCA 25, Sanderson v Blyth Theatre Company (CA 1903), Alberta Rules of Court, AltaReg 124/2010, r 3.43, Tort-Feasors Act RSA 2000, c.

T-5, s.3(1), Brosseau Estate v Dubarry Estate, 2022 ABQB 60, Ed Miller Sales& Rentals Ltd v Caterpillar Tractor Co, 1994 CarswellAlta 282 (QB), Strategic Acquisition Corp v Multus Investment, 2017 ABQB297, Scarboro Golf & Country Club Ltd v Scarborough, (ON SC), 1986 CarswellOnt 1048 at para 25, 32 DLR (4th)732 (HCJ), Scarborough (Scarboro) Golf & Country Club Ltd v Scarborough (City) affirmed, 1988 CarswellOnt 619 (CA) at para 42,Voest-Alpine Canada v Pan Ocean Shipping, 1991 CarswellBC 236 (SC) at para 30-35, Voest-Alpine Canada Corp v Pan OceanShipping Co., affirmed (BC CA), 1993 CarswellBC 140 (CA), Rioga v Mockle, 2005 ABQB 425, Spartek SystemsInc v Brown, 2015 ABQB 190, MacLean v Lumley, 2009 ABQB 33, 394 Lakeshore Oakville Holdings Inc v Misek, 2010 ONSC 7238,Hill v Hill, 2013 ABCA 313, at para 41, Alberta Rules of Court, Alta Reg 124/2010 r 10.33(2), Stewart Estate v TAQA North Ltd, 2016ABCA 144 at para 30, By the Court [5] Wenden v Trikha, (1992) (AB KB), 124 AR 1 (QB) per Murray J, Civil Justice Reform, Where Next?

SirRupert Jackson in the Civil Procedure Rules at 20 edited by Andrew Higgins, Oxford University Press (2020), Hryniak v Mauldin,2014 SCC 7. Excursus I. The Lawsuit [6] This lawsuit arises out of a fatal plane crash. Messers. Brosseau and Dubarry were in the process of purchasing of Mr.Matson’s aircraft when the accident happened. They were on their test flight. We do not know who was flying the aircraft at the time,though Mr.

Matson was pilot-in-command. [7] The Contract of Purchase and Sale required a successful test flight before the sale was complete and property in the aircraftpassed to the purchasers. [8] The Brosseau Estate sued (inter alia) Temple Insurance Company, National Liability & Fire Insurance Company, LombardGeneral Insurance Company of Canada, Mitsui Sumitomo Insurance Company Limited (“Global”), claiming insurance proceeds of $251,500.00. [9] The Dubarry Estate sued (inter alia) Global and the insurance broker, Jones Brown, but for more money: Loss of aircraft $255,000.00 General damages (breach of contract) $100,000.00 Aggravated damages for mental distress $100,000.00 Punitive damages $250,000.00 Special damages $150,000.00 For a total of $855,00.00 [10] The Brosseau claim puts costs into Column 3 for the purposes of

Schedule C. The Dubarry claim is in Column 4. II. The Global Policy and Global’s Position in the Lawsuit

[ 11 ] Four things would have to have happened for the Global Policy to be engaged. First, and at a minimum, property would have to have passed from Mr. Matson to Messrs. Brosseau and Dubarry. Until the sale was complete, Mr. Brosseau and Mr. Dubarry had no insurable interest in the airplane. The parties were in the process of satisfying the final purchase condition when the accident happened. Second, Mr. Matson would have to have been a listed and approved pilot for there to be any coverage under the Global Policy.

As noted in the underlying decision, this policy is not like an auto policy, where coverage is afforded someone driving with the owner’s consent. The pilot has to be specifically named and approved in order for the policy to be engaged. Mr. Matson was not listed in the Global Policy. [ 12 ] Third (and fourth): if property had passed and either Mr. Brosseau or Mr. Dubarry were flying the aircraft, they would have to have been qualified and certified on this aircraft (or at least this aircraft type). Mr. Brosseau was a student pilot. Mr. Dubarry had not been certified on this aircraft.

Neither of them met the qualifications for coverage under the Global Policy. [ 13 ] I am unable to envision any facts, or combination of facts, in the circumstances of this case that would engage coverage under the Global Policy as it was written. III. The Pleadings [ 14 ] The Brosseau lawsuit alleges that Mr. Dubarry was in control of the aircraft at the time, or, alternately, that it was Mr. Matson. The Dubarry lawsuit alleges that Messrs. Dubarry and Brosseau were the new owners of the airplane and that Mr. Matson was pilot-in- command. [ 15 ] The Global defence to the Brosseau action is that Mr.

Brosseau was not licensed, that Mr. Dubarry was not qualified on that aircraft and that Mr. Matson, though he was pilot-in-command, was not an approved pilot under the Global policy. [ 16 ] The Global defence to the Dubarry action is to like effect; admitting that Mr. Matson was pilot-in-command and that neither Mr. Brosseau nor Mr. Dubarry were qualified on the aircraft; and, further, that Mr. Matson was not an approved pilot under the Global Policy. [ 17 ] The circumstances of this accident speak for themselves. Some cases are facts cases. This is not a facts case, at least from Global’s perspective.

Even though we may never know the precise details of the accident, there is no set of facts, or combination of facts, in the circumstances of this case that would engage coverage under the Global policy. It is this a priori aspect of Global’s position that is the most striking aspect of this application. [ 18 ] I acknowledge that this is a 2012 lawsuit and notwithstanding the 2014 ‘culture shift’ in the form of Hryniak v Mauldin , this case was amenable to

summary disposition, from Global’ s perspective, right from the start; even to the extent that it might have been accomplished on the basis of formal admissions in the pleadings. [ 19 ] I do not mean to impugn defence counsel's conduct of this file. There is much to be said for playing a cautious hand. But whether an opposing party should have to pay for the strategy is another question. [ 20 ] The Plaintiffs, for their part, might have sought a declaration of coverage by Originating Application (or vice versa) and Global’s involvement in this lawsuit might have been determined years ago.

To my mind, this is the most significant factor in this costs application. McAllister [ 21 ] The McAllister decision seems to be on every successful counsel’s lips. However, it would be a misreading of the case to say that it supplants

Schedule C with a 40-50% indemnification model. With respect, this case is simply a reminder that there are a wide range of choices on the costs menu, depending on the Court’s appetite and the circumstances of any particular case; all of which are contemplated by rules 10.33 (and 10.2) with respect to scale, and r 10.31, with respect to options. It is not a shift from prix fixe to carte blanche , or nearly so. [ 22 ] Costs remain wholly within the discretion of the Court. Apart from the comprehensive list of principles set out in the McAllister decision, the case has no direct application to this one.

As noted, and unlike McAllister , this case is not a piece of hard-fought protracted litigation involving ‘arguably novel’ liability. Though it has been protracted, this case is the opposite. [ 23 ] I note that even if costs are awarded on a scale representing a percentage of fees incurred, it is not the costs of every step that are compensable; only those that reasonably meet the objects of the foundational rules and the course set by r 1.2.

In this case, for example, there are many steps that I do not see to have been strictly necessary to Global’s position. [ 24 ] An option, but to my mind, the less desirable one, would be to comb through the time records (or to pass this task to the assessment officer) and assess costs on a McAllister scale (40-50% of fees billed) for those limited steps that satisfy the objects of r 1.2 as they apply to this case. However, to do so would be to discount completely counsel’s role and strategy in defending this case. [ 25 ] I am satisfied that

Schedule C represents the appropriate level of indemnification that this successful Defendant should receive from the Plaintiffs. Policy [ 26 ] There is also a policy consideration. If I can borrow from Sir Rupert Jackson’s essay on Civil Justice Reform, in the context of the revised English rules, now over 20 years old:

...what matters is not only the amount of costs, but also predictability. People need to know what litigation will cost in order to decide whether they can afford to bring a claim, or to defend a claim. And if they don’t know, they may be deterred at the outset, and never pursue their claim, or never pursue their defence. ... [ 27 ] I say this because predictability would also support the idea, given the wide range of cost options open to the Court, that it would be helpful for a party seeking non-contractual costs on an enhanced scale to plead this, so that the risks of proceeding are more clearly defined.

In this case, both Statements of Defence seek only “costs” without mentioning any elevated scale. Sanderson & Bullock , Rule 10.31(3) [ 28 ] These options are helpfully discussed in Wenden v Trikha (per Murray J). The Plaintiff suggests that because Lloyd’s ( Mr. Matson’s insurer) denied liability this should form a basis for having them to respond to Global’s costs. In my view, there is no basis for making such an award. Disposition [ 29 ] Global is awarded

Schedule C costs under Column 3 for the Brosseau claim and Column 4 for the Dubarry claim for all steps permitted by the

schedule leading to the successful

summary dismissal application. Global’s counsel, perhaps anticipating these reasons, or possibly as a point of comparison, has prepared two Bills of Costs based on

Schedule C ($24,971.35 and $34,156.23, respectively), which I have reviewed and accept as presented, with the exception that the costs of an expert report are only partly accounted for in the draft bills of costs. [ 30 ] The expert report is a disbursement outside the ambit of r 10.31 (10.31(2)(d)) and is to be considered separately. This report was not essential to Global’s position in the lawsuit. However, I found this report to have been very helpful to put the circumstances of the accident into perspective.

I am going to allow this expenditure in full and permit Global to adjust the draft bills of costs accordingly. I will leave it open to the Plaintiffs to claim it pro rata from the unsuccessful Defendants if they are successful at the end of the day. [ 31 ] The costs are payable forthwith. Heard on the 12 th day of May, 2023 in Case Management Dated at the City of Edmonton, Alberta this 22 nd day of June, 2023. W.S. Schlosser A.J.C.K.B.A.

Appearances: Teri L Bougie Ahlstrom Wright for David Edward Brosseau, as litigation representative for the Estate of Stephen Brosseau Senia Tarrabain Tarrabain Law for Amel Dubarry, Jordan Clark Dubarry, an infant, by his litigation representative, Amel Dubarry, and Amel Dubarry, as personal representative for the Estate of James Dubarry, Deceased Justin L Denis & Michael G Doerksen Field LLP for the Lloyd’s Underwriters

Joachim Chau CBM Lawyers for Jones Brown Inc Frederick R Fenwick, K.C. McLennan Ross LLP for the Elaine Geraldine Matson, as personal representative for the Estate of Charles Matson, deceased Robert Fenn Rohmer & Fenn for Global Aerospace Underwriting Managers (Canada) Limited, Temple Insurance Company, National Liability & Fire Insurance Company, Lombard General Insurance Company of Canada, and Mitsui Sumitomo Insurance Company