| Citation: | Pressler v. Lethbridge et al | |||
| 2001 BCSC 694 | Docket: |
93-4277 |
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Registry: Victoria |
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| IN THE SUPREME COURT OF BRITISH COLUMBIA | ||||
| BETWEEN: | ||||
CLAUS PRESSLER AND EILEEN PRESSLER |
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PLAINTIFFS |
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| AND: | ||||
DAVID LETHBRIDGE AND WESTCOM TV GROUP LTD. |
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DEFENDANTS |
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REASONS FOR JUDGMENT |
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| Counsel for the Plaintiffs | Douglas H. Christie |
| Counsel for the Defendants | Daniel W. Burnett |
| Date and Place of Hearing/Trial: | Written submissions April 6 & 17, 2001 |
Victoria, BC |
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[1] Decision in this case was rendered May 20, 1998 following a five week trial by judge alone in which the defendants were found liable for defamatory statements made against the plaintiffs during a news story. The defendant Lethbridge was found liable for damages in the amounts of $1,500 to Mrs. Pressler and $10,000 to Mr. Pressler. The defendant Westcom was found liable for damages in the amounts of $10,000 to Mrs. Pressler and $50,000 to Mr. Pressler.
[2] The defendants appealed and the plaintiffs cross- appealed. The Court of Appeal dismissed the defendants' appeal but allowed the cross-appeal by ordering that the defendant Lethbridge pay the plaintiffs $15,000 in punitive damages.
[3] Counsel have advised me that the issue of costs remains unresolved. In my reasons for judgment, I had indicated that ordinary costs on Scale 3 were appropriate.
[4] In the opening comments of her judgment on appeal, Southin J.A. noted that this award of costs presumably meant that costs were awarded jointly and severally against the defendants. For reasons that follow, I hold that costs are joint and several as against the defendants.
[5] In written submissions on this issue, counsel for the plaintiffs argues that costs are joint and several. In so doing, counsel for the plaintiffs relies on M. Orkin's text, The Law of Costs, 2d ed. (Aurora: Canada Law Book Inc., 2000) where the author cites as a general principle the decision in Hill v. Church of Scientology (1994), 114 D.L.R. (4th) 1 (Ont. C.A.), stating at para. 209.1:
Where a plaintiff recovers judgment against two defendants it is correct to apportion costs between them in the same ratio as the apportionment of liability.
At para 209.1.1, the author, again referring to Hill, writes:
The trial costs of defendants who unsuccessfully appealed were apportioned, but they remained jointly and severally liable to the plaintiff, with each having a claim over against the other for any excess paid.
[6] In Hill, the Ontario Court of Appeal noted that:
Counsel for Morris Manning submits that his client should not share equally the costs of the trial with Scientology. We see merit in this submission. The major portion of the trial was devoted to the plea of justification pursued by Scientology. As well, the majority of the damages was awarded against Scientology alone. We are of the view that, as between Morris Manning and Scientology, the trial costs should be apportioned with Morris Manning paying only 30% of the assessed costs and Scientology the balance. However, these parties should remain jointly and severally liable for all costs to the respondent, with each having a claim-over against the other for any excess paid.
[7] Counsel for the plaintiffs also asserts that the cost of pre-trial motions should be awarded jointly and severally against the defendants, with the exception of the motion brought by the defendant Lethbridge for the attendance at the plaintiffs' residence for the purpose of a view, which cost should be borne solely by him.
[8] Counsel for the defendant Lethbridge made no written submissions on this issue.
[9] Counsel for the defendant Westcom asserts that costs should be awarded severally against the defendants. In support of that contention counsel cited Alberta Opportunity Co. v. Schinnour et al. (1991), 84 Alta L.R. 198; [1991] A.J. No. 950 (C.A.) where the court held that costs should be apportioned pro rata.
[10] I find that the principles enunciated in Hill, supra, are applicable to the case at bar. The defendants were found jointly liable for the defamatory conduct alleged by the plaintiffs. While there was no apportionment of liability, the amount of damages awarded to the plaintiffs from each defendant differs. Taking into consideration the punitive damages allowed by the court of appeal in the amount of $15,000, the total damages flowing to the plaintiffs are $26,500 from Dr. Lethbridge and $60,000 from Westcom.
[11] I have reviewed the cases submitted by counsel and can see no reason for departing from the normal practice of ordering joint and several liability against the defendants for costs. I would add, however, costs between the defendants apportioned in a ratio of 2/3 to Westcom and 1/3 to Dr. Lethbridge. In addition, the cost of the motion for the view at the plaintiffs' residence is to be paid solely by the defendant Dr. Lethbridge.
"D.D. Owen-Flood, J."
The Honourable Mr. Justice D.D. Owen-Flood