New Rules of Court Update: Discontinued Lawsuits and Third Party Costs


Reasons for judgement were released today by the BC Supreme Court, Chilliwack Registry, interpreting and applying Rule 9-8(5) for what I believe is the first time.  (It’s worth pointing out, however, that this rule reads almost identically to the former Rule 36(5)).  This rule deals with the entitlement of a Third Party to costs when a Plaintiff discontinues a lawsuit.
In today’s case (Patterson v. Williams) the Plaintiff sued two Defendants for personal injuries sustained when a dog knocked her over.  The Defendants denied fault and issued Third Party Proceedings against another dog walker seeking contribution and indemnity.
Ultimately the Plaintiff settled the claim, signed a release in favour of the Defendants and discontinued the lawsuit.  The Third Party then brought a motion asking that the Defendants pay the Third Party’s costs.  The Third Party relied on Rule 9-8(5) which reads as follows:
(5)  If a plaintiff discontinues the whole or any part of an action in which a person has been joined as a third party, the third party, if the discontinuance disposes of the claim against the third party, is entitled to costs and may apply to the court for a direction as to who should pay them.
Mr. Justice Sigurdson dismissed the motion finding that a discontinued lawsuit does not automatically dispose of Defendant claims against a Third Party.  The Court provided the following reasons:

[11]         The third party says that the notice of discontinuance disposes of the third party claim, as it was for contribution and indemnity only and did not include an independent claim. This was so, in the third party’s submission, because the specific wording of the third party notice made the third party claim conditional both on the plaintiff not being contributorily negligent and on the defendant being found liable. According to the third party, these conditions cannot now be satisfied because of the discontinuance.  Mr. Nossal also argues that there is no ongoing claim against the third party because the terms of the Release are on so-called “B.C. Ferry Agreement terms” (British Columbia Ferry Corp. et. al. v. T&N plc. et .al. (1993), 86 B.C.L.R. (2d) 353 (S.C.); (1995), 16 B.C.L.R. (3d) 115 (C.A.)) that prevent recovery from a third party.

[12]         I think that this application for costs must fail.  While the Release may limit the liability of the defendants and prevent successful third party proceedings against them, the notice of discontinuance itself does not prevent the defendants from continuing third party proceedings against Ms. Parker.

[13]         I do not think it can be said that the filing of the notice of discontinuance by the plaintiff disposes of the claim against the third party by the defendants.

[14]         The claim for contribution is a substantive right that continues to exist notwithstanding a settlement: see A.R. (Al) Smith Ltd. v. Turner, [1984] B.C.J. No. 3107, [1985] 2 W.W.R. 424 (B.C. Co. Ct.), and Canada v. Foundation Co. of Canada, [1980] 1 S.C.R. 695.

[15]         Moreover, I do not think that the precise terms of the third party notice can be determinative of this application, as the defendants are at liberty to apply to amend the terms of the third party notice.

[16]         Even if the terms of the Release do prevent the defendant from continuing third party proceedings against the third party, which I question, that is a matter of the interpretation of the Release, not something that flows from the filing by the plaintiff of the notice of discontinuance itself.

[17]         Accordingly, the application by the third party for costs is dismissed, with costs.

bc injury law, costs, Discontinuance, Mr. Justice Sigdurson, Patterson v. Williams, Rule 9, Rule 9-8(5), Third Party Costs

Comments (58)

  • I’ve been surfing online more than three hours lately, yet I never found any fascinating article like yours. It is pretty worth sufficient for me. In my view, if all site owners and bloggers made good content as you probably did, the net might be much more useful than ever before.

  • Nice post. I was checking continuously this blog and I am impressed! Extremely helpful info specifically the last part 🙂 I care for such info a lot. I was looking for this certain info for a very long time. Thank you and good luck.

  • I do believe all of the ideas you’ve introduced for your post. They are very convincing and will certainly work. Still, the posts are too brief for starters. Could you please extend them a bit from next time? Thank you for the post.

  • Wow! This could be one particular of the most helpful blogs We have ever arrive across on this subject. Actually Wonderful. I am also an expert in this topic therefore I can understand your hard work.

  • I was just searching for this information for some time. After 6 hours of continuous Googleing, finally I got it in your website. I wonder what’s the lack of Google strategy that do not rank this type of informative sites in top of the list. Normally the top sites are full of garbage.

  • I like the valuable information you provide on your articles. I’ll bookmark your blog and check once more here frequently. I’m fairly certain I will be informed lots of new stuff proper right here! Best of luck for the next!

  • Hey there! This post could not be written any better! Reading through this post reminds me of my previous room mate! He always kept chatting about this. I will forward this post to him. Fairly certain he will have a good read. Many thanks for sharing!

  • Very nice post and right to the point. I don’t know if this is actually the best place to ask but do you guys have any thoughts on where to hire some professional writers? Thank you 🙂

  • As I web site possessor I believe the content matter here is rattling magnificent , appreciate it for your efforts. You should keep it up forever! Good Luck.

  • I will right away take hold of your rss as I can not to find your e-mail subscription link or e-newsletter service. Do you have any? Kindly let me recognize so that I may just subscribe. Thanks.

  • I loved as much as you’ll receive carried out right here. The sketch is tasteful, your authored subject matter stylish. nonetheless, you command get bought an nervousness over that you wish be delivering the following. unwell unquestionably come further formerly again as exactly the same nearly a lot often inside case you shield this hike.

  • Excellent read, I just passed this onto a friend who was doing a little research on that. And he just bought me lunch since I found it for him smile Thus let me rephrase that: Thanks for lunch! “We know what happens to people who stay in the middle of the road. They get run over.” by Ambrose Gwinett Bierce.

  • Thank you for any other magnificent post. Where else may anyone get that type of info in such an ideal approach of writing? I’ve a presentation next week, and I am on the look for such info.

  • Howdy! This is my first visit to your blog! We are a collection of volunteers and starting a new project in a community in the same niche. Your blog provided us valuable information to work on. You have done a extraordinary job!

  • Thanks for your tips. One thing I’ve noticed is banks and financial institutions have in mind the spending practices of consumers while also understand that most of the people max away their real credit cards around the breaks. They correctly take advantage of this real fact and then start flooding your own inbox plus snail-mail box along with hundreds of 0 APR credit card offers right after the holiday season comes to an end. Knowing that if you are like 98 in the American general public, you’ll hop at the chance to consolidate consumer credit card debt and shift balances towards 0 apr interest rates credit cards.

  • We are a group of volunteers and opening a new scheme in our community. Your site provided us with valuable information to work on. You have done an impressive job and our whole community will be grateful to you.

  • A lot of thanks for all your valuable labor on this web page. My mother really loves making time for investigation and it is simple to grasp why. Many of us learn all relating to the powerful manner you present good ideas through the web site and as well as strongly encourage contribution from visitors on the area while our favorite princess is always starting to learn a whole lot. Take pleasure in the remaining portion of the year. You are performing a pretty cool job.

  • I like this site so much, saved to favorites. “To hold a pen is to be at war.” by Francois Marie Arouet Voltaire.

  • I have been surfing on-line more than 3 hours lately, yet I by no means discovered any attention-grabbing article like yours. It’s lovely worth enough for me. In my view, if all web owners and bloggers made just right content as you probably did, the web will be a lot more helpful than ever before.

  • I have been surfing online more than 3 hours today, yet I never found any interesting article like yours. It’s pretty worth enough for me. In my view, if all web owners and bloggers made good content as you did, the net will be a lot more useful than ever before.

  • Thank you, I have just been looking for info approximately this subject for a long time and yours is the best I have came upon till now. However, what about the conclusion? Are you certain about the supply?

  • Hmm is anyone else encountering problems with the pictures on this blog loading? I’m trying to figure out if its a problem on my end or if it’s the blog. Any feed-back would be greatly appreciated.

  • Great blog! Is your theme custom made or did you download it from somewhere? A theme like yours with a few simple adjustements would really make my blog shine. Please let me know where you got your theme. Cheers

  • I mastered more a new challenge on this losing weight issue. One issue is a good nutrition is highly vital when dieting. A massive reduction in junk food, sugary food, fried foods, sugary foods, pork, and bright flour products could possibly be necessary. Keeping wastes parasitic organisms, and toxins may prevent goals for losing fat. While selected drugs briefly solve the problem, the horrible side effects will not be worth it, and they never supply more than a non permanent solution. It’s a known fact that 95 of fad diets fail. Many thanks sharing your thinking on this blog.

  • I’m truly enjoying the design and layout of your blog. It’s a very easy on the eyes which makes it much more enjoyable for me to come here and visit more often. Did you hire out a developer to create your theme? Great work!

  • Hey! I just wanted to ask if you ever have any issues with hackers? My last blog (wordpress) was hacked and I ended up losing a few months of hard work due to no back up. Do you have any solutions to stop hackers?

  • It’s perfect time to make a few plans for the future and it’s time to be happy. I’ve read this post and if I could I desire to recommend you few fascinating issues or suggestions. Maybe you could write next articles relating to this article. I wish to learn more things about it!

  • Hey, you used to write excellent, but the last several posts have been kinda boring… I miss your tremendous writings. Past several posts are just a little out of track! come on!

  • Greetings! This is my 1st comment here so I just wanted to give a quick shout out and tell you I truly enjoy reading through your posts. Can you suggest any other blogs/websites/forums that deal with the same subjects? Thanks for your time!

  • Hi there! I’m at work browsing your blog from my new iphone 3gs! Just wanted to say I love reading your blog and look forward to all your posts! Keep up the fantastic work!

  • Good day very cool site!! Guy .. Beautiful .. Wonderful .. I’ll bookmark your blog and take the feeds additionally…I’m satisfied to seek out a lot of useful information right here in the submit, we’d like work out more techniques on this regard, thanks for sharing.

  • Good – I should definitely pronounce, impressed with your website. I had no trouble navigating through all the tabs as well as related information ended up being truly simple to do to access. I recently found what I hoped for before you know it at all. Quite unusual. Is likely to appreciate it for those who add forums or something, site theme . a tones way for your customer to communicate. Excellent task..

  • This design is wicked! You certainly know how to keep a reader entertained. Between your wit and your videos, I was almost moved to start my own blog (well, almost…HaHa!) Great job. I really loved what you had to say, and more than that, how you presented it. Too cool!

  • Heya are using WordPress for your site platform? I’m new to the blog world but I’m trying to get started and create my own. Do you require any html coding expertise to make your own blog? Any help would be greatly appreciated!

Comments are closed.

Contact

If you would like further information or require assistance, please get in touch.

ERIK
MAGRAKEN

Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

“Work hard, be kind and enjoy the ride!”
Erik’s Philosophy

    Disclaimer