Practice Watch, by Felicia S. Folk, Practice Advisor

The Calderbank letter (and suing jointly)

Two interesting decisions dealing with costs and Calderbank letters have been handed down recently. In Brown v. Lowe, 2002 BCCA 7, Madam Justice Southin for the Court of Appeal said that "Calderbank v. Calderbank should not be considered law in this province today." Madam Justice Ryan agreed with the reasons of Southin, J.A. on costs, while Chief Justice Finch dissented. The majority said that, when the Court of Appeal decided Calderbank in 1975, it was attempting to fill a gap in the Rules on costs, and that the 1993 revision to Rule 37 is a complete code and there is no room for any judicial discretion save that given by it.

In Pacific Hunter Resources v. Moss Management Inc., 2002 BCSC 396, a decision that followed immediately on Brown v. Lowe, Madam Justice Martinson discussed whether the decision of the majority in Brown v. Lowe on the use of the Calderbank letters as the basis of an order for costs, was binding on her. She decided it was not binding.

Martinson, J. noted that the decision in Brown v. Lowe was obiter, and made the distinction that Brown v. Lowe dealt with an application for double costs while in the Pacific Hunter Resources v. Moss Management case before her, the "defendant asks, strictly speaking, for 'increased costs,' though in an amount tantamount to double costs. The obiter decision is contrary to previous decisions of the Court of Appeal." Martinson, J. exercised her discretion to award costs on the basis of a Calderbank letter.

I recommend to all litigators that you read these two decisions carefully, not only for the discussion about the Calderbank letter, but also for Southin, J.A.'s comments about the meaning of being sued "jointly." She notes that tortfeasors can only be said to be sued "jointly" if they have joined together in committing the tort and the liability of one is the liability of the other. In other words, liability may be joint, but unless defendants are joint tortfeasors, they are not sued "jointly."

Negligence claims against municipalities

In its February Alert!, the Lawyers Insurance Fund reported on the British Columbia Court of Appeal decision in Gringmuth v. The Corporation of the District of North Vancouver, a decision that resolved that negligence claims brought against municipalities for a breach of a duty of care in tort are governed by the two-year limitation in the Limitation Act. Claims brought against municipalities for an unlawful act contrary to statute are governed by the six-month limitation in section 285 of the Local Government Act.

However, please remember that the two-month notice provision in section 286(1) of the Local Government Act continues to apply to any claims brought against a municipality, including claims in negligence. Lawyers intending to claim damages against a municipality must comply with the two-month notice requirement, regardless of the nature of the claim they intend to advance.