Nickel v. Weyerhaeuser Company Limited

2018 BCSC 570 Nickel v. Weyerhaeuser Company Limited

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Nickel v. Weyerhaeuser Company Limited, 2018 BCSC 570 Date: 20180409 Docket: S159897 Registry: Vancouver Between: Gordon Nickel, Barbara Sirett and David Biggs, suing on their own behalf and in a representative capacity on behalf of all salaried, non-unionized Canadian retired employees of Weyerhaeuser Company Limited and its predecessors (including any eligible spouses of those retired employees, and the estates of any of those retired employees whoa re deceased), who: (a) suffered loss as a consequence of the defendant's unilateral reduction of its contribution to the cost of retirement health benefits effective June 1, 2010; and (b) were not part of a previous class action against and Court-approved settlement with the defendant Plaintiffs And Weyerhaeuser Company Limited Defendant Before: The Honourable Mr. Justice Affleck Supplementary Reasons for Judgment Counsel for the Plaintiffs: S. Rogers Counsel for the Defendants: J.R. Shewfelt C. Rajotte Place and Date of Trial/Hearing: Vancouver, B.C. November 6-8, 2017 Place and Date of Judgment: Vancouver, B.C. April 9, 2018 [1] In reasons indexed at 2018 BCSC 109 I addressed two applications in succession. The first was for the summary trial and dismissal of the claim of the plaintiff Mr. Nickel. The second was for the certification of this action as a class proceeding. I was

informed by the parties that they had agreed that it would be efficient to have the hearing of the two applications together with the dismissal application going first. [2] I held that Mr. Nickel's claim should be tried summarily and dismissed. Secondly I held that the proceeding should be certified. [3] The parties made brief submissions on the issue of costs in the event Mr. Nickel's claim was dismissed. In my reasons I neglected to decide that issue. [4] The defendant submits that notwithstanding s. 37 of the Class Proceedings Act, R.S.B.C. 1996, c. 50, precludes costs awards in such proceedings it is entitled to an award of costs against Mr. Nickel. The defendant relies on Consumers' Association of Canada v. Coca-Cola Bottling Company et al., 2007 BCCA 356, which involved an appeal from an order dismissing the plaintiffs' intended class proceeding and a costs award in favour of the defendants. At para. 12 Low J.A., for a unanimous court, wrote: [12] The Class Proceedings Act provides protection to plaintiffs with respect to costs orders, but not prior to the certification application. The statute gives no direction to the Court as to the awarding of costs if the proceedings are dismissed prior to the application for certification. It follows that when the action is dismissed prior to the application for certification the ordinary rule applies, namely, that costs follow the

event. Of course, this is subject to the proper exercise of judicial discretion to bring about a different result. In the present case, the trial judge exercised her discretion by applying the ordinary rule with variation as to the scale of costs recoverable by some of the groups of defendants. [5] In my opinion Mr. Nickel is in no better position in regard to costs than were the plaintiffs in the Consumers' Association case. Weyerhaeuser applied to dismiss Mr. Nickel's claim before the action was certified as a class proceeding. For convenience the dismissal application was heard over the same three days as was the certification application but that cannot change the principle applied in Consumers' Association. [6] Rule 14-1(9) mandates that a successful party is entitled to an award of costs "unless the court otherwise orders". There is no principled basis on which to depart from the usual rule. [7] The defendant is awarded costs on Scale B against Mr. Nickel for the application to dismiss his claim. "The Honourable Mr. Justice Affleck"