Ontario court reverses Sanderson cost order

Ontario’s Court of Appeal has reversed a “Sanderson’ cost order” in a blended auto injury case, restoring the general legal principle that unsuccessful defendants should pay for the plaintiff’s costs.
In Moore v. Wienecke, the plaintiff, Benjamin Moore, sued Peter Wienecke and George Hayik for injuries he sustained in two separate collisions.
Moore in 1998 suffered a broken back in a motor vehicle collision with a tractor-trailer driven by Wienecke.
In 2002, Moore was involved in a motor vehicle collision with a car driven by Hayik, aggravating a neck injury Moore sustained in the collision with Wienecke.
The Wienecke and Hayik cases were blended because the court had to determine whether the injury caused in the Wienecke incident was related to the injury caused in the Hayik collision. (Moore suffered a broken back in a separate 1986 motorcycle accident.)
The trial judge found Moore 100% responsible in the 1998 collision. Hayik was found 100% responsible in the 2002 collision.
The trial judge made a “Sanderson cost order,” according to which the unsuccessful defendant, Hayik, would pay Moore’s costs in Moore’s unsuccessful action against Wienecke in the 1998 incident.
Normally the unsuccessful defendant (Hayik) would pay the plaintiff’s costs, and the plaintiff (Moore) would pay the successful defendant’s (Wienecke’s) costs.
The defendants at the blended trial, Hayik and Moore, had not tried to shift responsibility onto each other, one of the considerations for making a Sanderson order, the appeal court noted.
Plus, “it is clear from these [settlement] numbers that Moore was very successful in the blended trial even though he lost the first action completely,” the court wrote. ” In these circumstances, I see no unfairness in following the usual rule of requiring him to pay the costs of the action he lost.”