Bullock and Sanderson Orders: Costs When a Plaintiff Wins Against One Defendant and Loses Against Another


Written By: Dale Orlando and Brandon Pedersen, Student-at-Law

Bullock and Sanderson Orders: Costs When a Plaintiff Wins Against One Defendant and Loses Against Another | McLeish Orlando Personal Injury Lawyers

Cost Consequences at Trial – Who Gets What?

In litigation involving one plaintiff and one defendant, the successful party at trial is typically able to recover a portion of their legal fees and disbursements from the unsuccessful party.  This recovery is referred to as “costs”.  The successful party is typically awarded costs on a partial indemnity basis, recovering approximately 50% to 65% of reasonable legal fees plus disbursements. In situations where a plaintiff beats their own offer to settle or where one of the parties complicated or unnecessarily lengthened the trial, costs may be awarded on a substantial indemnity basis.  In these circumstances, the successful party can expect to recover approximately 75% to 85% of their legal fees.

Bullock and Sanderson Orders

The situation is somewhat more complicated in an action where a plaintiff has proceeded to trial against two or more defendants and has succeeded against some but has been unsuccessful in against one or more defendants.  The general rule requires the unsuccessful defendants to pay costs to the successful plaintiff, but who is responsible for the costs of the successful defendant(s).  If the general rule is applied, the plaintiff has been unsuccessful in their action against one or more defendants and would be required to pay the costs of these defendants on a partial indemnity basis.  In these circumstances, counsel for the plaintiff will ask the Court to use their discretion and require the unsuccessful defendant to pay the costs of the successful defendants by granting a Bullock Order or a Sanderson Order.

The rationale for these orders was articulated by the Court of Appeal in Rooney (Litigation Guardian of) v. Graham, 2001 CanLII 24064:

The [rationale] behind both orders is the same. Where the allocation of responsibility is uncertain, usually because of interwoven facts, it is often reasonable to proceed through trial against more than one defendant. In these cases, a Bullock or Sanderson order provides a plaintiff with an appropriate form of relief.[1]

A Bullock Order requires the plaintiff to pay the costs of the successful defendant but orders the unsuccessful defendant to reimburse the plaintiff for the costs they were required to pay to the successful defendant. With a Bullock Order, the unsuccessful defendant indirectly pays costs to the successful defendant.  A Court will typically issue a Bullock Order in circumstances where there is some uncertainty surrounding the ability of the successful defendant to collect their award of costs from the unsuccessful defendant. On the other hand, a Sanderson Order requires the unsuccessful defendant to pay the successful defendant directly and is typically granted in circumstances where there is no issue surrounding the ability of unsuccessful to pay the cost award.

Both Orders achieve the same result, but the methods are different. The scenario involving one plaintiff and two defendants, one of them successful and the other unsuccessful, is illustrated below:

Bullock Order Sanderson Order

Unsuccessful Defendant → Plaintiff → Successful Defendant


Unsuccessful Defendant → Successful Defendant

The Court of Appeal in Moore (Litigation Guardian of) v. Wienecke, 2008 ONCA 162 laid out the test for awarding a Sanderson or Bullock Order.

First, the court must ask a threshold question: Was it reasonable for the plaintiff to join the defendants in one action (the “Threshold”)? If the answer to this question is yes, then the court must exercise its discretion to determine whether a Sanderson or Bullock Order would be just and fair in the circumstances.[2]

In using its discretion on whether to grant a Bullock or Sanderson Order, the court should take into account four considerations:

  1. Whether the defendants tried to shift responsibility between each other, in contrast to concentrating on meeting the plaintiff’s case;[3]
  2. Whether the unsuccessful defendant caused the successful defendant to be added to the action;[4]
  3. Whether the two causes of action were independent of each other;[5] and
  4. Whether there is an issue with respect to the plaintiff’s ability to pay costs.[6]

In multi-party actions, plaintiffs and defendants should keep in mind the circumstances where it would be fair and just for the court to grant a Bullock or Sanderson Order. The Court of Appeal in Moore (Litigation Guardian of) stated that these Orders are exceptions to the general rule that a plaintiff must pay the successful defendant’s costs.[7]

[1] Rooney (Litigation Guardian of) v. Graham, 2001 CanLII 24064 at para 6.

[2] Moore (Litigation Guardian of) v. Wienecke, 2008 ONCA 162 at para 41.

[3] Ibid at para 46.

[4] Ibid at para 48.

[5] Ibid at para 49.

[6] Ibid at para 50.

[7] Ibid at para 37.

Dale Orlando

Dale Orlando

Principal Partner

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