Competition between Airbus and Boeing

Competition between Airbus and Boeing






Competition between Airbus and Boeing has been characterised as a duopoly in the large jet airliner market since the 1990s.[1] This resulted from a series of mergers within the global aerospace industry, with Airbus beginning as a European consortium while the American Boeingabsorbed its former arch-rival, McDonnell Douglas in a 1997 merger. Other manufacturers, such as Lockheed Martin and Convair in the United States and British Aerospace, Dornier and Fokker in Europe, were no longer in a position to compete effectively and withdrew from this market.

In the last 10 years (2004–2013), Airbus has received 8,933 orders while delivering 4,824, and Boeing has received 8,428 orders while delivering 4,458. Competition is intense; each company regularly accuses the other of receiving unfair state aid from their respective governments.



Contents [hide]
1 Competing products
1.1 Passenger capacity and range comparison
1.2 Airbus A380 vs Boeing 747
1.3 EADS/Northrop Grumman KC-45A vs Boeing KC-767
2 Modes of competition
2.1 Outsourcing
2.2 Technology
2.3 Provision of engine choices
2.4 Currency
2.5 Safety
3 Effect of competition on product plans
4 Orders and deliveries
5 Controversies
5.1 Subsidies
5.2 World Trade Organization litigation
6 See also
7 References
8 External links


Competing products
Passenger capacity and range comparison

Airbus and Boeing have a wide product range including single-aisle and wide-body aircraft covering a variety of combinations of capacity and range but they rarely compete head-to-head. The chart below shows how both manufacturers have responded to meet market needs with slightly different models while covering a broadly similar field.

A chart comparing the passenger capacity (two-class typical) and range (maximum in nautical miles) of in-production, future, and out-of-production Airbus and Boeing aircraft since 2000.
Airbus A380 vs Boeing 747

Cross-section comparison of the Airbus A380 and the Boeing 747-400

During the 1990s both companies researched the scope for a new model of very large aircraft, compared to the current largest passenger carrying aircraft then in use, Boeing's 747. Boeing decided the project would not be commercially viable,[2] with Airbus launching its a full-length double-deck aircraft A380 a decade later.

The wide-body Boeing 747-8, the latest modification of Boeing's largest airliner, and the A380, are therefore placed in direct competition on long-haul routes, and the two have been pitched as competitors on various occasions. Following delays to the A380 programme in October 2006, FedEx and the United Parcel Service cancelled their orders for the A380-800 freighter, with some A380 launch customers deferring delivery or considering switching to the 747-8 and 777F aircraft.[3][4] As of April 2009 no airline has cancelled an order for the passenger version of the A380.

Boeing claims the 747-8I to be over 10% lighter per seat and have 11% less fuel consumption per passenger, with a trip-cost reduction of 21% and a seat-mile cost reduction of more than 6%, compared to the A380. The 747-8F's empty weight is expected to be 80 tonnes (88 tons) lighter and 24% lower fuel burnt per ton with 21% lower trip costs and 23% lower ton-mile costs than the A380F.[5]

Equally, Airbus claims the A380 to have 8% less fuel consumption per passenger than the 747-8I and emphasises the longer range of the A380 while using up to 17% shorter runways.[6] The A380-800 also has cabin 478 square metres (5,145.1 sq ft) of floor space, 49% more than the 747-8, and in 2007 Singapore Airlines CEO Chew Choong Seng stated the A380 was performing better than both the airline and Airbus had anticipated, burning 20% less fuel per passenger than the airline's 747-400fleet.[7] Emirates' Tim Clark claims that the A380 is more fuel economic at Mach 0.86 than at 0.83.[8] Other commentators noted the "downright eerie" lack of engine noise, with the A380 being 50% quieter than a 747-400 on takeoff.[9] Airbus delivered the 100th A380 on 14 March 2013.[10]

From 2012 Airbus will offer, as an option, a variant with improved maximum take-off weight allowing for better payload/range performance. The precise increase in maximum take-off weight is still unknown. British Airways and Emirates will be the first customers to take this offer.[11] Boeing currently has four commercial airline orders for the 747-8I: Lufthansa (20), Korean Airlines (5), Air China (5), and Arik Air (2).[12]
EADS/Northrop Grumman KC-45A vs Boeing KC-767[

The announcement in March 2008 that Boeing had lost a US$40 billion refuelling aircraft contract to Northrop Grumman and Airbus for the EADS/Northrop Grumman KC-45 with the United States Air Force drew angry protests in the United States Congress.[13] Upon review of Boeing's protest, the Government Accountability Office ruled in favour of Boeing and ordered the USAF to recompete the contract. Later, the entire call for aircraft was rescheduled, then cancelled, with a new call decided upon in March 2010.

Boeing later won the contest, with a lower price, on February 24, 2011.[14] The price was so low some in the media believe Boeing would take a loss on the deal; they also speculated that the company could perhaps break even with maintenance and spare parts contracts.[15] In July 2011, it was revealed that projected development costs rose $1.4bn and will exceed the $4.9bn contract cap by $300m. For the first $1bn increase (from the award price to the cap), the U.S. government would be responsible for $600m under a 60/40 government/Boeing split. With Boeing being wholly responsible for the additional $300m ceiling breach, Boeing would be responsible for a total of $700m of the additional cost.[16][17][18][clarification needed]
Modes of competition[edit]
Outsourcing

Because many of the world's airlines are wholly or partially government owned, aircraft procurement decisions are often taken according to political criteria in addition to commercial ones. Boeing and Airbus seek to exploit this by subcontracting production of aircraft components or assemblies to manufacturers in countries of strategic importance in order to gain a competitive advantage overall.

For example, Boeing has maintained longstanding relationships with Japanese suppliers including Mitsubishi Heavy Industries and Kawasaki Heavy Industries by which these companies have had increasing involvement on successive Boeing jet programs, a process which has helped Boeing achieve almost total dominance of the Japanese market for commercial jets. Outsourcing was extended on the 787 to the extent that Boeing's own involvement was reduced to little more than project management, design, assembly and test operation, outsourcing most of the actual manufacturing all around the world. Boeing has since stated that it "outsourced too much" and that future airplane projects will depend far more on its own engineering and production personnel.[19]

Partly because of its origins as a consortium of European companies, Airbus has had fewer opportunities to outsource significant parts of its production beyond its own European plants. However, in 2009 Airbus opened an assembly plant in Tianjin, China for production of its A320 series airliners.[20]
Technology

Airbus sought to compete with the well-established Boeing in the 1970s through its introduction of advanced technology. For example, the A300 made the most extensive use of composite materials yet seen in an aircraft of that era, and by automating the flight engineer's functions, was the first large commercial jet to have a two-man flight crew. In the 1980s Airbus was the first to introduce digital fly-by-wire controls into an airliner (the A320).

With Airbus now an established competitor to Boeing, both companies use advanced technology to seek performance advantages in their products. Many of these improvements are about weight reduction and fuel efficiency. For example, the Boeing 787 Dreamliner is the first large airliner to use 50% composites for its construction. The Airbus A350 now being in the process of flight test feature 53% composites.
Provision of engine choices

The competitive strength in the market of any airliner is considerably influenced by the choice of engine available. In general, airlines prefer to have a choice of at least two engines from the major manufacturers General Electric, Rolls-Royce and Pratt & Whitney. However, engine manufacturers prefer to be single source, and often succeed in striking commercial deals with Boeing and Airbus to achieve this. Several notable aircraft have only provided a single engine offering: the Boeing 737-300 series onwards (CFM56), the Airbus A340-500 & 600 (Rolls-Royce Trent 500), the Airbus A350 XWB (Rolls-Royce Trent XWB), the Boeing 747-8 (GEnx-2B67), and the Boeing 777-300ER/200LR/F (General Electric GE90).[21] However, Boeing's 787 Dreamliner has two engine types available; the General Electric GEnx and the Rolls-Royce Trent 1000.
Currency

Boeing's production costs are mostly in United States dollars, whereas Airbus' production costs are mostly in Euro. When the dollar appreciates against the euro the cost of producing a Boeing aircraft rises relatively to the cost of producing an Airbus aircraft, and conversely when the dollar falls relative to the euro it is an advantage for Boeing. There are also possible currency risks and benefits involved in the way aircraft are sold. Boeing typically prices its aircraft only in dollars, while Airbus, although pricing most aircraft sales in dollars, has been known to be more flexible and has priced some aircraft sales in Asia and the Middle East in multiple currencies. Depending on currency fluctuations between the acceptance of the order and the delivery of the aircraft this can result in an extra profit or extra expense — or, if Airbus has purchased insurance against such fluctuations, an additional cost regardless.[22]
Safety

Both aircraft manufacturers have good safety records on recently manufactured aircraft. By convention, both companies tend to avoid safety comparisons when selling their aircraft to airlines. Most aircraft dominating the companies' current sales, the Boeing 737-NG and Airbus A320 families and both companies' wide-body offerings, have good safety records. Older model aircraft such as the Boeing 727, the original Boeing 737s and 747s, Airbus A300 and Airbus A310, which were respectively first flown during the 1960s, 1970s, and 1980s, have had higher rates of fatal accidents.[23] According to Airbus' John Leahy, the Boeing 787 Dreamliner battery problems will not cause customers to switch airplane supplier.[24]
Effect of competition on product plans

The A320 has been selected by 222 operators (Dec. 2008), among these several low-cost operators, gaining ground against the previously well established 737 in this sector; it has also been selected as a replacement for 727s and aging 737s by many full-service airlines such as Star Alliance members United Airlines and Lufthansa. After dominating the very large aircraft market for four decades, the Boeing 747 now faces a challenge from the A380. In response, Boeing now offer the stretched and updated 747-8, with greater capacity, fuel efficiency, and longer range. Frequent delays to the Airbus A380 program caused several customers to consider cancelling their orders in favour of the refreshed 747-8,[25] although none have done so and some have even placed repeat orders for the A380. However, all orders for the A380F freight variant have been cancelled. To date, Boeing has secured orders for 78 747-8F and 45 747-8I aircraft with first deliveries originally scheduled for 2011 and 2012 as the 747-8I is only in service with Lufthansa, while Airbus has orders for 262 A380s, the first of which entered service in 2007 and has delivered a total of 92 to customers (as of December 2012).

Several Boeing projects were pursued and then cancelled, for example the Sonic Cruiser. Boeing's current platform for fleet rejuvenation is the Boeing 787 Dreamliner, which uses technology from the Sonic Cruiser concept. The 787's rapid sales success and pressure from potential customers forced Airbus to revise the design of its competing A350.[citation needed]

Boeing initially ruled out producing a re-engined version of its 737 to compete with the Airbus A320neo family launch planned for 2015, believing airlines would be looking towards the Boeing Y1 and a 30% fuel saving, instead of paying 10% more for fuel efficiency gains of only a few percent. Industry sources believe that the 737's design makes re-engining considerably more expensive for Boeing than it was for the Airbus A320. However, there did prove to be considerable demand. Southwest Airlines, who use the 737 for their entire fleet (680 in service or on order), said they were not prepared to wait 20 years or more for a new 737 model and threatening to convert to Airbus.[26] Boeing eventually bowed to airline pressure and in 2011 approved the 737 MAX project, scheduled for first delivery in 2017.
Orders and deliveries
Orders 2014 2013 2012 2011 2010 2009 2008 2007 2006 2005 2004 2003 2002 2001 2000 1999 1998 1997 1996 1995 1994 1993 1992 1991 1990 1989
Airbus 0 1503 833 1419 574 271 777 1341 790 1055 370 284 300 375 520 476 556 460 326 106 125 38 136 101 404 421
Boeing 0 1355 1203 805 530 142 662 1413 1044 1002 272 239 251 314 588 355 606 543 708 441 125 236 266 273 533 716
Sources 2013: Airbus net orders until December 31, 2013 <http://www.airbus.com/company/market/orders-deliveries/>[27]

Boeing net orders until December 31, 2013 <http://active.boeing.com/commercial/orders/index.cfm>

Deliveries 2014 2013 2012 2011 2010 2009 2008 2007 2006 2005 2004 2003 2002 2001 2000 1999 1998 1997 1996 1995 1994 1993 1992 1991 1990 1989
Airbus 0 626 588 534 510 498 483 453 434 378 320 305 303 325 311 294 229 182 126 124 123 138 157 163 95 105
Boeing 0 648 601 477 462 481 375 441 398 290 285 281 381 527 491 620 563 375 271 256 312 409 572 606 527 402
Sources 2013: Airbus deliveries until December 31, 2013 <http://www.airbus.com/company/market/orders-deliveries/>[27]

Boeing deliveries until December 31, 2013 <http://active.boeing.com/commercial/orders/index.cfm?content=displaystandardreport.cfm&optReportType=CurYrDelv>




Yearly orders.



Yearly deliveries.



Orders/Deliveries overlay.

Orders and deliveries, by product
Civil airplanes2012 Deliveries2012 Orders2012 BacklogHistorical Deliveries *
AirbusBoeingAirbusBoeingAirbusBoeingAirbusBoeing
single aisle 1010 707
single aisle 155 717
single aisle 1831 727
single aisle 455 A320 415 737 739 A320 1124 737 3629 A320 family 3074 737 5402 A320 7425 737
single aisle 1049 757
widebody 26 767 22 767 68 767 561 A300
255 A310 1040 767
widebody 101 A330
2 A340 83 777 58 A330 68 777 306 A330 365 777 938 A330
377 A340 1066 777
widebody 0 A350 46 787 27 A350 -12 787 582 A350 799 787 0 A350 49 787
widebody 30 A380 31 747 9 A380 1 747 165 A380 67 747 119 A380 1458 747
Total588601833120346284373763015083
*Historical deliveries are all jet airliners from Boeing since 1958 and Airbus since 1974 until 31 December 2012
Boeing [28] Airbus [29]




Deliveries by year and product (through December 31, 2013)707717727737747757767777787Boeing[30]A300A310A320A330A340A350A380Airbus
1974 21 91 55 22 189 4 4
1975 7 91 51 21 170 8 8
1976 9 61 41 27 138 13 13
1977 8 67 25 20 120 15 15
1978 13 118 40 32 203 15 15
1979 6 136 77 67 286 26 26
1980 3 131 92 73 299 39 39
1981 2 94 108 53 257 38 38
1982 8 26 95 26 2 20 177 46 46
1983 8 11 82 22 25 55 203 19 17 36
1984 8 8 67 16 18 29 146 19 29 48
1985 3 115 24 36 25 203 16 26 42
1986 4 141 35 35 27 242 10 19 29
1987 9 161 23 40 37 270 11 21 32
1988 165 24 48 53 290 17 28 16 61
1989 5 146 45 51 37 284 24 23 58 105
1990 4 174 70 77 60 385 19 18 58 95
1991 14 215 64 80 62 435 25 19 119 163
1992 5 218 61 99 63 446 22 24 111 157
1993 152 56 71 51 330 22 22 71 1 22 138
1994 1 121 40 69 41 272 23 2 64 9 25 123
1995 89 25 43 37 13 207 17 2 56 30 19 124
1996 76 26 42 43 32 219 14 2 72 10 28 126
1997 135 39 46 42 59 321 6 2 127 14 33 182
1998 282 53 54 47 74 510 13 1 168 23 24 229
1999 12 320 47 67 44 83 573 8 222 44 20 294
2000 32 282 25 45 44 55 483 8 241 43 19 311
2001 49 299 31 45 40 61 525 11 257 35 22 325
2002 20 223 27 29 35 47 381 9 236 42 16 303
2003 12 173 19 14 24 39 281 8 233 31 33 305
2004 12 202 15 11 9 36 285 12 233 47 28 320
2005 13 212 13 2 10 40 290 9 289 56 24 378
2006 5 302 14 12 65 398 9 339 62 24 434
2007 330 16 12 83 441 6 367 68 11 1 453
2008 290 14 10 61 375 386 72 13 12 483
2009 372 8 13 88 481 402 76 10 10 498
2010 376 12 74 462 401 87 4 18 510
2011 372 9 20 73 3 477 421 87 26 534
2012 415 31 26 83 46 601 455 101 2 30 588
2013 440 24 21 98 65 648 493 108 25 626
2014 0 0 0 0 0 0 0 0 0 0 0
Total1010155183178651482104910611164114157315612555895104637701228256
707717727737747757767777787A300A310A320A330A340A350A380




Deliveries by decade and fuselage type (through Dec 31, 2013)Narrow-bodyWide-bodyBoeing[30]Narrow-bodyWide-bodyAirbus
1980s 1747 624 2371 74 402 476
1990s 2466 1232 3698 1068 563 1631
2000s 2974 966 3940 2983 827 3810
2010s 1603 585 2188 1770 488 2258
Total11910382115731589523618256


The first Airbus delivery was in 1974 and Boeing deliveries considerably exceeded that of Airbus throughout the 1980s. In the 1990s this lead narrowed significantly but Boeing remained ahead of Airbus partly because of Boeing's wider offering of aircraft types (707,737, 757) against Airbus' A320 family. In the 2000s Airbus assumed the lead in narrow-body aircraft despite Boeing still having a wider selection on offer (717, 737, 757). By 2013 little difference remained between Airbus and Boeing in either wide-body or narrow-body aircraft.



Aircraft still in operation707717727737747757767777787Boeing[30]A300A310A320A330A340A350A380Airbus
2006 68 155 620 4328 989 996 862 575 8593 408 199 2761 418 306 4092
2007 63 155 561 4583 985 1000 880 640 8867 392 193 3095 481 330 4491
2008 61 154 500 4761 955 980 873 714 8998 387 194 3395 533 330 4 4843
2009 58 142 442 4928 947 970 864 780 9131 376 188 3737 607 345 16 5269
2010 39 147 398 5153 915 945 863 858 9318 348 160 4092 675 342 30 5647
2011 10 130 250 5177 736 898 837 924 8962 296 121 4392 766 332 50 5957
2012 2 143 169 5357 690 860 838 1017 15 9091 262 102 4803 848 312 76 6403
2013 148 109 5458 627 855 821 1094 84 9180 234 84 5170 927 298 106 6819
707717727737747757767777787A300A310A320A330A340A350A380
World Airliner Census 2006 [31] World Airliner Census 2007 [32] World Airliner Census 2008 [33] World Airliner Census 2009 [34]
World Airliner Census 2010 [35] World Airliner Census 2011 [36] World Airliner Census 2012 [37] World Airliner Census 2013 [38]

Controversies

The Boeing 787 Dreamliner (above) will compete with the Airbus A330 and theAirbus A350 in the medium to long range market.
Subsidies

Boeing has continually protested over launch aid in the form of credits to Airbus, while Airbus has argued that Boeing receives illegal subsidies through military and research contracts and tax breaks.[39]

In July 2004 Harry Stonecipher (then CEO of Boeing) accused Airbus of abusing a 1992 bilateral EU-US agreement regarding large civil aircraft support from governments. Airbus is given reimbursable launch investment (RLI, called "launch aid" by the US) from European governments with the money being paid back with interest, plus indefinite royalties if the aircraft is a commercial success.[40] Airbus contends that this system is fully compliant with the 1992 agreement and WTO rules. The agreement allows up to 33 per cent of the programme cost to be met through government loans which are to be fully repaid within 17 years with interest and royalties. These loans are held at a minimum interest rate equal to the cost of government borrowing plus 0.25%, which would be below market rates available to Airbus without government support.[41] Airbus claims that since the signing of the EU-U.S. agreement in 1992, it has repaid European governments more than U.S.$6.7 billion and that this is 40% more than it has received.

Airbus argues that pork barrel military contracts awarded to Boeing (the second largest U.S. defence contractor) are in effect a form of subsidy (see the Boeing KC-767 vs EADS (Airbus) KC-45 military contracting controversy). The significant U.S. government support of technology development via NASA also provides significant support to Boeing, as do the large tax breaks offered to Boeing, which some claim are in violation of the 1992 agreement and WTO rules. In its recent products such as the 787, Boeing has also received substantial support from local and state governments.[42] However, Airbus' parent, EADS, itself is a military contractor, and is paid to develop and build projects such as the Airbus A400M transport and various other military aircraft.[43]

In January 2005, European Union and United States trade representatives Peter Mandelson and Robert Zoellick agreed to talks aimed at resolving the increasing tensions. These talks were not successful, with the dispute becoming more acrimonious rather than approaching a settlement.
World Trade Organization litigation


"We remain united in our determination that this dispute shall not affect our cooperation on wider bilateral and multilateral trade issues. We have worked together well so far, and intend to continue to do so."
Joint EU-US statement[44]

On 31 May 2005 the United States filed a case against the European Union for providing allegedly illegal subsidies to Airbus. Twenty-four hours later the European Union filed a complaint against the United States protesting support for Boeing.[45]

Increased tensions, due to the support for the Airbus A380, escalated toward a potential trade war as the launch of the Airbus A350 neared. Airbus preferred the A350 programme to be launched with the help of state loans covering a third of the development costs, although it stated it will launch without these loans if required. The A350 will compete with Boeing's most successful project in recent years, the 787 Dreamliner. EU trade officials questioned the nature of the funding provided by NASA, the Department of Defense, and in particular the form of R&D contracts that benefit Boeing; as well as funding from US states such as Washington, Kansas, and Illinois, for the development and launch of Boeing aircraft, in particular the 787.[46] An interim report of the WTO investigation into the claims made by both sides was made in September 2009.[47]

In September 2009, the New York Times and Wall Street Journal reported that the World Trade Organization would likely rule against Airbus on most, but not all, of Boeing's complaints; the practical effect of this ruling would likely be blunted by the large number of international partners engaged by both plane makers, as well as the expected delay of several years of appeals. For example, 35% of the Boeing 787 Dreamliner is manufactured in Japan. Thus, some experts are advocating a negotiated settlement.[48] In addition, the heavy government subsidies offered to automobile manufacturers in the United States have changed the political environment; the subsidies offered to Chrysler and General Motors dwarf the amounts involved in the Airbus-Boeing dispute.[49]

In March 2010, the WTO ruled that European governments unfairly financed Airbus.[50] In September 2010, a preliminary report of the WTO found unfair Boeing payments broke WTO rules and should be withdrawn.[51] In two separate findings issued in May 2011, the WTO found, firstly, that the US defence budget and NASA research grants could not be used as vehicles to subsidise the civilian aerospace industry and that Boeing must repay $5.3 billion of illegal subsidies.[52] Secondly, the WTO Appellate Body partly overturned an earlier ruling that European Government launch aid constituted unfair subsidy, agreeing with the point of principle that the support was not aimed at boosting exports and some forms of public-private partnership could continue. Part of the $18bn in low interest loans received would have to be repaid eventually; however, there was no immediate need for it to be repaid and the exact value to be repaid would be set at a future date.[53] Both parties claimed victory in what was the world's largest trade dispute.[54][55][56]

On 1 December 2011 Airbus reported that it had fulfilled its obligations under the WTO findings and called upon Boeing to do likewise in the coming year.[57] The United States did not agree and had already begun complaint procedures prior to December, stating the EU had failed to comply with the DSB's recommendations and rulings, and requesting authorisation by the DSB to take countermeasures under Article 22 of the DSU and Article 7.9 of the SCM Agreement. The European Union requested the matter be referred to arbitration under Article 22.6 of the DSU. The DSB agreed that the matter raised by the European Union in its statement at that meeting be referred to arbitration as required by Article 22.6 of the DSU however on 19 January 2012 the US and EU jointly agreed to withdraw their request for arbitration.[58]

On 12 March 2012 the appellate body of the WTO released its findings confirming the illegality of subsidies to Boeing whilst confirming the legality of repayable loans made to Airbus. The WTO stated that Boeing had received at least $5.3 billion in illegal cash subsidies at an estimated cost to Airbus of $45 billion. A further $2 billion in state and local subsidies that Boeing is set to receive have also been declared illegal. Boeing and the US government were given six months to change the way government support for Boeing is handled.[59] At the DSB meeting on 13 April 2012, the United States informed the DSB that it intended to implement the DSB recommendations and rulings in a manner that respects its WTO obligations and within the time-frame established in Article 7.9 of the SCM Agreement. The European Union welcomed the US intention and noted that the 6-month period stipulated in Article 7.9 of the SCM Agreement would expire on 23 September 2012. On 24 April 2012, the European Union and the United States informed the DSB of Agreed Procedures under Articles 21 and 22 of the DSU and Article 7 of the SCM Agreement.[60]

On 25 September 2012 the EU requested discussions with the USA, because of the non compliance of the US and Boeing with the WTO ruling of 12 March 2012. On 27 September 2012 the EU requested the WTO to approve EU countermeasures against USA's subsidy of Boeing. If the WTO approves and the discussions between the EU and USA fail, the EU wants permission to place trade sanctions of up to 12 billion US$ annually against the USA. The EU believes this amount represents the damage the illegal subsidies of Boeing cause to the EU.[61][62]
See also
Airbus Executive and Private Aviation
Boeing Commercial Airplanes
Competition in the Regional jet market
List of civil aircraft
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Newhouse, John (2007), Boeing versus Airbus, USA: Vintage Books, ISBN 978-1-4000-7872-1
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MANSBRIDGE ONE ON ONE | Season 15, Episode 7 | Oct 26, 2013 | 22:30 Beverley McLachlin: Chief Justice of the Supreme Court of Canada A rare conversation with the Chief Justice

http://www.cbc.ca/player/News/TV+Shows/Mansbridge+One+on+One/ID/2414536928/





MANSBRIDGE ONE ON ONE | Season 15, Episode 7 | Oct 26, 2013 | 22:30 Beverley McLachlin: Chief Justice of the Supreme Court of Canada A rare conversation with the Chief Justice about the inner workings of the Supreme Court, including insight into how the Court will deal with the government's reference questions about Senate reform and abolition. CBC TV: Available for Windows in the Windows Store TV

Date: 2006-01-12 Docket: CA33447 Parallel citations: 262 DLR (4th) 681; 49 BCLR (4th) 82 URL: http://canlii.ca/t/1mb94 Citation: Radke v. M.S. et al, 2006 BCCA 12 (CanLII), retrieved on 2014-01-09

Date: 2006-01-12
Docket: CA33447
Parallel citations: 262 DLR (4th) 681; 49 BCLR (4th) 82
URL: http://canlii.ca/t/1mb94
Citation: Radke v. M.S. et al, 2006 BCCA 12 (CanLII), <http://canlii.ca/t/1mb94> retrieved on 2014-01-09
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COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

Radke v. M.S. et al,




2006 BCCA 12


Date: 20060112



Docket: CA33447

Between:

Christopher Radke

Respondent

(Plaintiff)

And:

M.S., an infant by his litigation guardian J.S.,

Malik Rama, and Insurance Corporation of British Columbia

Respondents

(Defendants)

And:

Robert Kurtz, Her Majesty the Queen in Right of the Province of
British Columbia, Attorney General of British Columbia,
and Attorney General of Canada

Appellants

(Defendants)

And:

Her Majesty the Queen in Right of the Province of

British Columbia, Attorney General of British Columbia,

and Attorney General of Canada

Appellants

(Third Parties)






Before:

The Honourable Chief Justice Finch


The Honourable Madam Justice Rowles

The Honourable Mr. Justice Low




H.J. Roberts

Counsel for all Appellants


Place and Date of Hearing:

Vancouver, British Columbia


November 28, 2005


Place and Date of Judgment:

Vancouver, British Columbia


January 12, 2006






Written Reasons by:


The Honourable Chief Justice Finch


Concurred in by:


The Honourable Madam Justice Rowles

The Honourable Mr. Justice Low









Reasons for Judgment of the Honourable Chief Justice Finch:

I.

[1] The issue raised on this application is whether a judgment that decides only liability issues, but not damages, is a final order for which leave to appeal is not required, or an interlocutory order within Section 7(2)(a) of the Court of Appeal Act, R.S.B.C. 1996, c. 77, for which leave to appeal is required.

[2] At the conclusion of the oral hearing, we held that the order was final and that leave to appeal was not required with written reasons to follow. These are those reasons.

II.

[3] The plaintiff Radke claims damages for injuries suffered in a motor vehicle accident on 16 February 2003. His vehicle was struck in an intersection by a stolen vehicle driven by a young offender, M.S., who failed to stop at a stop sign. The stolen vehicle was being pursued by Constable Kurtz, an R.C.M.P. officer driving a police vehicle.

[4] A consent order was made that the issues of fault or liability be tried separately and in advance of the issues on damages.

[5] Madam Justice Bennett heard the trial on liability. She pronounced judgment on 27 September 2005. All parties conceded that M.S. was primarily at fault for the accident. The issues at trial were the liability of Constable Kurtz, and of the provincial and federal governments.

[6] The trial judge held that Constable Kurtz was negligent in the operation of his vehicle, and that his negligence contributed to the plaintiff’s injuries. It was not disputed that if Constable Kurtz was held to be negligent, the province was jointly and severally liable with him.

[7] The judge also held that Constable Kurtz was not grossly negligent. Therefore, applying the provisions of Section 21 of the Police Act, R.S.B.C. 1996, c. 367, he was not personally liable. The parties agreed that if Constable Kurtz was not personally liable, the Government of Canada was not liable.

[8] The action against I.C.B.C. was dismissed. The judge held that the plaintiff Radke was not negligent in the operation of his vehicle.

[9] Counsel from the Department of Justice applied in chambers for directions as to whether leave to appeal was required. In accordance with current practice, she filed both a notice of appeal and a notice of application for leave to appeal. Both documents name Constable Kurtz, the Crown in Right of the Province of British Columbia, the Attorney General for British Columbia, and the Attorney General for Canada as appellants, or applicants. The chambers judge referred the motion for directions to a division of this Court.

III.

[10] The relevant provisions of the Court of Appeal Act are:

6(1) An appeal lies to the court

(a) from an order of the Supreme Court or an order of a judge of that court, and

…



7(2) Despite, section 6(1), an appeal does not lie to the court from

(a) an interlocutory order,

…



without leave of a justice.





[11] The Court of Appeal Act does not define “interlocutory order”. For many years this Court has applied, or attempted to apply, the test stated by Lord Alverstone C.J. in Bozson v. Altrincham Urban District Council [1903] 1 K.B. 547 at 548-49 (C.A.) to determine what is, or is not, interlocutory:

It seems to me that the real test for determining this question ought to be this: Does the judgment or order, as made, finally dispose of the rights of the parties? If it does, then I think it ought to be treated as a final order; but if it does not, it is then, in my opinion, an interlocutory order.

[Emphasis added.]



[12] Application of this test has become increasingly difficult because of the number of cases where the trial is “split” with liability being decided separately from, and in advance of, damage issues, as was done in this case. Difficulties also arise from the large number of cases now decided under Rule 18A which provides in subrule 18A(11) that:

On the hearing of an application under subrule (1), the court may

(a) grant judgment in favour of any party either on an issue, or generally …





[13] The difficulties in applying the Bozson test, and the sometimes inconsistent results, are referred to in H.A. Brinton, Civil Appeal Handbook, looseleaf (Vancouver: Continuing Legal Education, 2002) at ss. 3.4, 3.7 and 3.8.

[14] Under the Bozson test, it is the “judgment or order, as made” which determines whether it is a final or interlocutory order. Applied in this case, the order would be seen as interlocutory because damages have not been assessed, and the order therefore does not finally dispose of the parties’ rights. Only if the action had been dismissed against all defendants who contested liability would the order be final under the Bozson test.

[15] It is to be remembered that in Bozson itself the judge had held there to be no binding contract, and made an order dismissing the action. It was on appeal from that order that the Court of Appeal laid down the test as expressed by Lord Alverstone. The Court did not have before it a case in which liability had been found and damages remained to be assessed.

[16] Such a case was before a division of this Court in Boslund v. Abbotsford Lumber, Mining & Development Co. Ltd. (1925), 36 B.C.R. 386 (B.C.C.A.). There the trial judge held the defendants liable for negligence in allowing fires to spread to the plaintiff’s lands. He referred the assessment of damages to the Registrar.

[17] On the defendant’s appeal from the finding of liability, the respondents raised the preliminary objection that the appeal was interlocutory and therefore out of time. This Court overruled the objection and held that:

[9] … when the Court decides the substantial question of liability and merely refers the assessment of damages to a referee reserving nothing to itself, the judgment ought to be regarded as a final judgment for the purposes of appeal.





[18] It is evident that if the trial judge had held there to be no liability and dismissed the plaintiff’s action, the order would have been seen as final. So in that case, characterization of the order as final did not depend upon “the judgment or order, as made”, to use the language ofBozson. The case may be seen as one where the order would have been characterized as final for the purposes of appeal no matter which way the judge decided the issue of liability.

[19] This approach to the issue of “final or interlocutory” has sometimes been called the “application approach”. Rather than look to the order “as made”, one looks to the application that gave rise to the order. On this approach, a final order is one made on such an application or proceeding that, no matter who succeeds, the order will, if sustained, finally determine the matter in litigation. Examples of this approach go back at least to Salaman v. Warner [1891] 1 Q.B. 734.

[20] The application approach has now been clearly embraced by the English Court of Appeal in White v. Brunton [1984] 2 All E.R. 606. There, the plaintiff brought an action against the defendant for damages for breach of contract and for a declaration that, by an agreement, the defendant had agreed to contribute to the costs associated with construction of an access road. The district registrar ordered that a preliminary issue be tried, namely whether the defendant was liable under the contract for construction costs associated with the access road. The preliminary issue was determined in favour of the defendant and the plaintiff sought leave to appeal. Sir John Donaldson M.R. held that the plaintiff did not need leave to appeal. He said at 608:

The court is now clearly committed to the application approach as a general rule and Bozson’s case can no longer be regarded as any authority for applying the order approach. However, the decision in Bozson’s case, as distinct from the reasoning, can be upheld on a different ground as an exception to the general rule. It was a case of a ‘split trial’, all questions of liability and breach of contract being tried before and separately from any issues as to damages. If the two parts of the final hearing of the case had been tried together, there would have been an unfettered right of appeal, even if the judgment had been that there was no liability and that accordingly no question arose as to damages. It is plainly in the interests of the more efficient administration of justice that there should be split trials in appropriate cases, as even where the decision on the first part of a split trial is such that there will have to be a second part, it may be desirable that the decision shall be appealed before incurring the possibly unnecessary expense of the second part. If we were to hold that the division of a final hearing into parts deprived the parties of an unfettered right of appeal, we should be placing an indirect fetter on the ability of the court to order split trials. I would therefore hold that, where there is a split trial or more accurately, in relation to a non-jury case, a split hearing, any party may appeal without leave against an order made at the end of one part if he could have appealed against such an order without leave if both parts had been heard together and the order had been made at the end of the complete hearing.

[Emphasis added.]







[21] The application approach was again adopted by the English Court of Appeal in Holmes v. Bangladesh Biman Corporation [1988] 2 Lloyd’s Rep. 120. There, after citing White with approval, Lord Justice Bingham (as he then was) said:

Order 33, r. 3 gives the Court a wide discretion to order the separate trial of different issues in appropriate cases and a decision is not to be regarded as interlocutory simply because it will not be finally determinative of the action which ever way it goes. Instead, a broad common sense test should be applied, asking whether (if not tried separately) the issue would have formed a substantive part of the final trial. Judged by that test this judgment was plainly final, even though it did not give the plaintiff a money judgment and would not, even if in the airline’s favour, have ended the action.





See also Dale v. British Coal Corp. [1992] E.W.J. No. 351 (QL) and Webb v. Webb [1996] E.W.J. No. 141 (QL).

[22] More recently in Roerig v. Valiant Trawlers Ltd. [2002] 1 W.L.R. 2304, [2002] 1 All E.R. 961, [2002] 1 Lloyd’s Rep. 681, after referring toWhite v. Brunton and the broad common sense test expressed by Lord Justice Bingham in Holmes v. Bangladesh, Lord Justice Waller said this:

[46] If one poses the question-if no preliminary issue had been ordered would the decision as to the appropriate law have formed a substantive part of the final decision on damages?-the answer would undoubtedly be that it would, and that an appeal would have lain to the Court of Appeal against that final decision. The fact that the issue is sensibly taken separately should not deprive a party of their right to go to the Court of Appeal, and furthermore it would be an active discouragement to parties to support the trial of preliminary issues if the result was to so deprive them. That is the principle that the new rules in my view seek to uphold.



[23] In my view, the time has now come to restate the principle expressed by this Court in Boslund v. Abbotsford, and to adopt the approach of the English Court of Appeal in White v. Brunton and the subsequent English cases referred to above. If liability had not been tried separately, it would have been tried as part of a single trial. The parties would have had the right of appeal no matter what the outcome. If the action had been dismissed on liability, the plaintiff would have had a right of appeal. It is unfair that the defendant should not have a right of appeal when liability has been found.

[24] There are practical advantages to split trials. If the defendant is not liable, there is no need to try damages. That will save the parties time and expense. If liability is found, the parties may be able to resolve the damage issues without a trial. If the plaintiff’s injuries have not resolved to the point where damages can fairly be tried, the parties may still try the liability issues while the events are fresh in the witnesses’ memories. A right of appeal from a decision on liability alone will facilitate all of these practical goals.

[25] Applying the broad common sense test expressed in the English authorities, the question to be asked in this case is whether the issue decided by the trial judge, if it had not been tried separately, would have formed a substantive part of the final trial. It is clear that the trial judge’s disposition of the liability issues would have been such a substantive part, and that the resulting order should therefore be treated, for the purposes of appeal, as final.

[26] These are the reasons on which I would rest the order pronounced at the conclusion of the oral hearing of this appeal.



“The Honourable Chief Justice Finch”

I AGREE:



“The Honourable Madam Justice Rowles”





I AGREE:



“The Honourable Mr. Justice Low”









Corrigendum to the reasons of

The Honourable Chief Justice Finch – 19 April 2006

The citation at paragraph 7 for the Police Act should read R.S.B.C. 1996, c.367.

Date: 2007-04-17 Docket: CA033447 Parallel citations: 280 DLR (4th) 647; 66 BCLR (4th) 174 URL: http://canlii.ca/t/1r4xz Citation: Radke v. M.S. (Litigation guardian of), 2007 BCCA 216 (CanLII), COURT OF APPEAL FOR BRITISH COLUMBIA

Date: 2007-04-17 Docket: CA033447 Parallel citations: 280 DLR (4th) 647; 66 BCLR (4th) 174 URL: http://canlii.ca/t/1r4xz Citation: Radke v. M.S. (Litigation guardian of), 2007 BCCA 216 (CanLII), <http://canlii.ca/t/1r4xz> retrieved on 2014-01-09 Share: Share Print: PDF Format Noteup: Search for decisions citing this decision Reflex Record Related decisions, legislation cited and decisions cited COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Radke v. M.S. (Litigation guardian of), 2007 BCCA 216 Date: 20070417 Docket: CA033447 Between: Christopher Radke Respondent (Plaintiff) And M.S., an infant by his litigation guardian J.S., Malik Rama, and Insurance Corporation of British Columbia Respondents (Defendants) And Robert Kurtz, Her Majesty the Queen in Right of the Province of British Columbia, Attorney General of British Columbia, and Attorney General of Canada Appellants (Defendants) And Her Majesty the Queen in Right of the Province of British Columbia, Attorney General of British Columbia, and Attorney General of Canada Appellants (Third Parties) Before: The Honourable Madam Justice Newbury The Honourable Mr. Justice Lowry The Honourable Mr. Justice Chiasson J. A. Bowers, Q.C. and B. Bharaj Counsel for the Appellants, Attorney General of British Columbia and Robert Kurtz C. R. Bacon Counsel for the Respondent (Plaintiff) G. P. Brown and M. K. Kinch Counsel for the Respondents (Defendants) Place and Date of Hearing: Vancouver, British Columbia January 30, 2007 Place and Date of Judgment: Vancouver, British Columbia April 17, 2007 Written Reasons by: The Honourable Mr. Justice Lowry Concurred in by: The Honourable Madam Justice Newbury The Honourable Mr. Justice Chiasson Reasons for Judgment of the Honourable Mr. Justice Lowry: [1] Christopher Radke was seriously injured when a stolen vehicle driven by a young offender who was age 15 ("M.S.") ran through a stop sign and collided with his car. M.S. was at the time being pursued by a member of the R.C.M.P., Constable Robert Kurtz. Mr. Radke brought this action for damages against M.S., the Attorney General, and the police officer. It was tried before Madam Justice Bennett who found both M.S. and the officer to have been negligent; the conduct of both fell below the required standard of care. The judge apportioned the fault for the collision between them 85% and 15% respectively: 2005 BCSC 1355 (CanLII), 48 B.C.L.R. (4th) 178, 2005 BCSC 1355. The Province of British Columbia is liable for the conduct of the officer. The Attorney General of British Columbia appeals, raising two grounds upon which it is contended the judge erred. The Attorney General of Canada is named as an appellant but takes no part in the hearing of this appeal. [2] Counsel for the Attorney General of British Columbia first says that it was not open to the judge to find the officer was negligent in having breached the standard of care in the absence of any evidence that he failed to meet the standard required of a competent police officer. He says no evidence was adduced to establish the standard of care. He then says the judge erred in concluding that the officer's conduct in pursuing M.S. caused the collision, in the absence of any evidence with respect to causation. Both grounds are then predicated on there being an absence of evidence to prove two of the requisite elements of the tort of negligence. [3] The appeal was argued with the appeal in Burbank v. R.T.B., 2007 BCCA 215 (CanLII), 2007 BCCA 215, in which judgment is being rendered concurrently. The factual circumstances are somewhat similar and the grounds of the appeal are the same. [4] I outline the circumstances of the pursuit and the judge's conclusions before addressing the two grounds of the appeal. The Pursuit and the Judge's Conclusions [5] Constable Kurtz first observed the vehicle when he was responding to a call about a residential "break and enter" that had occurred. The vehicle was parked and unoccupied. He established, through his dispatcher, it had been reported stolen. He continued on but requested assistance first to watch and then to disable the vehicle on his return, in the expectation of waiting to apprehend its occupants when they arrived. Three other police officers were dispatched and took up positions near the vehicle. [6] Perhaps 15 or 20 minutes later, when Constable Kurtz was again in the vicinity of the vehicle, M.S. and two others got into the vehicle and drove away. One of the officers driving an unmarked van followed. Constable Kurtz, who was then coordinating the pursuit, decided to take over the pursuit himself. He was driving a regularly marked police vehicle. The judge found what happened after that to be as follows: [29] Thus, I make the following findings of fact relating to the pursuit: the stolen vehicle was travelling under the speed limit initially. The speed limit was 50 km/h. It slowed, but did not stop, at the stop sign at Albert Street. It slowed to 20 km/h, but did not stop, at the stop sign at Frances Street, at which point the pursuit commenced. Constable Kurtz turned on both lights and siren. The vehicle picked up speed. The vehicle sped around the corner at Union Street and almost hit the south-side curb, causing M.S. to lose some control of the vehicle. The vehicle accelerated, driving through the stop sign at Beta Avenue at 40 km/h. It continued to accelerate and drove through the stop sign at Alpha Avenue at 60 km/h. Finally, it drove through the stop sign at Willingdon Avenue and struck Mr. Radke's vehicle when travelling at approximately 70 km/h. The entire pursuit lasted 46 seconds. [7] In considering whether the conduct of Constable Kurtz was to any degree negligent, the judge cited the standard of care to be that stated by Kirkpatrick J., as she then was, in Doern v. Phillips Estate 1994 CanLII 1869 (BC SC), (1994), 2 B.C.L.R. (3d) 349 at para. 68 (S.C.), aff'd 1997 CanLII 2433 (BC CA), (1997), 43 B.C.L.R. (3d) 53 (C.A.): ... [T]here is little doubt that the standard of care to which a police officer will be held is that of a reasonable police officer, acting reasonably and within the statutory powers imposed upon him or her, according to the circumstances of the case. [8] The judge then reviewed the legislation governing police pursuits as well as the applicable R.C.M.P. policies. She said: [71] The statutes and policy provisions provide the context within which to assess whether there was negligence on the part of Constable Kurtz. [72] I add that no expert evidence was provided on the issue of how a reasonable police officer would conduct himself or herself. However, while not saying expert evidence would be inadmissible, in this case, given the facts, the statutes, the policy and case law, I do not need expert evidence to assess whether negligence existed. [73] In assessing the conduct of Constable Kurtz it is necessary to determine whether he complied with the policy. [74] In Noel (Committee of) v. Botkin, 1995 CanLII 3320 (BC SC), (1995), 9 B.C.L.R. (3d) 21, [1995] 7 W.W.R. 479 (S.C.), Clancy J. summed up the approach in this way, at para. 65: In summary, the question to be asked in assessing the conduct of police officers during pursuit is whether they, viewed objectively from the viewpoint of a reasonable police officer, acted reasonably and within the statutory powers conferred upon them. In considering that question, the Court must take into account that officers will be expected to perform the duties imposed on them by statute and to comply with policies adopted by the force to which they belong. A failure to comply with policy will not necessarily constitute negligence, nor will an error in judgment. Officers are exempted from compliance with certain traffic rules, provided they meet they meet [sic] the requirements of s.118 of the Motor Vehicle Act. There must be a recognition that officers are required to exercise judgment in balancing the competing interests of arresting wrongdoers and protecting citizens. [75] Therefore, Constable Kurtz's compliance or non-compliance with the pursuit policy is a factor, albeit an important factor, in determining whether he was negligent. See also Doern, supra, at para. 69; Doern v. Phillips Estate 1997 CanLII 2433 (BC CA), (1997), 43 B.C.L.R. (3d) 53, 2 D.L.R. 108 (C.A.), at para. 15-16. [9] After summarizing what she considered to be the principles to be derived from the legislation and the police policies, and expressing the view that Constable Kurtz should have taken the opportunity to disable the vehicle when he had the opportunity, the judge concluded as follows: [83] [Constable Kurtz's] assessment before he started the pursuit did not give due consideration to the factors in the police pursuit policy. The stolen vehicle was not being driven in a manner that threatened public safety. The offence being committed, which he thought was a dual or hybrid offence (and he was probably right), was not a serious offence. There was no one in position to assist him, which raised the risk to the public significantly. [84] Once he put on his lights to pull the vehicle over and saw that the driver's response was to accelerate in a residential area and drive through stop signs while heading towards one of, if not the busiest street in Burnaby, a proper risk assessment would have informed him of the significant danger to the public posed by continuing the pursuit. Constable Kurtz clearly did not follow police policy when initiating the pursuit or by continuing it once the vehicle began accelerating and driving dangerously. [85] Taking into account his failure to conduct proper risk assessments at two critical times, I find Constable Kurtz did not act within the standard of the reasonable police officer, acting reasonably and within the statutory powers imposed upon him in the context of all of the circumstances of this case. I find Constable Kurtz breached his duty of care. [10] With respect to Constable Kurtz's conduct having been a cause of the collision with Mr. Radke's automobile, the judge said: [86] The negligence was clearly a contributing cause to the injuries suffered by Mr. Radke. While I acknowledge M.S. was not obeying traffic signs, it was not until the pursuit commenced that he began driving dangerously. His dangerous driving and the accident was a consequence of the police pursuit. Standard of Care [11] The Attorney General contends that, because there was no evidence that a reasonably competent police officer would have conducted himself differently than did Constable Kurtz, it was not open to the judge to conclude that he had not met the requisite standard of care. Reliance is placed on what was said by Southin J.A., for a majority of four, in Roy v. British Columbia (Attorney General), 2005 BCCA 88 (CanLII), 38 B.C.L.R. (4th) 103, 2005 BCCA 88 at para. 36: Where, as here, at issue is the standard of a competent member of a trade or profession (and the occupation of peace officer falls within that rubric), evidence of those carrying on that occupation is necessary unless, in the words which McPherson C.J.M., inAnderson v. Chasney, reflex, [1949] 2 W.W.R. 337 (Man. C.A.) at 341, adopted from the American case of Mehigan v. Sheeham, 51 A.2d 632 (U.S. N.H. S.C. 1947), the matter is one of "non-technical matters or those of which an ordinary person may be expected to have knowledge." [12] The Attorney General says that no expert evidence was called in support of the case against Constable Kurtz and that police pursuits are not matters that lay persons know about. [13] However, as I have attempted to explain in Burbank, it was not necessary that there be evidence, much less expert evidence, of the standard of care to be met by a police officer for the judge to be able to determine whether the utility of the officer's conduct justified the risk to public safety. The question the judge had to answer was simply whether the nature of the crime (theft of an automobile) for which the police officer sought to apprehend M.S. was sufficiently serious to justify the risk of the consequences that became manifest within less than a minute of the commencement of the pursuit. The question was not unlike the kind of question judges have to regularly answer in negligence cases and, while there may be aspects of police pursuits that are foreign to those who are not trained or experienced police officers, the answer to the question lay well within what can be said to be common knowledge and experience. It lay in assessing whether Constable Kurtz had properly balanced the competing concerns of the apprehension of a young offender who had stolen a car against the danger of a pursuit at considerable speed on city streets where significant pedestrian and vehicular traffic could be expected. [14] The judge decided that the question with which she was faced in this case was to be answered in the negative. In so doing, she found the officer's conduct to be below the requisite standard of care. It was a decision that, on the evidence adduced, was open to her to make, such that I would not accede to the first ground of the appeal. Causation [15] The Attorney General contends that the evidence does not establish that Constable Kurtz's pursuit of M.S. caused the collision with Mr. Radke's automobile. He maintains that M.S. alone caused the collision by refusing to stop when the police car's lights and siren were engaged and then by running the stop sign. [16] I find the judge's succinct finding, that the pursuit was a cause of the collision, entirely consistent with the "but for" test recently affirmed inResurfice Corp. v. Hanke, 2007 SCC 7 (CanLII), 2007 SCC 7 at paras. 20-28, as I have discussed in Burbank. I would not accede to this ground of the appeal either. Disposition [17] I would dismiss the appeal. “The Honourable Mr. Justice Lowry” I agree: “The Honourable Madam Justice Newbury” I agree: “The Honourable Mr. Justice Chiasson”