Aird v. Country Park Village Properties (Mainland) Ltd., 2004 FC 945

Date: 20040630

Docket: T-1849-01

Citation: 2004 FC 945

BETWEEN:

TED AIRD, VIVIEN AIRD, GLENN ALSIP, SHIRLEY ALSIP, SHIRLEY BEATTIE, AL BOSSERT, ROGER BOYCE, PAT BOYCE, JIM COLLINS, OLIVE COLLINS, REG COOPER, PAT COOPER, BILL DAVIES, JESSIE DAVIES, ED DAVIES, ELANIE DAVIES, TONY DAVIS, JACKIE DAVIS, WILLARD EDWARDS, ETHNA EDWARDS, PATRICIA ELLIOT, ARCHIBALD ELLIS, KURT FENGLER, ANNA FENGLER, LARRY FENGLER, RENATE FENGLER, TOM GLANCY, SHIRLEY GLANCY, JOE GRZYB, DORLES GRYZB, JOHN GUILIANA, BRITT GUILIANA, ED HOLMES, ETHEL HOLMES, HELEN HOLZWORTH, HERB HOLZWORTH, KATHY HRISHUK, MIKE HRISHUK, PETER JOHNER, HELEN JOHNER, ERNIE KAHLER, HILDA KAHLER, RON BACON, Executor of the Estate of JOSEPH KOVACS, GERRY McCARTHY, MARILYN McCARTHY, RON McCOMB, ROSE McCOMB, PETR MEISTER, INGRID MEISTER, WAYNE MITCHEL, TRUDIE MITCHEL, DIANE MOORE, JOHN MOORE, JOHN MORSE, CATHERINE MORSE, ROY NEFF, DAISY NEFF, JOAN OLLIFFE, JOHN OSTENDORF, NELLIE OSTENDORF, NORMAN PARKER, ROXIE PARKER, KEN PATTERSON, JEFFREY PUNSHON, DOREEN PUNSHON, ELAINE EBY, DOROTHY REID, ED ROGOZINSKY, DELORES ROGOZINSKY, DEREK ROLPH, BETTE ROLPH, DAVID SCHELLENBERG, JOHN SNYDERS, JANNIE SNYDERS, RUDY SNYDERS, JOHN SONNEVELDT, WILLIE SONNEVELDT, TOM SPANN, IRMA SPANN, HARLYN SPROULE, FAYE SPROULE, HENRY STRYD, ADRIANA STRYD, STAN TURNER, HAL WESTON, DOLORES WESTON, DON WHITTAKER, MARYANN WHITTAKER, CATHERINE KNUDSEN, HOWARD KNUDSEN, MARGARET MAKI, LEO MAKI, LORENZ LOHNINGER, HANNELORE LOHNINGER, MARGARET TIBBEN, RALPH CHURCHILL, SANDRA CHURCHILL, JANET REED, CHRIS SEABROOK, MARGARET SEABROOK, FRED HOWSE, PHYLLIS HOWSE, MACE HARRISON, IRENE HARRISON, BUD THOMPSON, MARJORIE THOMPSON, JOHANNA AUBERTIN, GORDON SIDDONS, ROSEMARY SIDDONS, RUSS GRILLS, DIANE GRILLS, BILL MILLER, GERRY MILLER, DEBORAH INNES, ARLESS MISFELDT, JANET MISFELDT, STANLEY BAXTER and GRACE BALES,

                                                                                                                                            Plaintiffs,

                                                                         - and -

                        COUNTRY PARK VILLAGE PROPERTY (MAINLAND) LTD.,

                                                                                                                                          Defendant.

                                            REASONS FOR ORDER AND ORDER

LAYDEN-STEVENSON J.

[1]                The reasons for judgment and judgment with respect to the matter herein were issued on April 13, 2004. Regarding costs, the judgment states:

The matter of costs is deferred. Absent resolution by agreement, counsel are to serve and file written submissions on the issue of costs within 60 days of the date of this judgment. Responses to those submissions are to be served and filed within 10 days of service of the first submissions or within 70 days of the date of this judgment, at the election of counsel. This court remains seised of this matter with respect to the determination of the issue of costs.

[2]                Counsel have not been able to agree on costs and I have now received the written submissions as well as the responses.

[3]                The plaintiffs submit that they clearly prevailed on five of six issues. They maintain that although they were not completely successful, they should be entitled to all of their costs because they were substantially successful. With respect to the question of "recreational vehicle storage", they seek solicitor-and-client costs on the basis that the plaintiffs' evidence on this issue consumed significant trial time and the defendant ultimately conceded the point. Alternatively, they submit that only a small deduction from an award of full costs should be made to reflect the defendant's success on one minor issue.

[4]                The defendant contends that, upon review and a detailed analysis, success has been divided. It says that it has prevailed on certain key issues. Its method of allocation for water and sewage charges and for common area expenses, its appraiser's use of the direct comparison approach, the use of the differential rate adopted for setting duplex lot rents and the plaintiffs' failure to recover any overpayment for water and sewage charges constitute issues where, the defendant maintains, it prevailed entirely. In addition to proposing various approaches to employ in awarding costs, the defendant suggests that the plaintiffs should either not recover the costs incurred with respect to their expert or that those costs should be substantially limited.

[5]                Costs are within the discretion of the court: Federal Court Rules, 1998, Rule 400(1). The factors that may be considered include, but are not limited to, those set out in Rule 400(3):

[6]                Costs should be neither punitive nor extravagant. It is a fundamental principle that an award of costs represents a compromise between compensating a successful party and not unduly burdening an unsuccessful party: Apotex Inc. v. Wellcome Foundation Ltd. (1998), 159 F.T.R. 233 (F.C.T.D.), aff'd. (2001) 199 F.T.R. 320 (F.C.A.). As a general rule, costs should follow the event. Absent an abuse of process, a successful plaintiff should not be penalized simply because not all the points advanced by the plaintiff have found favour with the court:Sunrise Co. Ltd. v. The "Lake Winnipeg" (1988), 96 N.R. 310 (F.C.A.). Regarding the importance and complexity of the issues, it is the legal significance and complexity, including the number of issues, that are to be considered and not the factual subject matter: TRW Inc. v. Walbar of Canada Inc. (1992), 146 N.R. 57 (F.C.A.); Unilever PLC v. Procter & Gamble Inc. (1995), 184 N.R. 378 (F.C.A.); Porto Seguro Companhia De Seguros Gerais v. Belcan S.A. (2001) 214 F.T.R. 291 (F.C.T.D.).

[7]                The trial in this matter, including argument, took 11 days. The reasons for judgment identify three issues for determination:

(a)         What is the appropriate Fair Market Rent for the four year period commencing March 1, 2000?

(b)         Is [the defendant] required to account for additional rent overcharge?

(c)       Is [the defendant] required to provide [recreational vehicle] storage free of charge and, if so, to whom?

[8]                The determination of the first issue involved resolution of subsidiary issues. Specifically, it required the court: to determine whether the term "fair market rent" referred to basic rent or gross rent; to determine whether the 1996 rent was fair market rent; to determine the appropriate method to allocate water and sewage charges; to examine and analyze the expert appraisal evidence; and ultimately, to determine the fair market rent. Resolution of the second issue regarding additional expenses followed, in large part, from resolution of the first issue. Only the obligation to account and the method of allocation for common expenses had to be determined. The actual calculations regarding additional expenses were resolved by agreement following the completion of the trial. The third issue was time consuming and turned on an interpretation of the head lease and sublease.

[9]                The issues in this action were not complex. Aside from contractual interpretation, the matter was factually driven. In terms of the above noted issues, the plaintiffs were successful in relation to all but two subsidiary issues. Both of those issues dealt with the method of allocation of costs. I do not view the defendant's success on those issues to be significant enough to warrant a departure from the general rule. Any proposed entitlement to costs by the defendant in this respect is offset by Mr. Eden's failure to admit - prior to giving testimony at trial - the content of his oral representations to the plaintiffs with respect to recreational vehicle parking and the fact that he made such representations. That omission, however, does not entitle the plaintiff to solicitor-and-client costs. The admission constituted a concession only with respect to his representations; it did not constitute a concession regarding the plaintiffs' entitlement to the recreational vehicle parking. While Mr. Eden's conduct in this respect did unnecessarily lengthen the proceedings, I do not regard it as being so reprehensible, scandalous or outrageous as to warrant costs on a solicitor-and-client basis.

[10]            Regarding the expert appraisers' evidence, the court found neither of the appraisals to be entirely satisfactory. I will not grant the defendant's request for a direction that the plaintiffs' costs regarding their expert should be denied or reduced. The plaintiffs' expert used four different approaches to determine the fair market rent because, in his opinion, the subject property was unique and there were not many reliable comparables. One of his methods was the same as that chosen by the defendant's expert and ultimately by the court - the direct comparison approach. The defendant's appraiser's report had its own deficiencies and it cannot be said that it was "accepted".

[11]            Awarding costs is not a science. In my view, the court is required to have regard to the factors set out in Rule 400(3) to ensure that costs are awarded in accordance with the principles discussed earlier herein. A microscopic dissection or analysis of each subsidiary issue argued is neither necessary nor appropriate.

[12]            The plaintiffs were, for the most part, successful and are entitled to their costs throughout against the defendant, such costs to be taxed at the mid-range of column III of Tariff B.

                                               ORDER

IT IS HEREBY ORDERED THAT the plaintiffs will have their costs throughout against the defendant, such costs to be taxed at the mid-range of colum III of Tariff B.

__________________________________

    Judge

Ottawa, Ontario

June 30, 2004

                                     FEDERAL COURT

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                  T-1849-01

STYLE OF CAUSE: Ted Aird et al. v. Country Park Village Properties

(Mainland) Ltd.

PLACE OF HEARING:                                 Vancouver, British Columbia

DATE OF HEARING:                                   January 27, 2004 to February 12, 2004

REASONS FOR ORDER

AND ORDER BY : The Honourable Madam Justice Layden-Stevenson

DATED:                     June 30, 2004

APPEARANCES:

Mr. Ian D. MacKinnon                                                  FOR PLAINTIFFS

Ms. Bianca Scheirer

Mr. George E.H. Cadman, Q.C.                                    FOR DEFENDANT

Mr. John Mostowich

SOLICITORS OF RECORD:

Robertson, Downe & Mullally

Abbotsford, British Columbia                                         FOR PLAINTIFFS

Boughton, Peterson, Yang, Anderson

Vancouver, British Columbia                                          FOR DEFENDANT