Camosun College Plaintiff v. Levelton Engineering Ltd., Phil Seabrook,, 2013 BCSC 1728

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Camosun College v. Levelton Engineering Ltd., 2013 BCSC 1728 Date: 20130819 Docket: 11-2080 Registry: Victoria Between: Camosun College Plaintiff And Levelton Engineering Ltd., Phil Seabrook, Thurber Engineering Ltd., Kevin B. Sterne, Gregory Ovstaas and the said Gregory Ovstaas doing business as G. Ovstaas & Associates, Read Jones Christoffersen Ltd. and Leslie Peer Defendants And Levelton Engineering Ltd., Carl E. Peterson Architects Inc., Farmer Construction Ltd., Gregory Ovstaas doing business as G. Ovstaas & Associates, and Read Jones Christoffersen Ltd.

Third Parties Before: The Honourable Madam Justice Gray Oral Reasons for Ruling In Chambers Counsel for the Plaintiff: B.D.M. Loewen (as agent) Counsel for the Defendants, Levelton Engineering Ltd. and Phil Seabrook: S.W. Lesiuk Counsel for the Third Party, Farmer Construction Ltd.: P.C.M. Freeman, QC Place and Date of Trial/Hearing: Victoria, B.C. August 19, 2013 Place and Date of Judgment: Victoria, B.C. August 19, 2013 [ 1 ] THE COURT: The matter before me is an application for an adjournment of a hearing that is set for two days later on this week. [ 2 ] The lawsuit is a construction case.

The first two defendants I am told were involved in arranging the specifications for renovations to a building known as the Young Building at the plaintiff's Camosun College premises in Victoria. I have been told by plaintiff's counsel that the claim is for millions of dollars, I think roughly $11 million. [ 3 ] Mr. Lesiuk, counsel for Levelton Engineering Ltd. and Mr.

Seabrook, says that Levelton's fee for the work it did related to this was $750 and that it was minor involvement. [ 4 ] The application that is set for later this week is the application of the defendants Levelton and Seabrook to have the claim against them dismissed. There are several grounds. I am told in fact that there are six grounds. Some of them relate to relying on admissions. Some of them relate to relying on the pleadings. I will not take the time to read the grounds into the record, but I will say that Mr.

Mulroney, counsel for the plaintiff, has said that he cannot deal with some of these on the basis of conflict between him and his clients, or potential conflict, and he says he has gone so far as to get independent advice. He says that due to the potential conflict, he has obtained legal advice, and it is separate counsel who appeared before me today.

[ 5 ] As I said during the course of argument, the test for the court is to consider what prejudice there is on both sides of seeking an adjournment. I am satisfied that the prejudice to the plaintiff is that it cannot rely on Mr. Mulroney, the counsel of record, to defend all six bases on which the two applying defendants Levelton and Seabrook wish to have the claim dismissed. That is a significant prejudice. [ 6 ] The position of the defendants Levelton and Seabrook is that they have been fighting this case for a long time. It has been ongoing for a couple of years. Mr.

Lesiuk argued vigorously that there was no real claim against them and they want to get on with having the claim against them struck. [ 7 ] Mr. Lesiuk also suggested that it would be possible for some portion of the claim to proceed this week and the portions regarding which Mr.

Mulroney says that he has a potential conflict would proceed at a later time. [ 8 ] I am not satisfied that is sensible in the context either of this case or the length of adjournment sought. [ 9 ] I did speak to the registry and I was told that the application could be set for the week of September 30 and both counsel are in agreement to that date. They are also agreeable to have it set on the basis that it is peremptory to Camosun College. [ 10 ] I am satisfied it is necessary to adjourn this matter.

I will make the order that it be adjourned to the week of September 30, and it is to be peremptory to the plaintiff. [ 11 ] There are other terms Levelton and Mr. Seabrook seek to include in the terms of the adjournment. [ 12 ] Another one, by consent, is that there would be no examinations for discovery conducted, as between Camosun College and Levelton and Seabrook, pending the hearing of the application that is the subject of this adjournment application.

I will make that order by consent. [ 13 ] Levelton and Seabrook also suggested they might seek the solicitor's file and it is agreed that whether the solicitor's file must be produced must be the subject of an application which can be brought in any registry counsel can agree on. [ 14 ] A further agreed term relates to the request by Mr. Seabrook and Levelton for an order that the documents that were produced by Levelton not be used without leave of the court.

I understand this relates to documents produced in a different lawsuit which had been commenced in 2008, and which documents were obtained from Levelton, not because Levelton was a party, but because Levelton was the subject of a court order to produce the documents. [ 15 ] I do not know at this moment whether an implied undertaking applies to documents produced by non-parties pursuant to a court order, but I leave that for another day for someone else to work out. [ 16 ] The parties consent to an order that those documents are not to be used without leave of the court or by consent. [ 17 ] I think the only remaining term then is dealing with costs.

It is the position of Levelton and Mr. Seabrook that they should be entitled to costs thrown away and that they should be assessed at $8,000. [ 18 ] I expressed the view in argument that there is no basis for me to pick the number $8,000 out of the air. I think there may be jurisdiction in the court to order lump sum costs, but the usual order when a matter is adjourned through no fault of the opposing party is that it is costs thrown away to be assessed by the registrar.

The registrar is in a good position to look at what work has been done by a party which has been thrown away, meaning cannot be captured and retained for the purposes of the hearing when it does proceed. [ 19 ] I am going to make the order that Levelton and Mr. Seabrook are entitled to their costs thrown away in respect of the hearing proceeding this week, such costs to be assessed by the registrar. [ 20 ] I think I have dealt with all of the terms that you were seeking. [ 21 ] MR. LOEWEN: I believe so, My Lady. Can I just ask for clarification? [ 22 ] THE COURT: All right. [ 23 ] MR.

LOEWEN: They may show my ignorance, but in terms of the costs thrown away, are those on a solicitor/client scale? Or are on they on Scale B? [ 24 ] THE COURT: I think they are on a solicitor/client basis, but they are costs actually thrown away. [ 25 ] MR. LOEWEN: Thank you, My Lady. If that was your intention, then I am happy with that, I just sought clarification. [ 26 ] MR. LESIUK: My Lady, that does deal with everything. I am just wondering if there is a need for a registrar's hearing. I think there may not be if ... [ 27 ] THE COURT: Or as agreed by the parties. [ 28 ] MR.

LESIUK: I am just thinking that it be in the registry, agreeable to both parties. It doesn't have to be in Victoria. [ 29 ] THE COURT: Sure. A registrar's hearing in any registry agreeable to the parties. That is fine. [ 30 ] MR. LESIUK: Thank you, My Lady. “Gray J.”