British Columbia v. Tekavec, 2017 BCSC 613

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: British Columbia v. Tekavec, 2017 BCSC 613 Date: 20170113 Docket: 12-2563 Registry: Victoria Between: Her Majesty the Queen in Right of the Province of British Columbia Plaintiff And Louis Peter Tekavec and Louis Peter Tekavec doing business as Goldcrest Apartments Defendants And Julia Mark and Bruce Billy Third Parties Before: The Honourable Madam Justice Murray Oral Reasons for Judgment In Chambers Counsel for the Plaintiff: J. Connell P. Lawless Counsel for the Defendants: P.

Blokmanis Place and Date of Trial/Hearing: Victoria, BC January 12, 2017 Place and Date of Judgment: Victoria, B.C. January 13, 2017 THE COURT: [ 1 ] This is my ruling on the application heard yesterday. [ 2 ] On June 2, 2007, Mr. Jack visited Julia Mark and Bruce Billy at their apartment at the Goldcrest Apartments in Gold River, B.C. While he was there, he drank some beer, then went out onto the balcony for a cigarette. While on the balcony, he leaned against a railing, which gave way, and he fell three stories to the ground, suffering serious injuries. The defendant, Mr.

Tekavec, is the owner and manager of the Goldcrest Apartments. He rented the suite to Ms. Mark. [ 3 ] Two actions arose from this accident. The first is a claim for damages by Mr. Jack against Mr. Tekavec under the Occupiers Liability Act , R.S.B.C. 1996, c. 337, alleging that Mr. Tekavec was negligent in maintaining the property. The parties referred to this as the original action. I will do the same. The second is a claim by the Province against Mr. Tekavec under the Health Care Costs Recovery Act , S.B.C. 2008, c. 27 [“the HCCRA ”], seeking to recover the costs of Mr.

Jack's medical treatment for injuries suffered in the fall. [ 4 ] Both actions, which are based on the same fact pattern and turn on the same issues, have occupied a considerable amount of court time and are the subject of three B.C. Supreme Court decisions, two of which have been appealed to the B.C. Court of Appeal and the Supreme Court of Canada. [ 5 ] At the trial of the original action, Mr. Tekavec was found to be responsible for Mr. Jack's injuries, as he failed to inspect and repair the railing that had been faultily repaired by Mr. Billy. In reaching that conclusion, the court found that Mr.

Tekavec was aware that the railing required repair and was also aware that Mr. Billy had performed inadequate repairs on the rotted railing prior to the accident. Of note, Ms. Mark and Mr. Billy were not named as co-defendants in the original action, nor were they added as third parties by Mr. Tekavec, who represented himself. The issue of the repairs by Mr. Billy, however, was fully canvassed. In fact, Mr. Tekavec argued that Mr. Jack's injuries were the sole fault of the tenants.

The trial judge rejected this argument at paragraphs 54 to 63 of his reasons for judgment, which can be found at 2010 BCSC 1773 . [ 6 ] In his appeal of the original action, Mr. Tekavec raised several grounds, three of which are significant to the application at

hand: first, that the trial judge erred in failing to find that Mr. Billy and Ms. Mark were solely liable; second, he argued novus actus interveniens , that is, that Mr. Billy's inadequate and dangerous repairs constituted a new intervening act, which would cause to sever the link between Mr. Tekavec and the fall; and third, he challenged the deemed admissions regarding his knowledge of the state of the railing. These arguments were considered and rejected by the Court of Appeal in their reasons dismissing the appeal: 2011 BCCA 464 . Mr.

Tekavec attempted to appeal this decision to the Supreme Court of Canada, but leave was refused. [ 7 ] That is the history of the original action. [ 8 ] Before me is an application by the Province for

summary judgment against Mr. Tekavec in the separate but related action arising from Mr. Jack's fall from the balcony. That is the action by the Province under the HCCRA , which permits the Province to recoup the cost of healthcare services provided to a person enrolled in the B.C. Medical Services Plan as a result of injuries caused by the negligence or other wrongdoing of a wrongdoer. The Province claims just over $68,000 plus interest. This action has also been the subject of considerable litigation to date. [ 9 ] Of significance, in late 2013 this Court dealt with the plaintiff's application to strike Mr.

Tekavec's response to this claim. The issue as posed by Mr. Justice Bracken was whether the defendant, Mr. Tekavec, is bound in this action by the outcome in the original action that found him 100% liable for the injuries to Mr. Jack. Mr. Justice Bracken found that he was, stating at paragraph 45: The issues of liability and contributory negligence were fully dealt with and the defendant has exhausted any rights of appeal. I am satisfied that the defendant is prevented from raising any defence related to his liability or the plaintiff’s contributory negligence in this action.

He then said at paragraphs 50 and 51: [50] In the result, all issues of liability of the defendant for Mr. Jack’s injuries have been fully determined in the original action and his defence to this action is struck out. The third party claims were not finally decided in the original action and the third party claim may proceed between the defendant and Ms. Mark and Mr. Billy. . . . [51] The application of the Province to strike the Response to Civil Claim is allowed. The application of the defendant to strike the Notice of Claim is dismissed.

The defendant is entitled to proceed in his third party action against Ms. Mark and Mr. Billy. [ 10 ] This decision which can be found at 2013 BCSC 2312 , was upheld by the B.C. Court of Appeal and leave to appeal to the Supreme Court of Canada was dismissed. [ 11 ] The applicant relies on these judgments for this application. The applicant’s position, put at its most basic, is that all triable issues have been dealt with, Mr. Tekavec has been found to be 100% liable, and therefore he is responsible for the costs of Mr. Jack's care. Mr. Tekavec is free to go after Mr. Billy and Ms.

Mark separately if he wishes, but that has nothing to do with the claim made by the Province. [ 12 ] Mr. Tekavec, on the other hand, argues that the issues relating to Ms. Mark and Mr. Billy, who he has added as third parties to this s. 8 action, have not been decided. These, he argues, are important issues as s. 17 of the HCCRA allows for the apportionment of the costs between parties according to their liability. The issues that Mr. Tekavec says have not been decided are set out in an amended response to civil claim that he filed in response to Mr. Justice Bracken's decision.

These grounds involve remoteness and deemed admissions. [ 13 ] I pause to note that this same argument was unsuccessfully made in the Court of Appeal. As stated by the Court of Appeal in their ruling, 2014 BCCA 444 , at paragraph 31 : . . . the difficulty Mr. Tekavec faces is that the issues he seeks to advance in the

Section 8 Action were squarely before the trial judge and this Court in the Original Action, and both Courts made a final determination that Mr. Tekavec was wholly responsible for the damages resulting from Mr. Jack’s fall. [ 14 ] These arguments were dealt with in the original action. The amended response does not, in my view, alter anything. Remoteness is just another label for novus actus interveniens . [ 15 ] I now turn to the law regarding

summary judgment. The

summary judgment Rule serves an important purpose in the civil litigation system. It prevents claims or defences that have no chance of success from proceeding to trial. Conversely, it is essential to justice that claims disclosing real issues that may be successful proceed to trial. For this reason, the bar on a motion for

summary judgment is high. The defendant who seeks

summary dismissal bears the evidentiary burden of showing that there is no genuine issue of material fact requiring trial; Canada (Attorney General) v. Lameman , 2008 SCC 14 , at paragraphs 10 and 11 . [ 16 ] With those principles in mind and after considering submissions of counsel and the decisions that have been rendered in these actions, I am satisfied, as was Mr. Justice Bracken and our Court of Appeal, that there are no remaining triable issues regarding liability between the Province and Mr. Tekavec. As a result, I am granting the application and ordering judgment in the amount of $68,081.46 plus interest.

As was stated by Mr. Justice Bracken, Mr. Tekavec's action against Mr. Billy and Ms. Mark remains. Through that action, Mr. Tekavec may seek to recover some or all of the healthcare costs. [ 17 ] I will hear you on when interest should be accrued from, and costs. [SUBMISSIONS RE INTEREST AND COSTS 9:30:54 TO 9:33:26] [ 18 ] THE COURT: It will be judgment in the amount of $68,081.46 plus interest from April 30, 2015. [DISCUSSION RE COSTS 9:33:59 TO 10:02:30]

[ 19 ] THE COURT: Okay. I am going to make the date that interest starts April 30, 2015, being the date of the Supreme Court of Canada's decision because, in my view, that should have made things clear to Mr. Tekavec, and -- [ 20 ] MS. CONNELL: My Lady, if I could, I have prepared an updated draft order -- [ 21 ] THE COURT: Oh, yes. [ 22 ] MS. CONNELL: -- with accrual date as of April 30, 2015. [ 23 ] THE COURT: Thank you, and costs will be at Scale B. “Madam Justice Murray”