Buss v. Meichsner, 2015 BCSC 1914

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Buss v. Meichsner, 2015 BCSC 1914 Date: 20151020 Docket: 14795 Registry: Duncan Between: Thomas Weston Buss and Laura Rae Buss Plaintiffs And: Mark Peter Meichsner Defendant Before: The Honourable Mr. Justice B.D. MacKenzie Reasons for Judgment (On Costs) Counsel for the Plaintiffs: R.B. McDaniel Counsel for the Defendant: J.C.M. Main Place and Date of Defendant’s Written Submissions: Duncan, B.C. Undated and September 22, 2015 Place and Date of Plaintiffs’ Written Submissions: Duncan, B.C. September 17 and 18, 2015 Place and Date of Judgment: Duncan, B.C.

October 20, 2015 Introduction [ 1 ] On July 21, 2015, I released my reasons for judgment in this matter, indexed as Buss v. Meichsner , 2015 BCSC 1211 . I made no order with respect to costs. Both parties have now made submissions on costs. These reasons address the matter of costs arising from the five-day trial that commenced April 28, 2015. [ 2 ] To put the question of costs into proper perspective, it is appropriate to briefly recap the salient facts. The plaintiffs, Thomas and Laura Buss, and the defendant, Mark Meichsner, own adjacent waterfront parcels of land near Shawnigan Lake, B.C.

Both the plaintiffs’ and the defendant’s properties lie to the west of a right of way granted in favour of the E & N Railway, also known as the “corridor”. Other than by water access, both properties are accessible only by crossing the corridor. The plaintiffs have been granted pedestrian access to cross the corridor by the Island Corridor Foundation (“ICF”) which now operates the E & N right of way. The defendant does not have legal permission to cross the corridor. [ 3 ] The defendant’s property lies beyond the plaintiffs’ property.

There is an easement running over the plaintiffs’ property allowing the defendant to access his parcel of land, which is otherwise legally landlocked.

While the terms of the easement allow access by motor vehicle, the ICF does not currently permit vehicle crossings through the corridor, nor are there any plans to create a public crossing through the corridor in the foreseeable future. [ 4 ] At trial, the plaintiffs were seeking several forms of relief, primarily seeking to modify the terms of the easement pursuant to s. 35 of the Property Law Act , R.S.B.C. 1996, c. 377, in order to prevent the defendant from operating a motor vehicle within the easement.

In the alternative, the plaintiffs were seeking a conditional modification of the easement. [ 5 ] Because of the significant acrimony between the parties, the plaintiffs also sought injunctive relief to prevent the defendant from: 1. altering the easement area, including the removal of vegetation (most specifically two large fir trees); 2. entering the plaintiffs’ property, aside from the easement area; 3. communicating with the plaintiffs, except through counsel; and

4. allowing his dog to be in the easement area unless on a leash.

I will refer to these matters collectively as the “secondary matters.” [6] On the eve of trial, the defendant filed a counterclaim, seeking a declaration permitting him to “create a clearer path throughthe easement by removing, cutting, and trimming vegetation, including trees.” [7] In my earlier reasons, I granted the injunctive relief sought by the plaintiffs with regards to the “secondary matters.” I declinedto grant the modification of the easement to exclude motorized vehicles on the basis that the application to modify the easement waspremature.

I did however include a term in the injunction that precludes the use of motorized vehicles on the easement until such timethat the easement could be lawfully accessed by motor vehicles from the corridor in the future. [8] I dismissed the defendant’s counterclaim for a declaration allowing him to create a clearer path by cutting and clearingvegetation in the easement area. Assessment of Costs [9] Rule 14-1 of the Supreme Court Civil Rules governs the assessment of costs.

Specifically, Rule 14-1(9) provides that “costs ofa proceeding must be awarded to the successful party unless the court otherwise orders.” [10] At the outset, it is important to note what our Court of Appeal said in Giles v. Westminster Savings and Credit Union, 2010BCCA 282 at para. 74: 74. The purposes for which costs rules exist must be kept in mind in determining whether appellate intervention is warranted. Inaddition to indemnifying a successful litigant, those purposes have been described as follows by this Court: *“[D]eterring frivolous actions or defences”: Houweling Nurseries Ltd. v.

Fisons Western Corp. (1988), (BCCA), 37 B.C.L.R. (2d) 2 at 25 (C.A.), leave ref'd, [1988] S.C.C.A. No. 200, [1988] 1 S.C.R. ix; *“[T]o encourage conduct that reduces the duration and expense of litigation and to discourage conduct that has the oppositeeffect”: Skidmore v. Blackmore (1995), (BC CA), 2 B.C.L.R. (3d) 201 at para. 28 (C.A.); *“[E]ncouraging litigants to settle whenever possible, thus freeing up judicial resources for other cases: Bedwell v.

McGill, 2008BCCA 526, 86 B.C.L.R. (4th) 343 at para. 33; *“[T]o have a winnowing function in the litigation process” by “requir[ing] litigants to make a careful assessment of the strengthor lack thereof of their cases at the commencement and throughout the course of the litigation”, and by “discourag[ing] the continuanceof doubtful cases or defences”: Catalyst Paper Corporation v. Companhia de Navegaçao Norsul, 2009 BCCA 16, 88 B.C.L.R. (4th) 17at para. 16. [11] As noted in Gagne v.

Sharpe, 2015 BCSC 154 at para. 22, “success for costs purposes has been defined as substantial success.”Thus, the ordinary rule is that costs are to be awarded to the party who was substantially successful at trial. [12] What constitutes substantial success is not defined in the rules governing costs. In the clearest of cases, substantial success maybe defined as a plaintiff establishing liability under a cause of action and obtaining a remedy, or a defendant obtaining a dismissal of theplaintiff’s claim: Service Corporation International (Canada) Ltd. (c.o.b. Graham Funeral Ltd.) v.

Nunes-Pottinger Funeral Services &Crematorium Ltd., 2012 BCSC 1588 at para. 11. [13] Where there are multiple issues or sub-issues, and each party is successful on some of the matters in dispute, who is thesubstantially successful party may be less clear. In Fotheringham v.

Fotheringham, 2001 BCSC 1321 at para. 45, Bouck J. explains thatin these cases, substantial success must be determined “by the trial judge looking at the various matters in dispute and weighing theirrelative importance.” [14] Put another way, the assessment involves an “objective comparison of the relief granted and results obtained by the parties withthe submission made at trial”: MacLean v. Mio, 2011 BCSC 148 at para 30.

While a “meticulous mathematical examination of thematters in dispute” is not required, substantial success may be estimated to be success in 75% or more of the issues: Fotheringham atpara. 45. [15] Moreover, a party need not succeed on all issues, nor must the party be awarded the full quantum of relief sought to beconsidered substantially successful: Gagne at paras. 27 and 29. For example, a party may be considered successful despite an award ofdamages less than what had been asked for (see Nicholls v.

Columbia Taping Tools Ltd., 2014 BCSC 1428) and therefore still be entitledto costs. [16] In determining substantial success, the judge may also consider alternate forms of relief granted and the extent to which suchalternate relief mirrors the actual relief sought by the plaintiff. [17] Success on a particular matter, therefore, should not be approached in an “all or nothing” manner by questioning whether or notthe party achieves all of the precise relief sought. [18] Justice Bouck set out the following four-step inquiry to determine an award of costs in Fotheringham at para. 46: 1.

First, by focusing on the “matters in dispute” at the trial. These may or may not include “issues” explicitly mentioned in thepleadings. 2. Second, by assessing the weight or importance of those “matters” to the parties.

3. Third, by doing a global determination with respect to all the matters in dispute and determining which party “substantially succeeded,” overall and therefore won the event. 4. Fourth, where one party “substantially succeeded,” a consideration of whether there are reasons to “otherwise order” that the winning party be deprived of his or her costs and each side then bear their own costs. Moreover, in making a determination of whether a party has achieved substantial success, offers to settle should not be considered: Dykman v. Dykman , 2011 BCSC 1169 at para. 23 ; MacNutt v.

MacNutt , 2013 BCSC 1159 at para. 12 , cited with approval by Goepel J. (as he then was) in Paul v. Pumpole , 2013 BCSC 1844 . The Positions of the Parties on Costs [ 19 ] In the present case, both the plaintiffs and the defendant seek costs or double costs, and that the other party ought to be deprived of all or some costs. [ 20 ] In their submission, the plaintiffs rightly note that they were the successful party on all the “secondary matters” in dispute, even though they were not granted the modification of the easement to prevent motorized vehicle access.

However, the plaintiffs submit that while unsuccessful in achieving the primary remedy sought, the injunction granted to prohibit motorized vehicles in the easement has the same practical effect as would be the case if I had granted the actual modification of the easement.

The plaintiffs assert that on either a “quantitative or numerical basis” or on the basis of the relative importance of the issues between the parties, the plaintiffs have achieved substantial success. [ 21 ] The defendant disagrees and says the plaintiffs fell far short of the success needed in 75% of the matters in dispute, and suggests at best 50% success on behalf of the plaintiffs.

The defendant’s primary submission with regards to substantial success is that the main relief and the bulk of the evidence at trial pertained to the application to modify the easement and that the plaintiffs were unsuccessful on that matter.

The defendant does not substantiate his determination of success rate with any reference to the relief sought and granted on the secondary matters, apart from noting his consent to some of the secondary issues, such as no contact and keeping his dog on a leash, nor does the defendant address the significant injunctive relief granted to the plaintiffs, preventing motorized vehicles from being on the easement. [ 22 ] Both parties also made submissions on the basis that settlement offers were rejected that ought to have been reasonably accepted by the other party.

Both claim an entitlement to double costs on that basis. I will first assess the success of each party at trial before turning to the issue of offers to settle. Analysis A. Issues at Trial [ 23 ] According to the inquiry as set out in Fotheringham above, the first steps involve identifying the matters in dispute at trial, and weighing the importance of those matters to the parties before turning to a determination of substantial success. [ 24 ] As I explained above, there were several items of relief sought by the plaintiffs.

However, as noted in my earlier reasons for judgment at para. 86, the “most significant and problematic issue raised in this litigation” was the matter of motorized vehicle access to the easement by the defendant. Both the bulk of the trial and the submissions of the parties on costs were focused on this issue. [ 25 ] The “secondary matters” were important related matters, but of less significance to the parties.

As mentioned, at trial, the defendant did not seriously oppose an injunction preventing the conduct relevant to the “secondary matters,” and in fact consented to such relief, although he felt it was unnecessary. The only matter strongly opposed by the defendant was the question of the use of motorized vehicles in the easement area. There is little doubt in my view that this matter remained the most important issue among the parties. B.

Substantial Success [ 26 ] Having identified the issues to be resolved at trial and the relative primary importance of the issue regarding motorized vehicle access within the easement, the analysis must then turn to which party was substantially successful at trial. [ 27 ] Dealing with the “secondary matters” first, although of less importance to the parties, it is still worth noting that these remained issues at trial that were initially opposed by the defendant, albeit not strongly.

As such, in the analysis of substantial success, the plaintiffs were successful on these matters and I give that some weight in making my determination as to costs. [ 28 ] Turning to the primary issue of motorized vehicles in the easement area, as noted above, a party need not be successful in achieving the specific relief sought in order to be considered successful on a given matter.

Thus, the relief in the form of an injunction instead of a modification to the easement is not a bar to the plaintiffs being considered successful on this matter. [ 29 ] Furthermore, according to the steps set out in Fotheringham , the identification of the matters in dispute between the parties need not be as explicitly set out in the pleadings.

While the plaintiffs have requested relief in the form of a modification of the easement, the determination of substantial success need not slavishly follow the specific relief as claimed in the pleadings. [ 30 ] In this analysis, I may consider whether the party has proved the legal wrong, and the extent to which the relief granted is a remedy for that particular matter.

In this regard, I found the plaintiffs had established that the terms of the injunction including the question of motorized vehicles on the easement were necessary and appropriate, even though I concluded that the specific form of relief requested was not suitable. [ 31 ] This form of alternate relief can be distinguished from the outcome in Gagne where the petitioners there were granted an

alternate form of relief that for all practical purposes was much different than the primary relief they were seeking, and as such werefound not to have achieved substantial success. In the present circumstances however, I agree with the plaintiffs that the injunctiongranted here has the same practical effect as if the easement had actually been modified. [32] As a result, I find the plaintiffs were substantially successful on all matters of dispute between the parties.

The relief granted,for all practical purposes, was as requested by the plaintiffs, while the defendant was unsuccessful in opposing the claims made by theplaintiffs and in pursuing his counterclaim. C. Offers to Settle [33] The fact that a party has been successful at trial does not mean that the trial judge must award costs in its favour and, under Rule14-1(9), may make an order otherwise: Loft v. Nat, 2014 BCCA 108 at para. 49. One such basis for making a contrary order includes afailure to accept an offer to settle under Rule 9-1.

While an offer to settle is not a factor in determining whether a party has beensuccessful, it is relevant when considering whether a successful party should be deprived of all or some costs, as well as on the questionof double costs. [34] Rule 9-1(5) provides four options available to be exercised at the court’s discretion in assessing costs when an offer to settle hasbeen made: (5) (

a) deprive a party of any or all of the costs, including any or all of the disbursements, to which the party would otherwise beentitled in respect of all or some of the steps taken in the proceeding after the date of delivery or service of the offer to settle; (

b) award double costs of all or some of the steps taken in the proceeding after the date of delivery or service of the offer tosettle; (

c) award to a party, in respect of all or some of the steps taken in the proceeding after the date of delivery or service of theoffer to settle, costs to which the party would have been entitled had the offer not been made; (

d) if the offer was made by a defendant and the judgment awarded to the plaintiff was no greater than the amount of theoffer to settle, award to the defendant the defendant's costs in respect of all or some of the steps taken in the proceeding after the date ofdelivery or service of the offer to settle. [35] Rule 9-1(6) itemizes the considerations the trial judge may take into account in making an order under subrule (5): (6) (

a) whether the offer to settle was one that ought reasonably to have been accepted, either on the date that the offer to settlewas delivered or served or on any later date; (

b) the relationship between the terms of settlement offered and the final judgment of the court; (

c) the relative financial circumstances of the parties; (

d) any other factor the court considers appropriate. [36] Whether an offer ought reasonably to have been accepted must be considered from the perspective of the person receiving theoffer: Dykes v. Nagel, 2012 BCSC 973 at para. 36. [37] As both sides seek double costs against the other, it is worthwhile to note that the authority to award double costs is alsodiscretionary and must be exercised “in a just, principled, and consistent way”: Giles at para. 88. Some principles on the issue of doublecosts were summarized by Bernard J. in Gichuru v.

York, 2012 BCSC 1385: [25] An award of double costs is “a punitive measure against a litigant for that party’s failure, in all of the circumstances, to haveaccepted an offer to settle that should have been accepted”: Hartshorne v. Hartshorne, 2011 BCCA 29, at para. 25 [Hartshorne]. [26] On the question of whether the offer was one which the plaintiff ought reasonably to have accepted, the factors to consider are:(

a) the timing of the offer; (

b) whether the offer is related to the claim; (

c) how easily the offer could be evaluated; and, (

d) whether arationale was provided for the offer: Hartshorne, at para. 27. [27] The court is to assess the reasonableness of the rejection of the offer without reference to the ultimate decision after trial: Cairnsv. Gill, 2011 BCSC 420, at para. 18. [28] Applications for double costs have been dismissed where the offer in question has “provided little incentive for the plaintiff tosettle” or where the offer fell short of providing “a genuine incentive to settle”: Oh v. Usher, 2010 BCSC 122, at para. 10; and Brooks-Martin v.

Martin, 2011 BCSC 497, at para. 38. [29] The relationship between the offer and the final judgment of the court is “an independent factor to be considered in decidingwhether a double costs award should be made”: Hartshorne, at para. 30. [38] On this point, the court held in Crick v.

Crick (1997), (BC SC), 43 B.C.L.R. (3d) 251 (S.C.) at para. 8 , that“where there has been an accurate and timely offer to settle … double costs ought to be the rule rather than the exception …” [39] Despite a finding that the plaintiffs were substantially successful, the defendant submits that the plaintiffs should not only bedeprived of costs, but that an award of double costs should be made against them on the basis that they unreasonably declined one ormore settlement offers. The problem with this submission is that it runs afoul of the decision of our Court of Appeal in C.P. v.

RBC LifeInsurance Company, 2015 BCCA 30, where Goepel J.A. confirmed that double costs are to be awarded to a defendant only where theplaintiff’s action is dismissed. As a result, the defendant here is precluded from seeking an order for double costs.

[ 40 ] Nevertheless, the defendant says the plaintiffs should be deprived of their costs and/or he should be awarded some of his costs on the basis the plaintiffs unreasonably rejected at least two of his offers to settle. [ 41 ] The first offer from the defendant was August 15, 2013 and proposed that the action against the defendant be dismissed.

I note as well that this offer included a term that “the plaintiffs will provide written consent to the Defendant to remove the trees,” as well as a term that “the Plaintiffs will reimburse the Defendant for all of his legal expenses in regards to this legal action, a statement of which will be provided upon acceptance of this proposal.” Given these conditions, it is not surprising this offer was not accepted by the plaintiffs. [ 42 ] The defendant however maintains that the plaintiffs should have accepted his offer of December 18, 2013, a proposal which is relatively consistent with the injunctive relief precluding motorized vehicles from having access to and over the easement until permission is received from the owner of the corridor.

It does however contain a term that if motorized vehicles are allowed to cross the corridor, Mr. Meichsner would be permitted “to construct a driveway in the easement area.” Such a proposal is abhorrent to the plaintiffs and as such I am unable to agree with the defendant that this was an offer that ought reasonably to have been accepted by the plaintiffs.

In addition, the defendant proposed that if he obtained permission from the relevant government agencies, he would be “allowed to clear the Easement area of brush and other impediments,” a condition that would allow him to remove the two large fir trees, again something the plaintiffs have resisted from day one.

Given these terms, I do not find this offer was one that ought to have been reasonably accepted by the plaintiffs. [ 43 ] The defendant further submits that his “formal offer to settle” of January 8, 2014 ought to have been accepted by the plaintiffs as it basically reiterated the plaintiffs’ April 2013 offer, including a term that the fir trees would not be “disturbed” without the plaintiffs’ express written consent. However, the defendant confirmed that this offer was withdrawn by letter to the plaintiffs’ counsel the following day.

The defendant then claimed in the same letter to have “purported to accept” the April 2013 offer. However, in his written submissions, the defendant states that his then counsel had asked on January 6, 2014, “if” the April 2013 offer “was still open.” After obtaining instructions, plaintiffs’ counsel wrote defendant’s counsel the next day, January 7, 2014, advising that the April 2013 offer had been withdrawn.

Given these unique and rather uncertain circumstances, I am unable to find the plaintiffs acted unreasonably in this puzzling chain of events, and reject the submission of the defendant that he made an “offer” the plaintiffs should have accepted, an “offer” he withdrew the next day, or that the defendant had a “binding settlement” with the plaintiffs when he “purported to accept” the April 2013 offer. [ 44 ] As a result, I am unable to conclude there is a sufficient basis to deprive the plaintiffs of any costs as a result of not accepting an offer to settle. [ 45 ] As far as the plaintiffs are concerned, they too submit an offer to settle was unreasonably refused by the defendant, and that they should be awarded double costs for all steps taken after a second offer on April 13, 2015.

The offer made by the plaintiffs at that time in many ways mirrors the relief I ordered at trial, given that I have found the injunctive relief is for all practical purposes the same as modification of the easement.

While the defendant made no submission with respect to the reasonableness of rejecting this particular offer, the offer contained everything the plaintiffs were seeking as well as their costs, unlike their original offer in April 2013 where they proposed that each party bear their own costs, and pending approval to cross the corridor, did not allow for non-motorized vehicle use, a term which was important to the defendant.

When considered in its entirety, I am of the view there was little motive or incentive for the defendant to settle on the terms of this offer. [ 46 ] Therefore, I do not find this final offer was one the defendant ought to have reasonably accepted and, as a result, I am not satisfied the plaintiffs are entitled to double costs after April 13, 2015. [ 47 ] On a final note, I am not persuaded that the defendant’s “behavior” during the litigation warrants a different conclusion on the issue of costs. While I found that the defendant’s behaviour was at times inappropriate, Mr.

Buss’s occasional unflattering behaviour was equally noted at trial. Moreover, the defendant’s conduct was a relevant consideration when I determined the injunctive relief was an appropriate remedy. [ 48 ] The parties have not made submissions surrounding the relative financial circumstances of the parties, apart from acknowledging this litigation has been expensive.

Indeed, the defendant has properly submitted that “the most relevant considerations with respect to costs are indeed the Offers that were made.” Disposition [ 49 ] Having considered the totality of the circumstances, I find that the plaintiffs were substantially successful in this matter and are entitled to costs on Scale B. I do not find any basis for a departure from the rule awarding costs to the successful party, such that the plaintiffs should be deprived of their costs or that there should be costs against them. At the same time, I dismiss the plaintiffs’ application with respect to double costs.

The defendant’s application for costs is dismissed. [ 50 ] As far as this application is concerned, there has been divided success. The parties will bear their own costs. “B.D. MacKenzie, J.” The Honourable Mr. Justice B.D. MacKenzie