Medema v. McCreight and McCreight Date:, 2016 BCPC 205

Citation: Medema v. McCreight and McCreight Date: 20160707 2016 BCPC 205 File No: 51214 Registry: Vernon IN THE PROVINCIAL COURT OF BRITISH COLUMBIA SMALL CLAIMS COURT BETWEEN: LEON MEDEMA CLAIMANT AND: MICHAEL McCREIGHT AND PAMELA McCREIGHT DEFENDANTS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE McKIMM Counsel for the Claimant: D. Poulin Counsel for the Defendants: S. Schott Place of Hearing: Vernon , B.C. Dates of Hearing: April 11 and 12, 2016

Date of Judgment: July 7, 2016 [ 1 ] The Claimant seeks damages for nuisance or in the alternative, negligence for the damage caused to his home as a result of water running off the Defendants’ property, across the road, down a drainage ditch and onto the property of the Claimant, ultimately entering the Claimant’s home causing serious damage to the lower level of that home. For the reasons that follow, I find that the Claimant has proven their case in nuisance and are entitled to damages as pled and their claim is allowed in full.

Facts [ 2 ] The Claimant and Defendants both live in a semi-rural area just outside of the city of Vernon, B.C. The Claimant’s property is a single family dwelling on a regular city lot. The level of the ground floor of the house is about a meter to a meter and a half below the street level. A driveway runs down to the home from the street level down to the level of the ground floor. At the top of the driveway, where it connects to the public road, there is a culvert under the driveway which would have originally carried water from the ditch beside the road under the driveway and through a ditch and away.

At some point well before the Claimant purchased the property in August 2002, the ditch that crossed the front of the Claimant’s property was filled in allowing the Claimant’s predecessors to landscape their property to the edge of the road. This reclamation of the ditch also stopped water from escaping down the ditch other than down the driveway and into the Claimant’s house. [ 3 ] The Defendants’ property is an approximately 142 meter x 52 meter rectangular lot across the public road from the Claimant’s property.

The property slopes generally downhill from back to front and accesses the common public road by way of a panhandle driveway at the front or western most end of the property. Prior to the events of June 3, 2014, there had never been any incident involving water running from the Defendants’ property across the road and on to the Claimant’s property. Prior to 2011, the Defendants’ property was undeveloped grassland. They began construction of their single family home and a separate workshop garage in 2011 having obtained a building permit from the appropriate authorities.

They built a large home on the upper eastern portion of the property and a large shop on the lower or western side of the property. [ 4 ] The effect of their development necessarily reduced the capacity of their lot to absorb water. As the geotechnical expert wrote in his report of January 5, 2015, “ Little or no infiltration however can occur on paved or compacted surfaces, such as driveways or cleared areas affected by repeated vehicle loading.” (Westrek Report , January 5, 2015, Page 3) (hereinafter referred to as the “ Westrek Report” ).

There is no evidence of the effect of the buildings on the dispersal of rain water. Along the northern side of the property, the Defendants constructed an attractive raised garden bordered by cribbing to hold the soil back. The purpose of the decorative garden was to install a row of trees which would have the effect of no doubt acting both as a windbreak and an aesthetic compliment to very attractive landscaping throughout.

Regrettably it had the unfortunate and unintended consequence of directing surface water down the length of the driveway and not allowing it to flow naturally across the northern 152 meter property line. [ 5 ] Detailed contour maps were filed showing the change in the contour of the property as a result of the Defendants’ construction. They establish that the result of the Defendants’ work is that the gentle slope of the property from east to west has been accentuated and re-directed to the north-east in the direction of the panhandle driveway and northern property line.

In effect the re-sloped property now directs any surface water towards the cribbing along the northern edge of the property.

The cribbing along the driveway and northern edge of the property stops the natural flow of water across the northern property line and all water must travel down the driveway and on to the public road and ultimately on to the property of the Claimant. [ 6 ] Those same contour maps also appear to show that the uphill property to the north-east of the Defendants’ property has been materially altered changing the contour of that property to redirect water directly on to the north east corner of the Defendants’ property.

Water from that property would no doubt have exacerbated the events that led to the damage to the Claimant’s property, although those property owners are not parties to this litigation and I make no findings in that regard. [ 7 ] On June 3, 2014, a serious storm travelled through the North Okanagan. In pockets it deposited enormous amounts of rainfall on very small locations. The media reported many instances of serious water damage throughout the area as a result of the unusual amount of water that fell so quickly. While the storm was severe, it was not particularly unusual for the area.

The Westrek Report establishes that the amount of rainfall which fell in the period in question is rainfall which one might reasonably expect every five years (page 3). In my view this opinion underestimates the severity of the rainfall that day and at that locale.

The storm produced small pockets of intense rain whereas the meteorological evidence extrapolates evidence from fixed positions which may or may not have been captured by the weather stations. [ 8 ] Following intense rainfall in the mid-afternoon, water rushed down from the Defendants’ uphill neighbour joined with water from the Defendants’ property and down the northern driveway for the length of the property. At the bottom of the Defendants’ property, it joined with the water coming from the area of the shop on the west perimeter of the property and on to the short pan handle driveway.

It coursed down the paved portion of the driveway and across the road and into a ditch on the west side of the public road. It quickly overwhelmed the ditch and flowed directly on to the Claimant’s property and into his home causing the damage alleged. While the Defendants had taken some steps to deal with the possibility of such an event, such as install a water diverting system across the driveway to divert water into a catchment basin, those steps were completely overwhelmed by the sheer volume of water flooding down the driveway. Issues

First: Are the Defendants liable in nuisance for the damage caused to the Claimant’s property? Second: If not, are the Defendants liable in negligence for the damage to the Claimant’s property? Third: Is the damage in question caused by

an Act of God thereby relieving the Defendants ofliability? Fourth: Has the Claimant established his damages? Discussion Are the Defendants liable in nuisance for the damage caused to the Claimant’s property? [9] It has long been the law that one property owner may not make use of his or her property in such a way as to causeunreasonable interference with his or her neighbour’s use and enjoyment of their property.

Naturally all use and ownership of propertygenerally has consequences on their neighbour’s property from slight smells such as an evening barbeque to noise from the occasionaloutdoor gathering to unfortunate interferences with sight lines or development of what was once pristine wilderness to residentialhousing. As a consequence, not every slight inference will give rise to a claim of nuisance, rather only those which unreasonablyinterfere. [10] As our Court of Appeal wrote in Royal Anne Hotel Co. Ltd v.

Village of Ashcroft (1979) (BC CA), 95 D.L.R. (3rd) 756 (B.C.C.A.): The test then is, has the Defendant’s use of this land interfered with the use and enjoyment of the plaintiff’s land and is that interferenceunreasonable?

Where, as in the case at bar, actual physical damage occurs it is not difficult to decide that the interference is in factunreasonable. (Royal Anne Hotel, para. 12) The liability of the offending property owner arises not as a result of his failure to exercise reasonable care, but simply as a result of hisor her use of the property in such a way that it caused unreasonable interference with their neighbour’s use or enjoyment of his or herproperty. [11] This analysis was more completely restated by the Supreme Court of Canada in Tock v. St.

John’s Metropolitan Board (1989)2.S.C.R.1181 (S.C.C.) where the Court writes: 15 Generically, as Salmond on the Law of Torts, 17th ed. by R.F. Heuston at p. 50 notes, “nuisances are caused by

an act oromission, whereby a person is unlawfully annoyed, prejudiced or disturbed in the enjoyment of land". The same passage makes it clearthat the nuisance may take a variety of forms ranging from actual physical damage to land to interference with the health comfort orconvenience of the owner or occupier of land. 16 The assessment whether a given interference should be characterized as a nuisance turns on the question, simple to state butdifficult to resolve, whether in the circumstances it is reasonable to deny compensation to the aggrieved party.

The courts havetraditionally approach this problem of reconciling conflicting uses of land with an eye to a standard based, in large part, on theformulation of Knight Bruce V.-C. in Walter v. Selfe (1851) 4 De G. & Sm. 315, 64 E.R. 849, and Bramwell B. in Bamford v. Turnley(1982), 3 B. & S. 66, 122 E.R. 27 at pp. 83-84 and at pp. 32-33 respectively. There it was observed that the very existence of organizedsociety depended on a generous application of the principle of “give and take, live and let live".

It was therefore appropriate to interpretas actionable nuisances only those inconveniences that materially interfere with ordinary comfort as defined according to the standardsheld by those of plane and sober tastes. In effect, the law would only intervened to shield persons in interferences to their enjoyment ofproperty that were unreasonable in the light of all the circumstances. 17 The courts are thus called upon to select among the claims for interference with property and exclude those based on thepromoting of excessive "delicacy and fastidiousness", to employ the terms of Knight Bruce V.-C.

The courts attempt to circumscribe theambit of nuisance by looking to the nature of the locality in question and asking whether the ordinary and reasonable resident of thatlocality would view the disturbance as a substantial interference with the enjoyment of land.

Among the criteria employed by the courtsin delimiting the ambit of the tort of nuisance are considerations based on the severity of the harm, the character of the neighbourhood,the utility of the Defendant’s conduct, and the question whether the plaintiff displayed abnormal sensitivity. [12] In this case the use of the Defendants’ property in question may seem passive, in the sense that the Defendants did not activelydo anything to create the damage, but the use at issue is the conversion of the natural state of the land into a lawfully constructed andmaintained residence and shop.

If the land had been left in its natural state and the flooding occurred, there would be no relief for theClaimant as there had been no artificial use of that land. [13] The next step for the court to determine is whether or not the injury suffered by the Claimant in this case is such that it wouldbe reasonable to deny him compensation. As the Supreme Court of Canada wrote in Tock (supra):

Where "material damage" is concerned, it is clear that the criteria adverted to above are to be applied with great circumspection; seeRussell Transport LTD v. Ontario Malleable Iron Co., (ON SC), [1952]4 D.L.R. 719, 1t pp. 729-30 per McRuerC.J.H.C. in the presence of actual physical damage to property the courts of been quick to conclude that the interference does indeedconstitute a substantial and unreasonable interference with the enjoyment of property. As put by Westbury L.C. in St. Helen’s SmeltingCo. v.

Tipping, supra at pp.650-651: …the submission which is required from persons living in society to that amount of discomfort which may be necessary for thelegitimate and free exercise of the trade of their neighbours, would not apply to circumstances, the immediate result of which is sensibleinjury to the value of the property. On the basis of the foregoing considerations, I conclude that the escape of water at issue here would clearly constitute a compensablenuisance were this a case of posing to private individuals.

The court went on to confirm the analysis of our Court of Appeal in Royal Anne Hotel Co. (supra) above. [14] Both the Tock and Royal Ann Hotel Co. decisions involve Claimants seeking compensation for damage caused by waterescaping from the Defendant’s property on to the Claimant’s property.

In my view, both those cases stand for the proposition thatphysical damage caused to property as a result of water escaping from adjoining property is compensable. [15] Furthermore, I am satisfied that the damage in the case at bar was caused by the development of the property and thecompaction of the soils as a result of the development. In the Westrek Report the author writes: Runoff is generated when the rainfall rate exceeds the rate at which the water can infiltrate into the soil. We understand the underlyingsoils in this area are generally sandy and gravelly, with some silt [i.e. finds].

The permeameter test results for the soils on 5353 Spalding Road, provided to interior health by Mike McCreight [November 19, 2008]and Brent Cairns AScT [date unknown] indicate the following: - There was 18” of topsoil overlaying 8.5’ of gravel the infiltration rate range from 70 to 140 mm in one hour [the McCreight readings]. - There was 18” to 2’ of topsoil in the two test holes, on top of the 3 to 3.5 feet of gravel. The infiltration rates range from 126 232 mm/h[Cairns readings].

Based on the measured rates, the underlying soils on this property should have been more than capable of allowing the rainfall thatoccurred on June 3, 2014 to infiltrate and not generate runoff. Little or no infiltration can occur however on unpaved or compacted surfaces such as driveways or cleared areas affected by repeatedvehicle loading. Based on the 2013 orthophoto, approximately 35% [a conservative estimate that does not include the cleared land in thecentral portion of this image] of the land this property meets this criteria.

If the two buildings shown on this image are included, itincreases to almost 40%. [16] I have carefully reviewed those same orthophotos and find that the facts forming the basis of the author’s opinion regardingchanges to the topography of the Defendants’ land are established. It is also apparent from the evidence that the conclusion with respectto the compaction of the land are made out.

I also accept the evidence of the Defendants that a small portion of the land found in thecenter of the photograph which appears to have been compacted was indeed not compacted, however, in my view this does not materiallychange or affect the findings of the expert report. [17] The Defendants respond to the claim and say that they complied with all zoning and building by-laws and requirements. TheDefendants had a building permit and all construction and development was compliant with the zoning for that area.

The constructionwas inspected as required by the relevant municipal authorities and approved for their occupancy and use. They argue that because allthe relevant approvals were obtained that they should be free from liability in nuisance. I do not agree. [18] The evidence establishes that the municipal approvals required for the construction on the Defendants’ property did not takeinto consideration drainage or water flow. Furthermore I am aware of no authority which stands for the proposition that state regulationwill relieve a party of liability in nuisance.

Indeed both the Toth and Royal Ann Hotel Co. found that municipalities acting under theauthority granted to them by statute were not immune from liability in nuisance. It can hardly be argued that a private citizen closedwith a factually irrelevant building permit would enjoy such immunity. [19] The Defendants further argue in answer to the claim either in nuisance or negligence they were not aware of the risk posed bytheir use and development of their property. In particular they rely on the judgment in Theberge v.

Zittlau 2000 BCPC 225 ,2000 B.C.P.C. 0225 that liability for damages in nuisance are limited to those nuisances for which the land owner has specificknowledge. In that case a mudslide from the Defendant’s property onto the Claimant’s property had caused significant damage to theClaimant’s property. Upon investigation it was determined that one of the potential sources of that mudslide was water leaking from anunderground pipe immediately above the source of the mudslide. The court found that the Defendants in that case were unaware of theexistence of that leaking pipe or when it had been installed.

As a result the court did not find them liable in nuisance for the damagescaused by the mudslide because they were unaware of that risk. [20] The Theberge v. Zittau, (Id.)analysis is derived from the analysis in Kraps v. Paradise Canyon Holdings Ltd. [1989] B.C.J. No.79: In Kraps v. Paradise Canyon Holdings Ltd. (BC SC), [1998] B.C.J. No. 79 the Court of Appeal [sic.] cite with apparent approval the observation of Prof.

Lewis Clark in his text, Tort Law (2nd Ed) (Toronto, Carswell, 1996) that: the liability of a person who occupies property on which a nuisance, or a potential nuisance, which was created by a previous owner,

trespasser,

an act of nature, or a latent defect in the property, is discovered, is essentially a matter not of strict liability, but of negligence law.… An occupier of land has a duty only to take reasonable steps to abate a nuisance, or a potential nuisance, discovered on the occupied land, where the occupier did not create the nuisance or continue it by use. Liability is predicated on actual or constructive knowledge of the hazardous condition and the occupiers lack of reasonable care in responding to it. This analysis is clearly distinguishable from the case at bar.

In this case, the nuisance was not latent or unknown, but rather was created by the Defendants’ development of the land. I find that the analysis in Theberge v. Zittau does not apply in the circumstances. Are the Defendants liable in negligence for the damage to the Claimant’s property? [ 21 ] The Defendants testified that they purchased the property in question in 2007 with an intention to build a new house and shop on it. They obtained all necessary approvals and building permits and commenced construction in 2009.

They constructed a home and shop consistent with the appropriate zoning bylaws and on March 1, 2011 received an occupancy permit. They have resided in the home ever since. [ 22 ] By the spring of 2013 it was apparent to the Defendants of the manner in which they constructed their property was causing significant problems with runoff onto the roadway below their property.

In particular they received a letter from their downhill neighbour across the common road dated March 27, 2013 which outlined in some detail the extent of the run-off problems created by their development. [ 23 ] In response to that stated concern the Defendants called upon the Department of Transportation for assistance in developing a solution to the runoff problem. They were advised by the Department of Transportation that it was the Defendants’ responsibility to ensure that water did not run off their driveway and onto the public road.

In conjunction with the Department of Transportation, they constructed a small asphalt swale or berm at the foot of their driveway which was designed to direct water across the driveway and into a catchment basin which was constructed by the Ministry of Transportation on public lands. [ 24 ] That remedial work appeared to be satisfactory until the complete failure in June 2014 which led to the damages in the case at bar. On the date in question in June 2014 there is no doubt that the Defendants’ property and the area generally were inundated with a very heavy rainfall.

That rainfall could no longer be absorbed into the natural ground and instead ran violently down the driveway carrying with it enormous amounts of silt and soil. This silt and soil overwhelmed the swale or berm and completely plugged the catchment basin which had been installed. Thereafter the water ran directly across the road, into a ditch filling the ditch to the top.

When the water overflowed the ditch, it ran down the Claimant’s driveway flooding his home. [ 25 ] Given the information available to the Defendants by June 2014, it was entirely foreseeable that their improvements to their property could cause flooding and wastewater runoff across their public road and onto the neighbour's property. It is fundamental that every neighbour owes a duty of care to their neighbours to take reasonable steps to alleviate foreseeable risks.

I am not satisfied on the evidence that the steps taken by the Defendants were reasonable in the circumstances. [ 26 ] There is no question that the amount of rainfall which fell on the Defendants’ property and the uphill property from the Defendants’ property was heavy. It was, however, not inordinately so.

Indeed the evidence established that the rainfall which fell on that area is the sort of rainfall one might expect every 5 to 10 years. [ 27 ] There was some evidence to suggest that some portion of this flooding might well have been caused by the introduction of excess runoff water from the Defendants’ uphill neighbour. The Defendants’ uphill neighbour had also done extensive landscaping and construction work on their property which might possibly have directed runoff water onto the Defendants’ property.

There may well be a cause of action in either nuisance or negligence against that uphill neighbour but as they are not a party to this litigation, in my view, any contribution they may have had to the events of June 3, 2014 are not for this court's consideration. [ 28 ] Finally, the Defendants argue that if they are responsible in negligence, then the Claimant shares some of that responsibility as a result of filling in the ditch or alternately not cleaning out the ditch that they must have known was previously in existence in front of their property which would have carried away any excess water.

It is apparent from the evidence that the ditch which overflowed allowing water to run into the Claimant’s home had originally been built to continue along the front of the Claimant’s property to carry any drainage water away. I accept that this fact was not known to the Claimant. Following the events which led to this incident, that ditch was re-dug and extended past all of the houses on that road and out to a farmer's field where the water dissipates. The original ditch had been filled in prior to the occupancy of the Claimant.

There is no evidence to find that the Claimant knew or ought to have known that a ditch had been improperly filled in. This is evident because underneath the Claimant’s driveway is evidence of a conduit which clearly would have linked the ditch from one side of the driveway to the other. It may well have been that the conduit under the driveway led to a large or sufficient rubble catchment basis or away by some other means on the other side of their driveway.

Furthermore, I am not satisfied that even if this ditch had not been filled in that it would have made a material difference in the amount of damage caused to the Claimant’s property. [ 29 ] The evidence shows that the amount of water running across the road and into the ditch was extraordinary. While a second path for the water to travel might have carried away some of this excess flooding, I am not satisfied that it would have carried away so much of the excess water that the ditch would have not been overwhelmed.

Is the damage in question caused by an Act of God therefore relieving the Defendants of liability? [ 30 ] It has long been established that no person is responsible for that which the law defines to be an Act of God . In order to take advantage of this defence, the burden clearly rests on the Defendants to establish that the events which caused the damage to the Claimant were of such an extraordinary nature that they could not reasonably have been foreseen. As is often quoted from Lord Finlay L.C. in Greenock Corp. v. Caledonia R.

Co. , [1917] A.C. 556 at 572 : In my opinion the appellants have entirely failed to establish any defense on this ground. It is true that the flood was an extraordinary

violence, but floods of extraordinary violence must be anticipated as likely to take place from time to time. It is the duty of any one whointerferes with the course of a stream to see that the works for which he substitutes for the channel provided by nature are adequate tocarry off the water brought down even by extraordinary rainfall, and if damage results from the deficiency of the substitute which he hasprovided for the natural channel he will be liable.

Such damage is not in the nature of damnum fatale, but is the direct result of theobstruction of a natural watercourse by the defenders works followed by heavy rain. Greenock p. 572 And again in that same case Lord Wrenbury writes: The responsibility to provide a substituted channel is not limited to providing a channel sufficient to meet all demands that mightreasonably be anticipated, or even all demands [in excess of the ordinary] short of the act of God. The corporation must provide asubstituted channel which will be equally efficient happen what will. Assuming

an act of God, such as flood, wholly unprecedented, thedamage in such a case results not from the act of God, but from the act of man in that he failed to provide [as it was before] a channelsufficient to meet the contingency of the act of God. But for the act of man that would have been no damage from the act of God. Greenock pp.583-84 [31] The best evidence on whether or not the heavy rainfall of June 3, 2014 were such that it would be properly characterized as anAct of God is found again in the Westrek Report. In his report Mr. Smith P.

Geo, Eng.L., Engineering Geologist writes: [The plaintiff] has indicated that the heavy rainfall associated with the event occurred on June 3, 2014 sometime between 3 to 4:30 PM. Environment Canada's data generally supports this, with 10.9 mm of rainfall recorded between 3:15 to 4:45 PM, and 10.5 mm recordedbetween 330 to 4:15 PM the total record for June 3 was 12 mm.

The return period for the rainfall [using environment Canada's short rainfall intensity – duration – frequency data] during the event is asfollows: • between 2 to 5 years for the 15 minute rainfall • about five year (sic)for the 30 minute and 1 hour rainfall • about two-year (sic) for the two hour rainfall [32] While it is probable that the rainfall was more intense that indicated in the Westrek Report at this particular location, there wascertainly no evidence to suggest that the amount of rainfall in this location on June 3, 2014 was so much more that it would constituteanything like a 100 year event let alone a 1000 year event.

See R. v. B.C. Hydro and Power Authority (1997) (BCSC), B.C.J. No.1744 @ Para 69. [33] The defence of Act of God is not established in this case. Has the Claimant established his damages? [34] The Defendants argue that the Claimant has not established his damages. He goes further to argue that the quantum of damagesclaimed is excessive and ought not to be compensated because he has significantly increased the value of his home as a result of theserepairs. He further argues that the wages claimed by the Claimant for the work done on his own behalf are excessive.

I do not agreewith any of these propositions. [35] The law is quite clear the damages will be reduced when the result of those damages are that the value of the damaged propertyhas been improved as a result. Laichkwiltach Enterprises Ltd. v. F/V Pacific Faith (Ship), 2009 BCCA 157 , 2009B.C.C.A.157. The Defendants bear the onus to prove that betterment. Madelena v. Kuun

(2009) B.C.S.C. 1597 @ para 44. TheDefendants have not met that onus. I am not satisfied on the balance of probabilities that the repair work affected on the Defendants’home made any appreciable improvement to the home’s value. [36] On the question of whether or not the quantum of damages is reasonable in the circumstances, having carefully reviewed thereceipts and detailed accountings, I am satisfied that the Claimant has made out his claim. Without considering labour costs, the receiptsestablish expenses of $20,574.71.

It is true that a very small portion of the expenses were not actually attributable to the flood and areduction of damages might be appropriate in this case after factoring in a reasonable price for labour which the Claimant carried out onhis own, the claim is so far in excess of the jurisdictional limit of the court that it is of no moment. [37] I agree with the Claimant that the law is clear that a person is entitled to be compensated for their labours if, rather than chooseto retain professional services to repair damages, they do that work themselves.

In this regard I adopt the analysis of the Ontario Court ofAppeal in Law v. Upton Lathing Ltd. But, I believe it to be obvious also that, when the word "cost" is used in these cases it is not in any way deemed to necessarily signify theexact amount of money actually expended by the owner in repairing the damages.

The owner might be extremely improvident and paymuch more than the work is actually worth, in which case the tort feasor should not be penalized for this improvidence, or, alternately, asin the present case, the owner might, because others wish to do him a personal favour or for other reasons, obtain work or materialsgratuitously in order to reduce the price. These favours are not for the benefit of the wrongdoer and I see no reason why the damageswhich he would otherwise be obliged to pay should be reduced thereby

Law @ para 15. affirmed at

(1971) O.J. No. 1745 (Ont. C.A.) [ 38 ] All of the disbursements and labour claimed by the Claimant are reasonable in the circumstances. There is no evidence of betterment and any errors or over calculations of damages are those which are in excess of the jurisdictional limit of the court. Order [ 39 ] There will be judgment in favour of the Claimant in the amount of $25,000. plus costs in the amount of $156. for filing plus $40.for service fees for a total judgment in the amount of $25,196. [ 40 ] The Claimant is at liberty to seek such further costs as may be appropriate given the finding of the court.

Either party is at liberty to make further submissions with respect to costs in the event that offers to settle have been filed. _______________________________________ The Honourable Judge McKimm