Daniel John Stoneman v. Debra Monica Stoneman, 2016 BCSC 1960

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Stoneman v. Denman Island Local Trust Committee, 2016 BCSC 1960 Date: 20161026 Docket: S77929 Registry: Nanaimo Between: Daniel John Stoneman and Debra Monica Stoneman Plaintiffs And Denman Island Local Trust Committee, and The Island Trust Defendants Before: The Honourable Mr. Justice Butler Reasons for Judgment Re: Costs The Plaintiffs: Appearing In Person Counsel for the Defendants: S. Frost F.

Marzari Written Submissions of the Defendants dated: August 8, 2016 Written Submissions of the Plaintiffs received: August 17, 2016 Written Reply Submissions of the Defendants dated: September 15, 2016 Place and Date of Judgment: Nanaimo, B.C. October 26, 2016 Introduction [ 1 ] Following the hearing of the application of the plaintiffs, Daniel and Debra Stoneman, seeking an order that the defendants, Denman Island Local Trust Committee and The Islands Trust be found in contempt, I dismissed the application and awarded costs to the defendants.

I found that there was no basis for the plaintiffs’ contempt application. I requested written submissions from both parties as to the appropriate scale of costs. [ 2 ] For the reasons that follow, I award the defendants their costs at Scale C with an increased unit value of 1.5 pursuant to s. 2(5) of Appendix B of the Supreme Court Civil Rules . Background [ 3 ] The plaintiffs’ application was unusual because it was founded on orders made in other legal proceedings, none of which required the defendants to take or refrain from taking any particular action.

Even if the orders had been made in this proceeding, they could not support a finding of contempt against the defendants. I concluded that the plaintiffs’ application was without any basis in law or fact. [ 4 ] The plaintiffs’ oral submissions, by which they attempted to provide a foundation to support their contempt application, took over half a day. The submissions covered a great deal of material and were largely based on Mr. Stoneman’s own

interpretation of various documents, including bylaws, affidavits, court orders, and reasons for judgment. His submissions also focused on a series of events that has taken place over the past ten years. The submissions were a re-statement of Mr. Stoneman’s opinions about the facts and law relating to the dispute. [ 5 ] The contempt application had no substance.

I found that the application failed on the first stage of the analysis: the plaintiffs were not able to point to any provision of a court order that the defendants had breached. [ 6 ] Despite the lack of merit to the plaintiffs’ application, the defendants had to expend the time and resources necessary to respond. They were, of course, successful and are entitled to an award of costs.

Scale of Costs Position of the Defendants [ 7 ] The defendants submit that while the conduct of the plaintiffs in this case is sufficient to support an award of special costs, they are only seeking an award of costs at Scale C, with an increased unit value by way of the uplift under s. 2(5) of Appendix B of the Supreme Court Civil Rules .

In making this argument, the defendants say that the plaintiffs’ conduct caused the application to be of more than ordinary difficulty and justifies an award of costs at Scale C. [ 8 ] In support of an award at Scale C, the defendants rely on a costs ruling made in proceedings involving the defendants and the plaintiffs’ neighbour: Ellis v. Denman Island Local Trust Committee , 2015 BCSC 1753 . In that case, Madam Justice Young awarded costs at Scale C based on the increased work to which the respondents were put by the conduct of the applicant, Mr. Ellis. The court found at para. 136, that Mr.

Ellis: … rehashed issues that have already been resolved repeatedly in court. He also has a poor grasp of relevance and has used the scattergun approach to his submissions making them difficult and very labour intensive to sift through. [ 9 ] The defendants submit that, in these proceedings, the plaintiffs have also made their application based on legal arguments and issues that are res judicata. As in Ellis , this caused greater than ordinary difficulty to the defendants in responding to the application. Position of the Plaintiffs [ 10 ] In response to my direction, the plaintiffs provided written submissions.

However, those submissions were directed almost entirely at re-arguing the substance of the applications before the Court, rather than the issue of costs. To the extent that they touched on costs, the plaintiffs say that the defendants “failed to comply with the injunctive the court granted and a legal obligation to regulate development within 50 metres of the bluff…”. In these circumstances, they say an “award of costs in the contempt action is unfair or unjust.” The submission concludes with this statement touching on costs: 15.

Here the sound sense, the common sense, clearly established by the courts is permit regulation to protect development, not permit enforcement to prohibit development. Common sense dictates the Court deny the Defendants’ application and reduce or, in quid pro quo, offset costs awarded in the contempt application. Analysis [ 11 ] In Appendix B, s. 2(2) of the Rules , Scale C is for “matters of more than ordinary difficulty”.

As explained in Ellis , a finding that an application was based on irrelevant arguments and a rehashing of issues which had already been finally determined can support an award for costs at Scale C. Mr. Stoneman spent considerable time and referred to a large volume of material in an attempt to demonstrate the basis for his position. His approach to the case added to the difficulty the defendants faced in responding to the application.

His reference to aspects of orders made in three separate proceedings made it more difficult for the defendants to respond, as they were required to review a long history of events and legal proceedings. There is no doubt that the defendants were required to spend a considerable amount of time and effort to go through the Stonemans’ application and craft an appropriate response. [ 12 ] An award at Scale C recognizes the difficulty the defendants were put to by the positions taken by the plaintiffs in this application. An award of costs at Scale C to the defendants is appropriate in these circumstances.

Increased Costs under s. 2(5) of Appendix B Submissions of the Parties [ 13 ] The defendants submit that this case is one that merits an increase in costs to 1.5 times the value that would normally apply to each unit allowed for the proceeding. The applicable provision of the Rules reads:

(5) If, after it fixes the scale of costs applicable to a proceeding under subsection (1) or (4), the court finds that, as a result of unusual circumstances, an award of costs on that scale would be grossly inadequate or unjust, the court may order that the value for each unit allowed for that proceeding, or for any step in that proceeding, be 1.5 times the value that would otherwise apply to a unit in that scale under section 3 (1). [ 14 ] Factors that can establish the unusual circumstances necessary to justify increased costs include: misconduct by the unsuccessful party in the litigation, the serious nature of the allegations, the complexity or difficulty of the issues in the litigation, and the importance of the litigation to the parties or to the development of the law: Bronson v.

Hewitt , 2011 BCSC 102 at para. 158 , citing with approval 380876 British Columbia Ltd. v. Ron Perrick Law Corp. , 2009 BCSC 1209 . [ 15 ] The defendants further argue that they should not be deprived of appropriate compensation for the extra time and effort expended in responding to the application solely because the plaintiffs were self-represented: Brown v. Boyar , 2009 BCSC 1603 at para. 15 . [ 16 ] The defendants submit that increased costs are appropriate for several reasons.

The plaintiffs were unable to point to any facts supporting a finding that the defendants were in breach of a court order, and they repeated arguments regarding facts and issues that were

decided against the plaintiffs in previous court proceedings. The defendants also say that in order to properly respond to the application,they had to review with the court the extensive judicial history of this action and the related proceedings. They could not permit theserious allegations of wrongdoing made against them to pass without a response. Additionally, the defendants say the application was acollateral attack on previous decisions and orders of this Court and of the Court of Appeal. [17] The plaintiffs did not provide any submissions in response to these arguments.

Their only submissions on costs were thosedescribed in paragraph 10 of these reasons. Analysis [18] As set out in Bronson at para. 158, the factors which may constitute unusual circumstances and justify increased costs unders. 2(5) include the following: (

a) misconduct by the unsuccessful party in the litigation; (

b) the serious nature of the allegations; (

c) the complexity or difficulty of the issues in the litigation; and (

d) the importance of the litigation to the parties or to the development of the law. [19] The plaintiffs’ conduct in this application meets the test for an award of increased costs; in the unusual circumstances of thiscase, an award at Scale C would be grossly inadequate or unjust. Indeed, the plaintiffs’ conduct is a textbook example of conduct whichdeserves some sort of rebuke, even though it may fall short of what merits an award of special costs: Luu v. Wang, 2012 BCSC 626 atparas. 65 and 66.

Without any basis, the plaintiffs alleged that the defendants acted in bad faith, made false representations to the court toobtain judgments, and that they knowingly and wilfully breached court orders. Given the history of this litigation, these seriousallegations are deserving of rebuke. [20] Additionally, it is clear that the majority of the issues in this proceeding were res judicata. The defendants and their counselwere forced to revisit ancient history between the parties and repeat previous, successful submissions.

The defendants were put to effortthat was a complete waste of time, caused entirely by the plaintiffs’ conduct. In these circumstances, an award of uplift costs unders. 2(5) is appropriate. [21] In making this order, I note that increased costs are not intended as punishment to the offending party: Bajwa v. BritishColumbia Veterinary Medical Assoc., 2008 BCSC 905, citing National Hockey League v. Pepsi-Cola Canada Ltd. (1995), (BC CA), 2 B.C.L.R. (3d) 13 (C.A.).

The increase in costs is to remedy the time and effort required to respond to the misconduct inthe litigation (Bajwa at para. 75): [75] In National Hockey League, Wood J.A. stated… that: … [32] Misconduct may lead either to an award of increased costs or, where increased costs would in any event be appropriate, to anaward amounting to a higher proportion of special costs than would otherwise have been the case. In neither case is the result intended topunish the offending party.

Punishment is a primary function of the discretion to award special costs, a discretion which may only beexercised when the conduct in question can properly be regarded as at least reprehensible. Increased party and party costs are intended asan indemnity: [citation omitted]. [Emphasis in original.] [22] In this case, granting increased costs to 1.5 times the unit value will properly compensate the defendants for the expense theyhave been put to in defending themselves against the plaintiffs’ meritless, but very serious, allegations.

Disposition [23] For the above reasons, costs are awarded to the defendants at Scale C with an increase to 1.5 times the value for each unit. “Butler J.”