Deacon v. Barron

2009 BCSC 637 Deacon v. Barron IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Deacon v. Barron, 2009 BCSC 637 Date: 20090330 Docket: 37797 Registry: Kamloops Between: Allan Hunter Deacon and Jana Marie Deacon Plaintiffs And: William Barron and Dorothy Margaret Barron Defendants And: Beverly Corbet Third Party Before: The Honourable Mr. Justice Brooke Oral Reasons for Judgment March 30, 2009 Counsel for the Plaintiffs: D.A. Paulsen Counsel for the Defendants: K.N. Schymon For the Third Party: No appearance Place of Hearing: Kamloops, B.C. [1] THE COURT: The plaintiff's action for specific performance of a contract for the sale of land was successful and an order made accordingly. The plaintiff now seeks single costs of the action to the date of his offer and double costs thereafter. Rule 37B of the Rules of Court applies. The offer to settle upon which the plaintiff relies is less than $1,000 more than the purchase price provided by the contract which itself contains an adjustment to reflect any increase in the cost of living. The previous Rule admitted little if any discretion. The present Rule enables the court to consider the following, and here I read from 37B(6): In making an order under subrule (5), the court may consider the following: (a) whether the offer to settle was one that ought reasonably to have been accepted, either on the date that the offer to settle was delivered 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; [and] (d) any other factor the court considers appropriate. [2] The plaintiff says that the offer ought to have been accepted and that the final judgment and the offer are essentially the same. The defendant largely relies upon 37B(6), the relative financial position of the parties. I am satisfied that the court is accorded a discretion and may order single costs to the successful party rather than double costs. Here, I refer to the reasons of Mr. Justice Butler in Arnold v. Cartwright Estate, 2008 BCSC 1575, and the reasons of Madam Justice Martinson in Leus v. Laidman, 2008 BCSC 1819. In Leus v. Laidman, the unsuccessful plaintiff had sought an order that each party bear their own costs. [3] Here, the unsuccessful defendant seeks an order for single costs against her rather than the double costs the plaintiff seeks and relies upon the defendant's strained financial circumstances as well as the substance of the offer being little more than what the defendant was entitled to if the contract was valid. It was the validity of the contract that was placed in issue by the defendant. The defendants are elderly and retired. Mr. Barron, who I mistakenly described in my reasons as deceased, in fact, has been incapacitated, sadly, by Alzheimer's disease. I am satisfied that the defendant's financial resources are modest. Indeed, the money to acquire alternative accommodation was borrowed. [4] While I have no evidence of the financial resources of the plaintiff, he owns real property in addition to the property, the subject of this action, and he is in business as the operator of a licensed pub. I accept his financial resources are better than the defendant's and that he, of course, is considerably younger and with brighter economic prospects, which always favour youth over age. I am also satisfied that the defendant's position, although ultimately unsuccessful, was not entirely devoid of merit in the sense of raising an arguable case and that the facts themselves supported a dispute. It is to be remembered that as Madam Justice Martinson said at paragraph 63 of Leus: the purpose of Rule 37B is to encourage settlement and avoid frivolous use of court resources by imposing punitive cost sanctions. [5] While I cannot say in view of the result that the offer was unreasonable, I do find that the successful plaintiff should only be entitled to single costs throughout. In reaching this conclusion, I rely upon the fact that the subject property has increased significantly in value over the increase in the cost of living which was the index which provided for an increase in the purchase price. I find, too, that there was no substantial incentive offered by the defendant to support settlement and that the defendant's financial circumstances were and are such that a motive of necessity rather than greed can be seen as the likely spur to the defence of the plaintiff's claim. While, with benefit of hindsight, the offer should have been accepted, there was no incentive to her which would have made the refusal of the offer unreasonable. It was an all or nothing scenario. [6] Accordingly, the plaintiff is entitled to costs throughout at Scale B. Brooke J.