BC Finance Transportation Financing Authority v. Long

2011 BCSC 1773 BC Finance Transportation Financing Authority v. Long

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: BC Finance Transportation Financing Authority v. Long, 2011 BCSC 1773 Date: 20111223 Docket: 092968 Registry: Victoria Between: BC Finance Transportation Financing Authority Plaintiff And Robert Arni Long and Sherry Lynn Long Defendants Before: The Honourable Mr. Justice Bowden Ruling re: Costs Counsel for the Province of British Columbia: A.K. Fraser Counsel for the Defendants: A.L. Faulkner-Killam Place and Date of Trial/Hearing: Victoria, B.C. September 23, 2011 Place and Date of Judgment: Victoria, B.C. December 23, 2011 [1] The plaintiff sold a portion of a closed road, which was adjacent to the defendants' property, to the defendants. Situated on the purchased land were hydro poles which supported hydro and telephone lines. [2] Due to an oversight by a representative of the plaintiff, a right of way was not reserved on the title for the poles and lines. As a result, the defendants acquired clear title to the portion of the roadway purchased by them. [3] The plaintiff sought rescission of the agreement regarding the sale of the property so that it could preserve a right of way for the poles and lines. When it became clear to the defendants that a right of way would be re-established by the plaintiff, even if that required the expropriation of the property, they were not interested in keeping the property but wished to be

compensated for the cost of the property and other related expenses. [4] Following submissions by both counsel on September 23, 2011, this Court ordered that the agreement be rescinded and the property be transferred back to the plaintiff and the plaintiff pay the amount of $8,942 plus interest to the defendants. [5] Counsel provided written submissions to the Court regarding costs and this is my ruling thereon. [6] In these proceedings the plaintiff sought rescission of the agreement based on the admitted mistake of one of its representatives who overlooked the need for a right of way. The defendants did not oppose transferring the property back to the plaintiff and in their counterclaim sought rescission and consequential damages. The plaintiff opposed the payment of any consequential damages, such as legal expenses, except the payment of nominal interest on the purchase price. [7] At the hearing of this matter, both counsel agreed that rescission was the practical solution and the only dispute related to the payment of consequential damages. [8] By letter dated August 18, 2011, the defendants offered to settle the claim by the plaintiff by rededicating the land as road to the plaintiff if they were paid $14,000 plus taxable costs and disbursements by the plaintiff. [9] I accept the defendants' calculation of the amount payable by the plaintiff as a result of my order on

September 23, 2011, which will be in excess of $14,000. [10] I am also of the view that the defendants were substantially successful in these proceedings because it was clear that they did not oppose rescission provided they were compensated for their consequential losses. [11] The plaintiff argues that the defendants did not give any explanation as to why they allowed the transaction to complete without requiring removal of the lines and suggests that the defendants would have had some knowledge of the need for an easement on the property when they acquired it. In my view this gets back into the merits of the action which I have already decided and does not assist the plaintiff in relation to its claim that each party should bear its own costs. [12] I have concluded that the defendants are entitled to costs on Scale B until August 18, 2011, and thereafter double costs of the application heard on September 23, 2011. "Bowden J."