Jones v. Bank of Montreal

2002BCSC0181 Citation: Jones v. Bank of Montreal et al. Date: 20020205 2002 BCSC 181 Docket: S-7555 Registry: Duncan IN THE SUPREME COURT OF BRITISH COLUMBIA BETWEEN: DWIGHT GILBERT JONES AND MARSHA OLENKA JONES PLAINTIFFS AND: BANK OF MONTREAL AND BANK OF MONTREAL MORTGAGE CORPORATION DEFENDANTS No. C995010 Vancouver Registry BETWEEN: THE TORONTO-DOMINION BANK PLAINTIFF AND: DWIGHT GILBERT JONES, MARSHA OLENKA JONES AND ITI IMAGEN TECHNOLOGIES DEFENDANTS REASONS FOR JUDGMENT OF THE HONOURABLE MADAM JUSTICE SATANOVE Counsel for The Jones and ITI Imagen Technologies Inc. Appearing in Person Counsel for The Toronto-Dominion Bank and Bank of Montreal James L. Carpick Kimberley H. Beck Date and Place of Trial: August 27-30, 2001 Written Submissions Received: Victoria, BC October 23, 2001 October 31, 2001 [1] On September 14, 2001, I dismissed both these actions that were heard together. I invited written submissions on costs. [2] Ordinarily, the Jones would be entitled to the costs of Action No.C995010, and the Bank of Montreal and Bank of Montreal Mortgage Corporation (collectively "BMO") would be entitled to the costs of Action No. S-7555. These costs probably would have come close to setting each other off. [3] The Jones submitted that each party should bear their own costs in each action. BMO applied for special and alternatively, increased costs based on findings in my Reasons for Judgment. I expressed a concern about the conduct of the Jones throughout the events leading up to this litigation and during the course of it. In my Reasons for Judgment I found: 1. The conspiracy plea had no basis; 2. The Jones' argument about repudiation of the Code Agreement was fallacious; 3. The law was clear that the Jones were not entitled to the immediate return of the GIC funds; 4. The Jones were estopped from asserting that the injunction did not apply to the GIC as they never complained about this before trial; 5. The evidence was sadly lacking in all aspects of damages; and 6. The Jones were arrogant and high-handed in their conduct towards both banks. [4] I have considered this application for some time and while there is some merit to BMO's submissions, I have decided to exercise my discretion against ordering special costs. [5] I have decided to overlook the Jones' conduct because of the highly emotional state in which they found themselves. At trial they were lay litigants without the benefit of legal advice to cool their passions or properly present their case. In refusing to award special or increased costs, I do not condone their behaviour or suggest lay litigants are entitled to different treatment because they are not legally trained or officers of the court. I am simply recognizing the stresses this litigation has caused the Jones as the likely reason for their conduct. [6] The Jones are still entitled to their costs for Action No. C995010 and BMO is entitled to the costs of No. S-7555. On April 5, 2000 BMO made a formal offer to settle in Action No. S-7555 for $1 plus costs. As that is more than the Jones received from me, BMO is entitled to double costs from April 5, 2000 to the date of judgment. Costs in both actions are to be assessed on Scale 4 to reflect the complexity of this commercial litigation. [7] As success is divided on this costs application, each party shall bear their own costs of this application. "D.A. Satanove, J." The Honourable Madam Justice D.A. Satanove These Reasons for Judgment were released from the Duncan Registry on February 5, 2002 and are date stamped accordingly.