Gadsby v. British Columbia (Attorney General)

2021 BCCA 388 Gadsby v. British Columbia (Attorney General)

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Gadsby v. British Columbia (Attorney General), 2021 BCCA 388 Date: 20211015 Docket: CA46339 Between: Joan Elizabeth Gadsby (Gadsby) and Seaview Villa Estates Ltd. (Seaview) Appellants (Plaintiffs) And Her Majesty the Queen in Right of the Province of British Columbia/ BC Ministry of the Attorney General (BCAG), Cove Mortgage Ltd./ CMIC Mortgage Investment Corp. (Cove/CMIC), Andrew Bury, Lawyer, Gowling WLG (Bury), Landquest Realty Corp. (Landquest), Richard Osborne, President, Landquest Realty Corp. (Osborne), Jason Zroback, Selling Realtor, Landquest Realty Corp. (Zroback) Ken Tiderleigh, Agent for Buyer (Tiderleigh) (Deceased), Crown Point Developments, The Strongman Group (Strongman Group), Gerry Strongman (Gerry), Marc Strongman, Buyer (Marc) 1042635 B.C. Ltd. Respondents (Defendants) Before: The Honourable Madam Justice Fenlon (In Chambers) Supplementary Reasons to Gadsby v. British Columbia (Attorney General), 2021 BCCA 354, Vancouver Docket CA46339. Appearing in person, and on behalf of the Appellant, Seaview Villa Estates Ltd.: J.E. Gadsby Counsel for the Respondents, Andrew Bury and Gowling WLG: V.G. Critchley Counsel for the Respondents, Cove Mortgage Ltd. and CMIC Mortgage Investment Corp.: A. Pearson Counsel for the Respondents, Richard Osborne, Landquest Realty Corp., and Jason Zroback: D.J. Marks Place and Date of

Hearing: Vancouver, British Columbia September 10, 2021 Place and Date of Judgment: Vancouver, British Columbia September 10, 2021 Written Submissions on Costs Received: September 13, 24, 2021 Date of Supplementary Judgment: October 15, 2021 Supplementary Reasons by: The Honourable Madam Justice Fenlon Summary: Following the dismissal of the appellants' application to reinstate an appeal, the parties filed written submissions as to costs. Each of the three groups of respondents sought a $1,000 lump sum costs award. The appellants submitted that it would not be fair to make a costs order against them, based on allegations that respondents' counsel acted unreasonably, that the self-represented appellant incurred her own costs in bringing her application, and the difficulties the self-represented appellant had experienced. Held: Lump sum costs of $1,000 awarded to each of the three groups of respondents. There was no reason to depart from the general rule that the costs of an appeal or application are awarded to the successful party. Supplementary Reasons for Judgment of the Honourable Madam Justice Fenlon: Introduction [1] In reasons indexed at 2021 BCCA 354, I denied Ms. Gadsby's application to reinstate her appeal against three groups of respondents referred to as the "Cove respondents," the "Bury respondents" and the "Landquest respondents." These supplemental reasons address costs of that application. Each of the three groups of respondents seeks a lump sum award of costs of $1,000. [2] The usual rule is that the successful party on an appeal or application in the appeal is entitled to costs: section 23 of the Court of Appeal Act, R.S.B.C. 1996, c.

77. Ms. Gadsby, who appeared on her own behalf and on behalf of the appellant Seaview Villa Estates Ltd., submits that the usual rule should not be applied in this case. First, she says that the lawyers for the three groups of respondents acted unreasonably in refusing to consent to removal of her appeal from the inactive list. I do not agree with that characterization of the respondents' decision to oppose the application. By definition, an application to reactivate or reinstate is only required when the appellant has failed to comply with the prescribed time limits for prosecuting their appeal. [3] Second, Ms. Gadsby says that it would not be fair to make her pay the respondents' costs when she has incurred her own costs of $1,500, including time away from her professional consulting services and disbursements for formatting, printing, binding, filing and serving comprehensive legal documents in support of her application. I would not accede to this submission. Ms. Gadsby has been pursuing remedies in the courts for many years. She is aware that costs are incurred by both sides in prosecuting or defending a proceeding, and that the successful party is entitled to costs. Indeed, Ms. Gadsby sought costs against the respondents in the event that she was successful on her application. [4] Third, Ms. Gadsby says that she should not have to pay costs because of "the hell" she has

endured since her properties went into foreclosure. The Court is not unsympathetic to the significant personal and financial difficulties Ms. Gadsby has experienced as a result of the loss of her home and real estate investments in the 2008 economic downturn. But litigation costs are, in general, based on the conduct and outcome of the litigation, not on the personal circumstances of litigants: Brown v. Black Top Cabs Ltd. (1997), 43 B.C.L.R. (3d) 76 at para. 16 (C.A.). [5] Finally, Ms. Gadsby draws to the Court's attention the absence of an award of costs against her in two other applications in which she unsuccessfully applied to reinstate appeals--one before Justice D. Smith on October 9, 2014 and the other before Justice Goepel on March 9, 2021. To the extent that previous costs orders are relevant, I make two observations. First, Justice Smith did award lump sum costs in the amount of $1,000 in favour of the respondent CMIC Mortgage Investment Company (at para. 10). As well, in a further unsuccessful application by Ms. Gadsby to reinstate an appeal before Justice MacKenzie on January 30, 2019, she was ordered to pay lump sum costs of $1,000 to each of the respondents (at para. 44). Second, by my count this is the fourth time that Ms. Gadsby has applied to reactivate or reinstate an appeal she has failed to prosecute in a timely way. In each of those applications her appeal

was found to lack merit. Ms. Gadsby knew that costs could be awarded against her, and indeed the respondents put Ms. Gadsby on notice, well in advance of the hearing, that they would be seeking costs against her should she proceed with the application. [6] In summary, having considered Ms. Gadsby's submissions, I am not persuaded that there is any reason to depart from the general rule that the successful party is entitled to costs payable by the losing party. The lump sum costs sought are modest, representing by my rough calculation about two-thirds of what the respondents could be entitled to under the tariff of costs. Lump sum costs may be awarded pursuant to s. 4(1) of Appendix B of the Court of Appeal Rules, B.C. Reg. 297/2001. In my view it is appropriate to award lump sum costs in this dispute, which has been protracted and costly for both sides. [7] In conclusion, I award costs of $1,000 to each of the three groups of respondents against the appellants jointly and severally. I dispense with Ms. Gadsby's signature on the form of order on the condition that counsel for the respondents will send her a copy of the order once it is entered. "The Honourable Madam Justice Fenlon"