Kang v. Grandview Gardens – Strata Plan VAS 2862

2017 BCSC 1724 Kang v. Grandview Gardens - Strata Plan VAS 2862

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Kang v. Grandview Gardens - Strata Plan VAS 2862, 2017 BCSC 1724 Date: 20170927 Docket: S161584 Registry: Vancouver Between: Ping Penny Kang Appellant And Grandview Gardens - Strata Plan VAS 2862 Respondent - and - Docket: S161960 Registry: Vancouver Between: Ping Penny Kang Appellant And Grandview Gardens - Strata Plan VAS 2862 Respondent On appeal from: An order of the Provincial Court of British Columbia, dated December 7, 2015 (Kang v. Grandview Gardens - Strata Plan VAS 2862, 12-39448; Grandview Gardens - Strata Plan VAS 2862 v. Kang, 13-43140). Corrected Judgment: The text of the judgment was corrected on the second page on October 3, 2017. Before: The Honourable Mr. Justice Greyell Reasons for Judgment on Special Costs Counsel for the Appellant: W. McMillan N. Yan Counsel for the Respondent: R.K. Benham-Parker Representative for the Respondent: E. MacKinnon Place and Date of Hearing: Vancouver, B.C. August 24, 2016 Place and Date of Judgment: Vancouver, B.C. September 27, 2017 [1] Regrettably, these reasons concerning the respondent's application for special costs are long overdue. [2] On August 24, 2016, I heard Ms. Kang's application to appeal a decision of the Honourable Judge V. Chettiar sitting in the Small Claims division of the Provincial Court. [3] Judge Chettiar awarded the respondent strata council damages

against Ms. Kang, arising from water leakage within her strata unit that the judge found had caused damage to an adjoining strata property. [4] I delivered judgment on August 26, 2016, dismissing Ms. Kang's appeal. As the respondent strata council had requested special costs, I directed the strata council to file written submissions within 14 days and Ms. Kang to file submissions in response, seven days after receiving the respondent's submissions. [5] The respondent's submissions on costs were filed on September 9, 2016. Ms. Kang filed her response submissions on September 22 and 27, 2016. The respondent filed reply submissions on September 22, 2016, to which Ms. Kang responded on October 4, 2016. The respondent filed an affidavit on November 7, 2016, attaching emails and correspondence. [6] The order from my August 26, 2016 judgment was entered on November 24, 2016, which I signed digitally. [7] The submissions relating to special costs were filed by the parties in the registry of the Supreme Court. The submissions were not sent to Supreme Court Scheduling, nor were they accompanied by correspondence asking that they be brought to my attention, which is the normal method of proceeding. Hence, they languished in the file in the registry until Ms. Kang recently communicated with the court expressing her concern that a decision had not been issued. [8] The respondent submits it

is entitled to special costs on the basis that Ms. Kang's arguments before Judge Chettiar and in this Court had no merit, that she made frivolous and baseless allegations of fraud and perjury against strata council members and its counsel, and that she threatened to take her case to "the media". Further, the strata council says it made a formal offer to settle on August 21, 2015, prior to the hearing of the Small Claims trial, wherein it offered to drop "all litigation between the parties without costs", which Ms. Kang refused. [9] The strata council relies on Mayer v. Osborne Contracting Ltd., 2011 BCSC 914, where Mr. Justice Walker said, at para. 8: [8] Special costs are awarded where a litigant engaged in reprehensible conduct. The purpose of an award of special costs is to chastise a litigant. Special costs are punitive in nature and encompass an element of deterrence. A wide meaning is given to the word "reprehensible". The term represents a general and all encompassing expression of the applicable standard for an award of special costs. "Reprehensible" conduct includes conduct that is scandalous, outrageous, or constitutes misbehaviour, as well as milder forms of misconduct that in a court's view deserves reproof or rebuke. In determining whether the conduct of a party is reprehensible, courts may consider whether the conduct complained of is a type from which it should

seek to dissociate itself: Garcia v. Crestbrook Forest Industries Ltd. (1994), 119 D.L.R. (4th) 740 at 745 - 747 (C.A.); Stiles v. B.C. (W.C.B.) (1989), 38 B.C.L.R. (2d) 307 at 311 (C.A.); Leung v. Leung (1993), 77 B.C.L.R. (2d) 314 at para. 5 (S.C.); International Hi-Tech Industries Inc. v. FANUC Robotics Canada Ltd., 2007 BCSC 1724 at para. 6; and Fullerton v. Matsqui (District) (1992), 74 B.C.L.R. (2d) 311 at para. 23 (C.A.). [10] The strata council also relies on Leger v. Metro Vancouver YWCA, 2013 BCSC 2021, for the proposition stated at para. 77 that being self-represented "is not a licence to conduct herself as she sees fit or without regard to the Rules of Court or to make unfounded allegations of misconduct against opposing counsel". [11] The strata council seeks special costs in the amount of $22,500 based on a "rough and ready approach" of $5,000 per half day of court time, for a total of one and a half days between the appeal and the judgment, and multiplied by 1.5 to account for the strata council responding to two separate court actions. In the alternative, the strata council seeks special costs based on its actual legal costs, which amount to roughly $24,000. The strata council also seeks reimbursement of its disbursements in the amount of roughly $6,100 and a penalty of $2,543.19, being 20% of the value of the settlement offer made, pursuant to Small Claims Rule

10.1(6). [12] Ms. Kang takes the position that special costs should not be awarded against her; that if special costs are awarded, those costs must be assessed by the registrar; and that this Court does not have jurisdiction to order costs for the two Small Claims actions nor to order other penalties under the Small Claims Rules. Decision on Jurisdiction over Costs [13] While s. 13(1)(a) of the Small Claims Act, R.S.B.C. 1996, c. 430, confers authority on this Court on an appeal to "make any order that could be made" by the Small Claims Court, I am of the view that this does not include an order for costs. The Small Claims Division of the Provincial Court is a specialized tribunal in its own right, determining claims of limited monetary value under its own set of rules. Those rules are intended to promote the mediation of disputes and expeditious, cost efficient proceedings when a matter cannot be resolved short of trial. The Small Claims Rules are considerably structured and less formal than the Supreme Court Rules. The process, including the rules governing the Small Claims Court, are intended to provide quick, easy, and inexpensive access by lay persons to the judicial resolution of disputes within that court's jurisdiction. [14] In my view, a corollary of the essential nature of provincial courts is that such courts must have exclusive jurisdiction over the circumstances in

which they govern the costs of the proceedings before them. I am not of the mind that this Court should decide whether special costs should be payable for proceedings in Provincial Court on an appeal from those proceedings. Costs arising from Provincial Court proceedings, and particularly special costs and cost arising from an offer which is or is not accepted, should, in my view, be determined under the processes for determining costs in the Provincial Court. An award of special costs invokes the standard of "reprehensible conduct", which encompasses not only scandalous or outrageous conduct but also milder forms of misconduct deserving the rebuke of the court. Whether or not conduct deserves the rebuke of the court in Provincial Court must be determined by the Provincial Court, as must the issue of the appropriate costs payable by Ms. Kang for losing her case in that court. In short, all costs and disbursements arising from the Provincial Court proceedings must be assessed by the appropriate assessing officer of that court. [15] Accordingly, I decline to award special costs or disbursements to the strata council for proceedings in Provincial Court. [16] I refer these matters back to the Small Claims Division to make a determination pursuant to its rules. Decision on Costs of the Appeal [17] Ms. Kang's appeal of Judge Chettiar's decision was clearly without merit. As pointed

out by Judge Chettiar at para. 77 of her decision, "there was no evidence at all that supported Ms. Kang's claims" and "in spite of being repeatedly made aware prior to trial that she had no reasonable grounds for success at trial, she insisted on proceeding to trial." The strata council says that Ms. Kang deliberately represented a different version of events on the appeal - that at the Small Claims trial she admitted that water had leaked from her bathroom but on appeal she changed her story and denied this was the case. [18] An award of special costs is a discretionary order. Such discretion must be exercised on a principled basis, taking into account the particular circumstances of the case and the court's jurisprudence on special costs. In Gichuru v. Smith, 2014 BCCA 414, the court held that the "rough and ready" approach (an approach the strata seeks in this case) based on a fixed fee per half day should not be used to assess special costs" (para. 153). [19] Ms. Kang moved to Canada from China in 2003 at the age of 39. She is raising two teenage children and works part-time as a personal care worker. Her English and ability to express herself cogently in English is limited. As might be expected, she has little familiarity with the court process, the adversarial system, the rules of evidence or how to present a case when appearing in Provincial Court and pursuing her

appeal in this Court. She has deposed that she "believed that tenacity and persistence would pay off in litigation when I lacked the adequate guidance and proper advocacy skills" (affidavit sworn September 21, 2016, at para. 21). [20] This Court has jurisdiction to assess special costs arising from the appeal. Lay litigants are not exempted from an award of special costs if they have engaged in conduct warranting sanction (see: Leger at para. 77). [21] Litigation is frequently hard fought. There is a difference between taking a hard and vigorous position and a position which the court should sanction because it goes over the line. Given the circumstances of this case and Ms. Kang's background, it is my view that Ms. Kang's conduct, while coming close to the line warranting special costs, does not cross that line. I am also influenced by the fact that funds paid into court by Ms. Kang, pursuant to the entered order, which were to be paid out "forthwith" to the strata plan, remain in court to this day. Almost one year has passed and the strata council, to whom the funds were payable, has not brought the matter to court to address the fact that my decision on special costs remained outstanding. [22] The respondent is entitled to its costs and disbursements as the successful party on the appeal. If the parties cannot agree on the amount they will be taxed before the Registrar in the normal manner, as stated, the respondent can pursue whatever cost remedy it has against the appellant for costs arising from the Small Claims action in Provincial Court. "Greyell J."