Suncourt Homes Ltd. v. Cloutier

2020 BCSC 595 Suncourt Homes Ltd. v. Cloutier

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Suncourt Homes Ltd. v. Cloutier, 2020 BCSC 595 Date: 20200417 Docket: S112075 Registry: Kelowna Between: Suncourt Homes Ltd. Plaintiff And: Andre Joseph Pierre Cloutier Tana Jean Cloutier City of Kelowna Defendants And: Andru Visinski also known as Andy Visinski and Gudrun Visinski or Jane Doe Defendants by way of Counterclaim Before: The Honourable Madam Justice Watchuk Reasons for Judgment - Costs Counsel for the Plaintiff: R. Burke Counsel for the Defendants: J.D. Flannigan D. Horvath Counsel for the Defendant City of Kelowna: S. Morishita Counsel for the Defendants by Counterclaim: R. Burke Place and Date of Written Submissions: Kelowna, B.C. January 29, 2020 February 11, 2020 February 19, 2020 Place and Date of Judgment: Kelowna, B.C. April 17, 2020

INTRODUCTION [1] These reasons concern costs resulting from reasons for judgment (the "Reasons") indexed at 2019 BCSC 2258. The case arose from a dispute between neighbours over a renovation project. The defendant City of Kelowna (the "City") was joined as the authority responsible for issuing the relevant permits. [2] In or about 2015, the personal defendants, Andre and Tana Cloutier ("the Cloutiers"), began working on a renovation project on their property civically known as 908 Mount Royal Drive, Kelowna, British Columbia. The project involved the construction of a second garage, work space, and play room, together with landscaping on the property. The landscaping raised the grade and incorporated landscaping walls, as well as a rock wall, part of which faced onto the property belonging to the plaintiff, Suncourt Homes Ltd. [3] Andru Visinski is the owner of Suncourt Homes Ltd. He and his wife Gudrun (the "Visinskis") live on the property owned by Suncourt at 910 Mount Royal Drive, Kelowna, British Columbia. The properties share a common boundary. [4] The plaintiff alleged that the Cloutiers, in carrying out the project, breached the statutory building scheme ("SBS") registered on title to the properties. In addition, it claimed the Cloutiers were liable in nuisance and trespass. [5] The Cloutiers, in turn, counterclaimed against the Visinskis personally. They allege that

the Visinskis caused a nuisance by feeding wildlife, thereby attracting deer and birds to their property in substantial numbers. They alleged trespass for the use of the pond area and some paving stones. [6] The Reasons set out in great detail the background, evidence, legal issues and analysis. It is not necessary to repeat them. [7] The issues before the court concerning the SBS were as follows: (a) Is the SBS valid and enforceable against the Cloutiers? (b) If so, did the Cloutiers' project violate the SBS? (c) If so, should the court issue a mandatory injunction to undo the renovations? (d) If not, what is the appropriate measure of damages in lieu of an injunction? [8] At the conclusion of trial the plaintiff sought the following relief: (1) A mandatory injunction to remove the soil and rock deposited on the Cloutier property and to restore the property to its previous condition. (2) Damages for nuisance and trespass against the Cloutiers. (3) Damages for negligence against the City. [9] The issues with respect to Cloutiers' counterclaim were as follows: (a) Did the Visinskis create a nuisance by feeding deer and wildlife on their property? (b) Was the ongoing maintenance and use of the corner of the driveway and fish pond area a trespass? (c) What are the appropriate damages? [10] The Reasons concluded as follows: [184] The plaintiff is entitled to damages in the amount of $1,000 for the Cloutiers' breach of two provisions of the SBS. [185] The balance of the plaintiff's claim against the Cloutiers for trespass and nuisance is dismissed. [186] The plaintiff's claim against the City for negligence is dismissed. [187] The Counterclaim is dismissed in its entirety.

SUBMISSIONS ON COSTS [11] The parties have now made written submissions on costs. [12] The Cloutiers submit that costs ought to be awarded in their favour at Scale B on the basis that they achieved substantial success at trial. With respect to the counterclaim, the Cloutiers acknowledge the Visinskis were successful. However, they submit those issues formed a minor part of the overall litigation and costs for the counterclaim ought to be apportioned one-twelfth to the Visinskis, representing at maximum one day of the twelve days of trial time. They submit that they should not be punished for refusing the Visinskis' formal offer to settle the counterclaim. [13] The plaintiff, while acknowledging it failed on several causes of action, submits it succeeded it proving the Cloutiers breached the SBS. It submits that it should receive one-half of its costs of trial. In any case, the Visinskis submit they are entitled to the costs of the counterclaim at Scale B up to the date of their offer to settle and double costs thereafter. They submit that three days should be allocated to the counterclaim. [14] The plaintiff acknowledges that it is responsible for the costs of the City and advises that the parties have agreed on the amount to be paid.

DISCUSSION [15] Rule 14-1(9) of the Supreme Court Civil Rules [SCCR] requires the costs of a proceeding to be awarded to the "successful party" unless the court otherwise orders. In cases where multiple causes of action are in issue, as in the instant case, the "substantial success" test is applied to determine the successful party: The Owners, Strata Plan LMS 3259 v. Sze Hang Holding Inc., 2017 BCCA 346 at paras. 90-92. [16] The "substantial success" standard was described by Bouck J. in Fotheringham v. Fotheringham, 2001 BCSC 1321 at para. 45: [45] Gold now seems to say that substantial success in an action should be decided by the trial judge looking at the various matters in dispute and weighing their relative importance. The words "substantial success" are not defined. For want of a better measure, since success, a passing grade, is around 50% or better, substantial success is about 75% or better. That does not mean a court must descend into a meticulous mathematical examination of the matters in dispute and assign a percentage to each matter. Rather, it is meant to serve as a rough and ready guide when looked at all the disputed matters globally. [17] In this case, while the plaintiff succeeded in proving two breaches of the SBS, the remedy it sought for the breach--a mandatory injunction to remove the soil and rock deposited on the Cloutier property and to restore the

property to its previous condition--was denied. Instead it was awarded nominal damages of $1,000. The plaintiff's claims for damages for trespass and nuisance were dismissed. [18] The major issues at trial revolved around the plaintiff's concerns about the rock wall. On these issues it failed. Looking at the disputed matters globally, I find that the Cloutiers were the substantially successful party. They are entitled to the costs of the action. [19] I turn next to the Cloutiers' counterclaim. A counterclaim is a separate action included in the litigation for convenience: The Owners, Strata Plan LMS3259 v. Sze Hang Holding Inc., 2012 BCCA 196 at para.

80. Ordinarily, the action should be treated as if it stood alone, and the counterclaim should bear the amounts by which it increases the costs of proceedings. Where a defendant successfully defends an action, but a plaintiff successfully defends a counterclaim, the usual practice is to award the defendant the costs of the action and the plaintiff the costs of the counterclaim, to be set off against each other: Litt v. Gill, 2016 BCCA 288 at para. 55. [20] In this case, the Visinskis successfully defended the counterclaim and are entitled to the costs of the counterclaim. There will therefore be a set-off of the costs awarded to the Cloutiers and those awarded to the Visinskis as the successful defendants in the counterclaim, since they are also the principals of the corporate plaintiff who was the registered owner of the property involved in all claims. [21] The Visinskis also seek double costs of the counterclaim from August 27, 2018 based on the following offer to settle: The defendants by counterclaim, Andru Visinski and Gudrun Visinski, hereby offer to settle the counterclaim against them for the sum of $500. The defendants by counterclaim will also pay the disbursements incurred by the Cloutiers for bringing the counterclaim. The defendants by counterclaim, Andru Visinski and Gudrun Visinski, reserve the right to bring this offer to the attention of the court for

consideration in relation to costs after the court has pronounced judgment on all other issues in this proceeding. [22] The Cloutiers did not accept the offer. They submit they should not be punished for refusing to do so. In that regard, they say the counterclaim included a claim of ongoing trespass on their property arising from the use of paving stones on the Visinskis' driveway. At the time the settlement offer was made, the Visinskis had utilized this portion of the Cloutier property for many years and continued to do, despite multiple requests to the contrary. This issue was not addressed in the settlement offer of $500. As such, they say that such a low settlement offer had no reasonable chance of being accepted in the circumstances. [23] Rule 9-1(6) of the SCCR sets out a number of factors regarding whether the court ought to award double costs for a party's failure to accept a settlement offer. Of these considerations, the determining factor in this case is whether the offer was one that ought reasonably to have been accepted. That assessment is made under the circumstances existing when it was open for acceptance. The focus of this analysis is on whether it was unreasonable to have refused the offer, as opposed to whether the offer was a reasonable one in itself: Cottrill v. Utopia Day Spas and Salons Ltd., 2019 BCCA 26 at para. 30; Kobetitch v. Belski, 2018 BCSC 2247

at para. 24. [24] With respect, I do not agree with the submission of the Cloutiers. I found the encroachment of the paving stones to be de minimus and thus without remedy. Such a result should not have come as a surprise. The $500 offer was more than adequate compensation for the allegations made. It was unreasonable for the Cloutiers to have refused the settlement offer made by the Visinskis. [25] The Visinskis are therefore entitled to the costs of the counterclaim to August 27, 2018 and double costs thereafter. [26] All parties agree that it is necessary to apportion the time required for the counterclaim. While a precise calculation is not possible as there was some overlap in the claims, the counterclaim was clearly a subordinate issue. The trial lasted twelve days. I find that ten days were devoted to the trial, including the issues involving the City, and two days to the counterclaim. [27] In the result, the Cloutiers are entitled to their costs of the action at Scale B based on a ten-day trial. The defendants by way of counterclaim are entitled to the costs of the counterclaim, including double costs after delivery of the Offer to Settle, based on a two day trial. The costs awarded for the counterclaim will be set off against the costs awarded to the Cloutiers. "The Honourable Madam Justice Watchuk"