Sutherland v. Canada (Attorney General )

2002 BCSC 661 Citation: Sutherland et al. v. The Attorney General et al. Date: 20020501 2002 BCSC 661 Docket: C971485 Registry: Vancouver

IN THE SUPREME COURT OF BRITISH COLUMBIA BETWEEN:

WILFRED GARY SUTHERLAND AND OTHERS

PLAINTIFFS AND:

THE ATTORNEY GENERAL OF CANADA AND

THE VANCOUVER INTERNATIONAL AIRPORT AUTHORITY

DEFENDANTS

REASONS FOR JUDGMENT

OF THE HONOURABLE MR. JUSTICE R.R. HOLMES Counsel for the Plaintiffs: D.W. Roberts, Q.C. J.R. Shewfelt Counsel for the Defendant, The Attorney General of Canada: G.C. Carruthers G. Rosenfeld Counsel for the Defendant, The Vancouver International Airport Authority: A.P. Seckel A.D. Borrell Issues from July 12, 2001 Reasons for Judgment settled pursuant to written submissions: May 1, 2002 [1] The parties advise they have been unable to agree upon all terms necessary to the appropriate form of order following upon Reasons for Judgment of 12 July 2001. Specifically there are issues regarding the appropriate form of the order in regard to pre-judgment interest, damages incidental to moving and payment of hearing fees. [2] Counsel requested settlement of the order as to these issues on the basis of the written submissions of the plaintiff dated 8 January 2002 and filed 6 February 2002; the Memorandum of Argument of the Defendant Airport Authority filed 12 March 2002; and the Plaintiff's Reply filed 26 March 2002. Counsel for the Attorney General of Canada advised by letter of 13 March 2002 that he would not file a separate submission and supported and relied upon the submissions of the Airport Authority regarding the pre-judgment interest and damages for moving expense issues; the Attorney General of Canada took no position in regard to the issue of hearing fees. PRE-JUDGMENT

INTEREST [3] The judgment of 12 July 2001 awarded the following lump sum damage awards to the plaintiffs for nuisance: Mrs. Page $75,000 Mr. and Mrs. Livingston $40,000 Mr. and Mrs. Jones $60,000 [4] The plaintiff's position is these awards should attract pre-judgment interest from the commencement of the cause of action on 4 November 1996 to the date of judgment 12 July 2001 pursuant to section 1(1) of the Court Order Interest Act at Registrar's rates of interest that are set semi-annually. The position of the defendants is that the judgments were based on appraisal values of the properties involved as of May 2002 and the awards were in current dollars. They urge that the awards should not attract pre-judgment interest, as that would constitute a double recovery. They urge the interest rate be set at 0%. [5] Section 1(1) of the Court Order Interest Act reads as follows: Subject to section 2, a court must add to a pecuniary judgment an amount of interest calculated on the amount ordered to be paid at a rate the court considers appropriate in the circumstances from the date on which the cause of action arose to the date of the order. A "pecuniary judgment" is a "judgment for money" or a "money judgment": Jenner v. Koller [1981] B.C.J. No. 139 (S.C.); Pioneer Envelopes Ltd. v. B.C. (Minister of Finance), (1980) 24 B.C.L.R. 175 (S.C.). [6] The character of the damages, which

underlay a monetary award, is not relevant to the application of section 1(1) of the Act. [7] The damage awards at issue here are "pecuniary judgments" and come within the mandatory provisions of section 1 (1) of the Act giving rise to pre-judgment interest at a rate which is "...appropriate in the circumstances ...". [8] The cause of action of the three plaintiffs arose 4 November 1996 when the north runway first opened to flight operation. The plaintiffs were entitled to compensation for the nuisance that commenced at that time and continued. As damages in lieu of injunctive relief was sought the nature of the damage award has been likened to the cost to the defendants of legalizing a continuing nuisance. [9] The plaintiffs since 4 November 1996 have been kept from the monies to which they were entitled and could have been used in mitigating the interference caused by the nuisance with the amenities of their lands and diminished land value. [10] Damage awards expressed in current dollars do not preclude entitlement to interest. Pre-judgment interest is intended to address both inflation and true interest. Inflation factors preserve the real value of money and the true interest compensates for being kept from that real value: Marante v. Neale, [1993] B.C.J. No. 9 (S.C.). [11] I accept generally the position of the plaintiffs that the evidence indicated that the real estate

market in Richmond from 1996 through 2001 was declining and that deflationary rather than inflationary factors influenced prices. The reality is the current dollar award of May 2001 would not likely have varied significantly if assessed at various times within the period in question. [12] I have reviewed the Registrar's rates for the period from the commencement of the cause of action 4 November 1996 through to judgment 12 July 2001. They vary during the period from a brief low of 2.75% to a high of 5.5%. There is likely an inflationary factor within those rates applied to the value of the properties in issue but it has not been identified and quantified. [13] In the circumstances I will set the appropriate rate of interest to which the plaintiffs are entitled under section 1(1) of the Court Order Interest Act as equal to the Registrar's semi-annual rates for the period in question.

DAMAGES INCIDENTAL TO MOVING [14] In paragraphs 349 and 350 of the Reasons for Judgment the issue of damages for moving expense was addressed. The reasons expressed my concern "...that if and when the north runway is used consistently for aircraft takeoff to the east over the Tait subdivision, the noise levels will become intolerable to those plaintiffs and will compel them to move from their properties." [15] None of the plaintiffs had moved or sold their properties in the 41/2 years preceding judgment. All plaintiffs however sold their property post judgment. [16] It is agreed by the parties that the north runway has not to date been consistently used for traffic taking off to the east over the Tait subdivision. The use of the north runway for departures has been to the west over the ocean, which does not effect the plaintiffs. [17] Counsel for the plaintiffs seeks to interpret the Reasons for Judgment on the basis of quia timet principles that would permit the plaintiffs to sell and move in anticipation of the likelihood that the runway will in future be used for flight departures to the east over their properties. The one year provision is then interpreted as a "sunset clause" restricting the ability of a plaintiff to make a claim beyond one year from actual start of departures to the east from the north runway. [18] The defendants however urge a plain reading of what was

ordered in paragraphs 349 and 350 and that the quia timet approach of the plaintiffs amounts to re-argument involving reconsideration of what was ordered. [19] I am aware this action is imminently to be heard on appeal. It is likely this issue is part of that appeal and subject of review. I expect the argument advanced by the plaintiffs here is to be advanced on appeal. It is not appropriate that I should hear re-argument and engage in reconsideration of this issue. [20] I accept the defendants position that the meaning of the Reasons for Judgment requires a condition precedent to a claim by a plaintiff for moving expense. The plaintiff must show that the north runway is in use for take-off to the east over the Tait subdivision before they sell their property and move. Their right to claim moving expenses ends one year following commencement of use of the north runway for take-off to the east. [21] The plaintiffs are not entitled to an order for payment of their moving expenses.

HEARING FEES [22] In November 2000 the plaintiffs requested and were granted a deferral on the payment of hearing fees in this matter, pending judgment. I am advised hearing fees of $21,500 remain unpaid. [23] Appendix C, Schedule 1, item 14 of the Rules of Court provide that hearing fees are "...payable by the party who files the notice of trial, unless the court orders payment by another party." The court therefor has a discretionary power. [24] Hearing fees are a recoverable disbursement on an assessment of costs before the Registrar under Rule 57. Counsel for the defendants, without providing any specific details submits "...unpaid disbursements cause legal and practical problems in assessment proceedings..." and that "These problems can be avoided by way of an order ...[the hearing fees] ...are payable by the defendants." [25] The defendants argue the plaintiff is trying to off load on the defendants a problem involving the possible constitutional invalidity of the hearing fee as being a tax rather than a fee. The defendants are concerned the effect of an order transferring payment of the hearing fee to them could be construed as imposition of an indirect tax and therefore is ultra vires the Legislature under the provisions of the Constitution Act, 1867. [26] The parties have not provided any authorities in relation to the court's discretion under Item 14. The usual

procedure would be that the party issuing the notice of trial would pay the fees with the unsuccessful party at trial being required to reimburse the paying party as an incident of the assessment of costs. [27] In Barlee v. Capozzi, [1976] 5 W.W.R. 110 (B.C.S.C.), cited with approval in Girocredit Bank Aktiengesellschaft Der Sparkassen v. Bader, [1999] B.C.J. No. 182 (C.A.), Bouck J. held (at p.18): So long as a litigant proves by affidavit evidence or otherwise that he has incurred a disbursement as a result of the proceeding, then that amount may be allowed on a taxation. He does not have to show it was paid before calling on the other side to compensate him for this contingent debt. [28] I do not find the plaintiffs have shown a need for the courts intervention and exercise of discretion. The plaintiffs have the ability to claim the hearing fees as an unpaid disbursement in cost taxation without a necessity they actually make payment in the first instance. In general, a discretionary power ought not to be exercised unless it is necessary; I therefore decline to make the order requested by the plaintiff. "R.R. Holmes, J." The Honourable Mr. Justice R.R. Holmes