



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



Spraggs v. Coldstream Court Resort (1966) Ltd.,









2011 BCCA 32




Date: 20110121

Docket: CA037196

Between:

Marilynn Spraggs
and Lynn Spraggs

Appellants

(Plaintiffs)

And

Coldstream Court
Resort (1966) Ltd.

Respondent

(Defendant)




Before:



The Honourable Madam Justice Saunders





The Honourable Mr. Justice Lowry





The Honourable Mr. Justice Frankel




On appeal from: Supreme
Court of British Columbia, May 21, 2009
(
Spraggs v. Coldstream Court Resort (1966) Ltd.
, Kelowna Registry No.
35613)

Oral Reasons for Judgment




Appellant appearing In Person (via phone):



L. Spraggs





Counsel for the Respondent:



D.G. Sanderson, Q.C.





Place and Date of Hearing:



Vancouver, British
  Columbia

January 17, 2011





Place and Date of Judgment:



Vancouver, British
  Columbia

January 21, 2011








[1]

SAUNDERS J.A.
: Ms. and Dr. Spraggs apply pursuant to s. 9(6)
of the
Court of Appeal Act
for an order varying the decision of a
justice refusing leave to appeal an order for costs of a judge of the Supreme
Court of British Columbia.

[2]

The case has taken an unusual path. Ms. Spraggs and Dr. Spraggs filed a
petition seeking to settle the boundary of property owned by them in the
Coldstream area. The original petition did not define with precision the corner
for which they were advocating. The respondents advanced a different location.
On an application under R. 18A of the
Rules of Court
,

Madam
Justice Beames referred the case to full trial, with costs of that application
to be costs in the cause. The case was tried by Mr. Justice McKinnon. He held
that the location advanced by the respondents was not correct and in his order
gave directions for defining the boundary, somewhat in terms favouring the
Spraggs position. However he did not precisely define the boundary because the
evidence adduced by the Spraggs presented two alternative locations which
appeared to derive from work done by the same expert and he made no order as to
costs.

[3]

The Spraggs appealed. This Court set aside the order of Mr. Justice
McKinnon and ordered a new trial. In doing so this Court held on the issue of
costs:

[26]      I would allow the appeal, set aside the order, and
remit the matter to the Supreme Court for a new trial on the question of the
location of the northeast corner of the Spraggs' property as determined by Mr.
Tassie.

[27]      I would order that the
Spraggs are entitled to the costs of the appeal. I would make no order for
costs of the trial appealed from.

[4]

In accordance with that order the matter returned for trial before Mr.
Justice Cole. By a consent order Mr. Justice Cole determined the location of
the corner demarking the disputed boundary.

[5]

Costs, however, were contested. As to costs Mr. Justice Cole ordered:

1.         The Petitioners are entitled to their costs from
January 31, 2007 to the present at Scale B.

2.         The issue of costs
between the date of the Petition to the date of the filing of the Notice of
Appeal shall be referred back to Mr. Justice McKinnon for determination.

[6]

No one, apparently, questioned the propriety of costs being referred to
Mr. Justice MacKinnon when the order he had made, for reasons of inadequacy of
the record, had been set aside. Mr. Justice MacKinnon grappled with the costs
of the now long ago trial and ordered that each party would bear their own
costs.

[7]

The appellants seek to appeal that order but have not challenged the
order of Mr. Justice Cole which declined to determine costs for any time prior
to January 31, 2007.

[8]

Mr. Justice Chiasson, in chambers, denied leave to appeal on August 13,
2010. The appellants filed this motion to vary his order.

[9]

Our task on an application to vary a decision of a single justice is
well known. This Court does not undertake a fresh consideration of the
application. Rather we must ask whether the justice was wrong in law or
principle or misconceived the facts:
Halderson v. Coquitlam (City)
(2003), C.P.C. (5th) 225.

[10]

Here the application before the justice was for leave to appeal. That is
an application engaging several factors, also well known, including
consideration of the likelihood of success, the importance to the practice of
the issue, and the interests of justice, remembering in this case the costs
order itself is an order engaging the discretion of a judge.

[11]

In his reasons for judgment refusing leave to appeal Mr. Justice
Chiasson first referred to the test for leave to appeal an order for costs as
set out in
Neufeld v. Foster
, 2000 BCCA 485, and observed that the
applicants bear an onerous burden because of the courts reluctance to
interfere with discretionary orders:
Oliveira v. McIntyre,
[1998] B.C.J.
No. 1682 (C.A.). He observed it is well settled that a court may decline to
award costs when success is divided. He concluded that the fact success was
divided was consistent with the observations of this Court on appeal and
concluded that it was unlikely a division of this Court would disturb the
judges determination. In other words, he found it was unlikely the appeal
would succeed.

[12]

I think it can be said that the costs issue did go astray in the Supreme
Court of British Columbia. This is for two reasons, first this Court had
already said there would be no order of costs of the first trial, and so costs
of the first trial were not on the plate for consideration by the Supreme Court
of British Columbia on the re-trial, and second, the matter should not have
been delegated by the second trial judge to the first trial judge as to any
costs pre-dating the appeal that were not encompassed by this Courts order
declining costs of the first trial.

[13]

As a general proposition, and, in the words of Mark M. Orkin,
The Law
of Costs,
loose-leaf (consolidated on 18 January 2011), (Aurora, Ont.:
Thomson Reuters, 1987) A statement by the court ... to the effect of no order
as to costs is, of course, an order of costs, and means that neither party
shall pay any costs to the other citing
McCune v. Botsford and Macquillan
(1902), 9 B.C.R. 129 (S.C. sitting as a Full Court).

[14]

In this case this Court expressly directed there be no order respecting
costs of the first trial. In other words, because this Court expressly made no
order as to costs, costs of the first trial were a dead letter, with the result
that the parties bore their own costs of the first trial. Coincidentally, this
is the order made by Mr. Justice McKinnon as to costs of the first trial, so an
appeal would accomplish nothing with respect to those costs. It could not
succeed.

[15]

This leaves, perhaps a lacuna as to costs of the proceedings, excluding
costs of the first trial, up to the filing of the Notice of Appeal, which as I
have said ought not to have been delegated to Mr. Justice MacKinnon. However,
an appeal of that aspect of Mr. Justice MacKinnons order would be of no import
because even if it were set aside, there would still be no recovery of those
non-trial costs, given that the order of Mr. Justice Cole is in effect.

[16]

I will say none of this appears to have been brought to the attention of
either judge of the Supreme Court of British Columbia involved, or to the
single justice whose order we are reviewing, but the effect of these aspects
reinforces the conclusion of the chambers judge that leave ought not to issue.

[17]

In these unusual circumstances but with this clarification, I would
dismiss the application to vary the order of a single justice.

[18]

LOWRY J.A.
: I agree.

[19]

FRANKEL J.A.
: I agree.

[20]

SAUNDERS J.A.
: The application is dismissed.

The Honourable Madam Justice Saunders


