



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



Ashton Mining of Canada Inc. v. Vesuna
,









2010 BCCA 79




Date: 20100125

Docket:
CA035361

Between:

Ashton
Mining of Canada Inc.

Respondent

(Petitioner)

And

Rumi
Vesuna

Appellant

(Respondent)




Before:



The Honourable Mr. Justice K. Smith





(In Chambers)




On
appeal from: British Columbia Supreme Court, August 3, 2007
(
Ashton Mining of Canada Inc. v. Vesuna
, 2007 BCSC 1374 Van. Reg.
S97638)

Oral Reasons for Judgment




Appellant appearing In Person:






Counsel for the Respondent:



C.A.B.
  Ferris





Place and Date of Hearing:



Vancouver,
  British Columbia

January
  25, 2010





Place and Date of Judgment:



Vancouver,
  British Columbia

January
  25, 2010






[1]

K. SMITH J.A.
: Mr.
Vesuna, who is the appellant in this appeal, has conducted this proceeding in
person in this court and below. His appeal was dismissed on June 6, 2008 in
oral reasons given at the conclusion of the hearing: see 2008 BCCA 248. He
applied for leave to appeal to the Supreme Court of Canada but leave was
refused on July 3, 2009.

[2]

He now applies in respect of the costs that have
been assessed against him by the Registrar following the dismissal of his
appeal. His contention is that he did not receive notice of the appointment to
settle the order of this Court, which included an order that he pay costs of
the appeal, and he did not receive notice of the appointment to assess costs. According
to his evidence, he left the country just after the decision in the appeal on
June 6, 2008 and did not return until the end of November 2008, at which time these
matters came to his attention. By then, the order of the Court had been settled
and costs had been assessed against him.

[3]

He brought this application by way of notice of
motion filed on December 31, 2009. He seeks an order varying an order I made in
chambers on February 8, 2008 to include a provision that he recover costs of that
application in any event. He also seeks leave to extend the time for review of
the costs assessed by the Registrar, and he seeks a review of those costs on
the ground that in many respects they are excessive.

[4]

I will deal first with the interlocutory motion.
On February 8, 2008, Mr. Vesuna successfully resisted the respondents application
for an order that he post security for costs of the appeal: see 2008 BCCA 51. I
did not mention costs in my reasons for judgment. The formal order resulting
from my reasons was entered on June 9, 2008.  It contained no provision for
costs of the application. Mr. Vesuna now asks that the order be varied to
insert an order that he be awarded those costs in any event of the cause. It is
Mr. Vesunas position that he should have the costs of the respondents
unsuccessful application and that they should be set off against any costs he
might be ordered to pay to the respondent.

[5]

I have no jurisdiction or power to vary that
order. The power to vary an order is vested in the Court by s. 9(6) of the
Court
of Appeal Act
and, as a single justice sitting in chambers, I do not have
that power. Therefore, that aspect of Mr. Vesunas application cannot succeed.

[6]

I would add that had Mr. Vesuna insisted on a
provision in the order that he recover his costs of that application it was
within the power of the Registrar to insert such a provision in the order. The Registrar
has no jurisdiction to assess costs where the formal order is silent as to
costs, but the Registrar does have authority in settling an order to insert a
provision to give effect to the normal rule that costs follow the event: see
G.W.L.
Properties Ltd. v. W.R. Grace & Co.  Conn.
(1991), 62 B.C.L.R. (2d)
161. However, Mr. Vesuna did not request an order for costs. Rather he endorsed
his approval on the form of order which, as I have noted, made no provision for
costs of the application. In the absence of some circumstance of which I have
not been made aware, the Registrar was entitled to take Mr. Vesunas approval
at face value and to assume that if he wanted his costs of the application he
would make that known to the division hearing the appeal and ask them to take
the costs into account in the order for costs of the appeal.

[7]

As for the costs assessed on the appeal, a party
dissatisfied with an assessment may apply within 7 days to a single justice in
chambers pursuant to Rule 70 of the
Court of Appeal Rules
for a review
of the assessment under s. 10(3) of the
Act
, which confers the power to
vary an assessment.

[8]

The oral reasons for judgment of the Court
dismissing Mr. Vesunas appeal were silent as to costs. The respondent prepared
a form of order which provided that the Respondent be and is hereby granted
its costs of this appeal. On June 9, 2008, counsel for the respondent mailed a
draft order to Mr. Vesuna at the address for delivery he specified in his
notice of appeal and mailed it, as well, to a residential address at which Mr.
Vesuna sometimes resided in Calgary, Alberta. In his covering letter, counsel
asked Mr. Vesuna to endorse his approval of the form of the order and return
it. The letter contains the following paragraph:

I draw your attention to the second
paragraph of the Order, which provides that the Respondent, Ashton Mining of
Canada, Inc. is entitled to its costs. Section 23 of the
Court of Appeal Act
reads;

Unless the court
or a justice otherwise orders, the party who is successful on an appeal is
entitled to costs of the appeal including the costs of all applications made in
the appeal.

Given this
provision, I have included the provision for the payment of costs in the Order.
If you have any questions arising from the Order, please telephone me so that
we may discuss them. If I do not hear from you, I will expect to receive a
signed copy of the Order back from you by Friday, June 20, 2008. If I do not
receive the Order by that time, I will make an application to settle the Order
before the Registrar of the Court of Appeal. In that circumstance, I will seek
additional costs against you for your failure to approve the enclosed order as
to form.

[9]

On July 14, 2008, counsel for the respondent wrote
again to Mr. Vesuna by letter addressed to his address for delivery and to his
Calgary residential address enclosing an appointment to settle the order of the
division made on June 6, and an appointment for an assessment of the bill of
costs, both set for July 22, 2008 at 10:00 a.m. These letters were sent by
registered mail. I am advised that, at the hearing, the Registrar indicated
that the order would have to be settled before the costs could be assessed and,
as a result, the assessment of costs was adjourned to August 7, 2008 at 10:00
a.m. The settlement of the order went ahead that day and it was settled in a
form including the provision that the respondent recover its costs of the
appeal.

[10]

On July 22, 2008, counsel wrote again to Mr.
Vesuna at his address for delivery and at his address in Calgary, enclosing an
appointment to assess the bill of costs, a copy of the requisition adjourning
that assessment to August 7, 2008, and a copy of the proposed bill of costs. These
letters were sent by both regular and registered mail. The registered letter
enclosing these documents was signed for on July 25, 2008, by a person Mr.
Vesuna advises is his friend, who apparently was at one of those residences
when the letter was delivered.

[11]

After reducing some claimed disbursements in
relatively small amounts, the Registrar assessed the respondents costs on
August 7, 2008 at $5,712 for costs and taxes and $4,533.39 for disbursements,
for a total of $10,245.39. The respondent subsequently registered a certificate
of costs in that amount against title to some property owned by the appellant in
Powell River, B.C. Counsel mailed a copy of the certificate by regular mail to
Mr. Vesuna, again at the address for service and the Alberta residential
address.

[12]

Mr. Vesuna says that, while he was out of Canada
from about June 8, 2008 until the end of November 2008, none of his mail was
forwarded to him during his travels and that he did not see any of the
materials sent to him by the respondent and did not learn of the certificate of
costs until December 2008. He says on February 9, 2009 he filed an application
for leave to appeal this Courts judgment and the award of costs to the Supreme
Court of Canada. That application for leave was refused in July 2009.

[13]

As noted, the Rules provide for a review of an
assessment within seven days of the assessment. Thus, the time limit for Mr.
Vesunas application was August 14, 2008. He filed his motion December 31,
2009, more than a year and four months out of time. Although it is a fair
inference from what Mr. Vesuna has told me that he formed an intention to
appeal the assessment when he learned of it, it does not appear that he
notified the respondent of this intention until the past week or so. The
circumstances do not warrant an extension of time.  Nevertheless, I will deal
with Mr. Vesunas submissions.

[14]

Mr. Vesuna contends the order awarding the
respondent costs of the appeal should not have been settled because he did not
signify his approval of its form. However, since the order was settled by the
Registrar, his approval was not necessary. Even had Mr. Vesuna appeared on the
application to settle the order, it is highly unlikely that an order granting
costs of the appeal to the successful respondent would not have been inserted
in the order. Costs of the appeal follow the event and as stated in s. 23 of
the
Act
, the successful party on an appeal is entitled to costs of the
appeal including all applications brought in the appeal.

[15]

It is regrettable that Mr. Vesuna did not receive
actual notice of the appointments to settle the order and to assess costs.
However, the respondent proceeded in compliance with the Rules. The requirement
that a party provide an address for service is designed to avoid problems with
proving delivery of documents in an appeal. Delivery to an address for service
is sufficient. That is the very purpose of the rule. If Mr. Vesuna was going to
be away from his address for service for a lengthy period of time, as he says
he was, then it was his responsibility to advise the Registry of a new address
for service or to leave instructions at his address for service to notify him
of the receipt of any documents relating to the appeal. He must have been aware
that the appeal proceedings were not concluded by pronouncement of judgment
orally at the end of the hearing, and that the questions of costs and entry of
the formal order remained to be worked out. As I say, it is regrettable he
received no actual notice, but that is not the fault of the respondent, who has
complied with the Rules.

[16]

The respondents bill of costs as assessed contains
an allowance of five units under Item 3 for preparation for the respondents
unsuccessful application for security of costs. It is not surprising that Mr.
Vesuna is upset that not only did he not receive those costs but that they have
been assessed against him as part of the costs of the appeal. However, s. 23 of
the
Act
is clear. Unless the Court orders otherwise, the successful
party on an appeal is entitled to costs of the appeal including the costs of
all applications made in the appeal. There was no order otherwise in this case.
Had Mr. Vesuna asked the Court when it dismissed his appeal to order that the
costs of the respondents unsuccessful chambers application be excepted from
the costs of the appeal, the Court might have so ordered. However, he did not
do so and, since the Court did not order otherwise, the Registrar had no
power to disallow the costs to which Mr. Vesuna now objects. Rather, the
Registrar was required to assess the costs in accordance with the order. Nor is
it within my power as a single justice sitting in review of the assessment to
disallow those costs.

[17]

Mr. Vesuna has challenged specific items in the
bill of costs on the basis that they were excessive in all of the
circumstances. It is the Registrars responsibility to determine whether a bill
of costs is a reasonable bill of costs. In this case, the Registrar made that
determination. I am not in a position today to say that the Registrar made any
error in principle or that the Registrar was clearly wrong. I do not know what
evidence was before the Registrar and Mr. Vesuna has not presented any evidence
in respect of these items, apart from his oral assertions, that would support
his objections. I am therefore unable to accede to Mr. Vesunas submission that
the Registrars decision should be varied and I reject that aspect of his
application, as well.

[18]

In the result, Mr. Vesunas applications are
dismissed.

The Honourable Mr. Justice K. Smith


