



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



The Owners, Strata Plan BCS 3699 v. 299 Burrard
  Development Inc.,









2014 BCCA 8




Date: 20140108

Docket: CA040082

Between:

The Owners, Strata
Plan BCS 3699

Respondents

(Petitioner)

And

299 Burrard
Development Inc.,
299 Burrard Residential Limited Partnership,
299 Burrard Hotel Limited Partnership, and
299 Burrard Management Ltd.

Appellants

(Respondents)






Before:



The Honourable Mr. Justice Low

The Honourable Madam Justice D. Smith

The Honourable Madam Justice Neilson




Supplementary Reasons
to
The Owners, Strata Plan BCS 3699 v. 299 Burrard Development Inc.
,
2013 BCCA 356.




Counsel for the Appellants:



S. Coblin





Counsel for the Respondents:



M. Tatchell





Place and Date of Hearing:



Vancouver, British
  Columbia

March 21, 2013





Place and Date of Judgment:



Vancouver, British
  Columbia

July 29, 2013







Written Submissions received:





October 31,
November 15 and 22, 2013







Date of Supplementary Judgment:





January 8, 2014















Supplementary Reasons of the Court




Summary:

The successful appellants are
awarded costs below as well as costs of the appeal. While the Supreme Court
judge adjourned the issue of costs pending further proceedings in that Court,
the appellants expressly raised the issue of those costs on the appeal and,
given their success, were entitled to recover them.

Supplementary Reasons for
Judgment of the Court:

[1]

This appeal arose from a dispute between the appellants, who are the
developer and owner of a condominium complex, and the respondent strata
corporation, which represents the owners of the residential units in the
complex, over the allocation of shared expenses in the development. The
respondent brought a petition seeking disclosure of documents from the
appellants. A Supreme Court judge, sitting in chambers, granted an interim
order for production of some of the documents pursuant to ss. 20 and 35 of the
Strata
Property Act
, S.B.C. 1998, c. 43. She ordered that the question of costs be
adjourned as the parties anticipated further proceedings with respect to the
petition in that Court.

[2]

The appellants appealed the order, and on July 29, 2013 this Court
allowed the appeal and ordered that the respondents petition be dismissed. We
determined that the petition was misguided as the issue of shared costs was a
contractual matter and ss. 20 and 35 of the
Strata Property Act
had no
application: 2013 BCCA 356. The appellants now seek an order for the costs of
both the appeal and the proceeding below.

[3]

The respondent agrees the appellants are entitled to costs of the
appeal, but contends that this Court may not order recovery of the costs
incurred in the Supreme Court when that Court has not dealt with costs in the
first instance. As well, the respondent argues that, despite the appellants
success in this Court, it was compelled to bring the petition because the
appellants failed to honour their obligations to the strata owners under the
Strata
Property Act
. It maintains this provides a basis on which to argue that it
is entitled to costs in the Supreme Court, and says the chambers judge retains
jurisdiction over this issue and it should be remitted to her.

[4]

In support of its first argument, the respondent cites
Hill v.
British Columbia (Minister of Forests)
, 1999 BCCA 305, a case in which the
appellants appealed the order of a Supreme Court judge that dissolved an
ex
parte
interim injunction without addressing costs. This Court dismissed the
appeal. Its decision was also silent as to costs. The respondent submitted a
draft order that provided for recovery of the costs on appeal and below. This
Court denied recovery of the costs incurred in the Supreme Court as the
appellant had not made costs an issue on the appeal:

[5]         As to the costs in
the court below, this appeal being dismissed, it is not for this Court to
change the costs order in the court below unless that issue was made an issue
in this Court which it was not. This is not a case where the order as to costs
below automatically falls because the result in this Court is the setting aside
of the order in the court below.

[5]

The respondent maintains this supports its position that the question of
costs below should be left to the chambers judge.

[6]

We are unable to agree as there are important distinctions between this
case and
Hill
. This is not a case in which the Supreme Court judge
neglected to address costs; her order stipulated that the question of costs would
be adjourned. The appellants then expressly raised liability for those costs in
both their notice of appeal and in their factum. We have decided the Supreme
Court proceeding was misguided, and it has been dismissed. In these
circumstances, we are satisfied the appellants are entitled to recover the
costs below as well as the costs of the appeal.

[7]

Nor do the respondents allegations of misconduct by the appellants
under the
Strata Property Act
alter our view. While this Court may remit
the issue of costs to the Supreme Court in appropriate cases, we are unable to
agree that this is such a case. The respondent chose a course of action that
was bound to fail, and the appellants are entitled to recover the costs they
incurred in responding to it.

[8]

The appellants will accordingly recover their costs in the Supreme Court
as well as their costs of the appeal.




The Honourable Mr. Justice
  Low





The Honourable Madam Justice
  D. Smith





The
  Honourable Madam Justice Neilson







