



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



Birch v. Brenner,









2017 BCCA 22




Date: 20170116

Docket:
CA42737; CA42738

Docket:
CA42737

Between:

Suzanne Birch

Respondent

(Plaintiff)

And

Robin Elizabeth
Brenner

Appellant

(Defendant)

And

Suzanne Birch and (Others
Residing at Property)

Respondents

(Defendants
By Way Of Counterclaim)

- and 

Docket:
CA42738

Between:

Robin Elizabeth
Brenner

Appellant

(Plaintiff)

And

Frances Ann
Bakewell

Respondent

(Defendant)

And

Robin Elizabeth
Brenner

Appellant

(Defendant
By Way Of Counterclaim)




Before:



The Honourable Mr. Justice Groberman

The Honourable Mr. Justice Goepel

The Honourable Madam Justice Fenlon




On appeal from:  An
order of the Supreme Court of British Columbia,
dated March 26, 2015 (
Birch v. Brenner
, 2015 BCSC 466,
Vancouver Docket Nos. S128262 and S138927)




Counsel for the Appellant:



S.A. Dawson

C. George





Counsel for the Respondents:



S.A. Griffin

P.D.H. Williams





Place and Date of Hearing:



Vancouver, British
  Columbia

April 26, 2016





Place and Date of Judgment:



Vancouver, British
  Columbia

January 16, 2017









Written Reasons by:





The Honourable Mr. Justice Groberman





Concurred in by:





The Honourable Mr. Justice Goepel

The Honourable Madam Justice Fenlon








Summary:

The
parties are the owners of lots in Roberts Creek. The Birch and Bakewell lots
enjoy an easement over the Brenner lot. At trial, the judge found that the
easements provided rights of way not only to the nearest public road, but also
to the Gulf of Georgia. He granted an expansive order setting out the rights of
the parties. Ms. Brenner appeals, arguing that the easements do not extend
to the water, and also that the judges order did not properly reflect his
interpretation of the easements. Held: appeal largely dismissed. The judge interpreted
the easements correctly. His order, while understandably designed to prevent
future disputes between the parties, had the effect of expanding the
respondents rights beyond those associated with a right of way. Accordingly,
some modification to the order is required.

Reasons
for Judgment of the Honourable Mr. Justice Groberman:

[1]

Ms. Brenner, Ms. Birch and Ms. Bakewell each own one of
three contiguous lots in Roberts Creek. There are easements over Ms. Brenners
lot in favour of the lots owned by Ms. Birch and Ms. Bakewell. The
trial judge found that the easements extend from a public road  Lower Road 
to the foreshore on the Gulf of Georgia. Ms. Brenner takes issue with that
finding, arguing that the easements only provide access from Lower Road to the
Birch and Bakewell properties.

[2]

A secondary issue on this appeal is whether the formal order entered in
the court below was in conformity with the judges findings.

The Lands and the
Easements

[3]

The lots owned by the parties comprised a single parcel of land until 1927,
when the southeast corner of the parcel was subdivided off to form Lot A. Lot A
is a waterfront parcel with no public road access. An easement along the
eastern boundary of the remainder lot connected it to Lower Road. That
easement is not in issue in this litigation.

[4]

In 1940, the remainder was further subdivided into four lots. Most of
the waterfront portion of the remainder lot became Lot C. Two upland lots fronting
on Lower Road were also created: one north of Lot C, designated Lot B; and one north
of Lot A, designated Lot D. The fourth lot created was a 12 foot strip of land
running south from Lower Road to the foreshore. Its eastern boundary coincided
with the western boundaries of Lots A and D, and its western boundary coincided
with the eastern boundaries of Lots B and C. It is designated Private Road on
the subdivision plan. The following diagram, based on the 1940 subdivision
plan, shows the general configuration of the lots:













[5]

In 1949, the owners of the Private Road lot (who also owned Lot C)
granted an easement over the Private Road lot in favour of the owners of Lots
A and C. The easement is described as
a
right of way over the  private road for persons, animals, and vehicles.

[6]

In 1973, the owner of Lots A and D proposed to consolidate the two lots,
and, in the belief that it was necessary in order to effect a consolidation,
acquired an easement in favour of Lot D over the Private Road lot. The easement
is in identical terms to the 1949 easement. Although the easement was
registered, the lots were not consolidated.

[7]

Today, Lot A is held by Ms. Birch, and Lot D is held by Ms. Bakewell.
Ms. Brenner, who owned Lot C and the Private Road lot, has consolidated
them into a single parcel, known as Lot 1. The easements that are appurtenant
to Lots A and D continue to exist over that portion of Lot 1 that was formerly
the Private Road lot. In accordance with the terminology generally used in
the law of easements, I will use the term dominant tenement to describe the
land that benefits from the easement (here, Lots A and D) and servient
tenement to describe the lands over which the easement passes (here, that part
of Lot 1 that was formerly the Private Road lot).

The Litigation

[8]

In approximately 2004, Ms. Brenner and her husband (now deceased) constructed
a home on their lot. The following year, they undertook extensive landscaping
of their property. They installed hedges and other plants on parts of the
easement, and also erected wire fencing on it. They placed a large boulder on
the easement, blocking some vehicular use, and also installed a wooden fence
and locking gate. The southern 120 feet of the easement ceased to be available
for use by the respondents, preventing them from accessing the foreshore using
the easement.

[9]

Eventually, the blocking of the southern portion of the easement
resulted in litigation. At trial, among other claims, Ms. Birch and Ms. Bakewell
sought declarations that they were entitled to use the easements, and
injunctions restraining interference with them and requiring the removal of
existing impediments. Ms. Brenner, among other claims, sought declarations
that the easements were void or expired, and the cancellation of the easements.

Supreme Court Decision

[10]

A number of issues were addressed at trial. The judge found the easements
to be valid and enforceable, and concluded that they should not be modified or
cancelled. He granted injunctive and declaratory relief. Most importantly, the
judge rejected the proposition that the easements extended only from Lower Road
to the respondents lots, finding that the easements continued to the foreshore:

[45]      I am unable to accept
that the Easements in this case are so limited. They both refer to a
right-of-way over the said private road, and not merely that portion of it
that permits access to Lots A and D. It is my view that the Easements in this
case were intended by the grantors and grantees to afford the grantees a right
of access from the Private Road not only to their properties, but to the beach
and waterfront at the southern end of the Private Road as well. Any other
interpretation of the wording of the Easements, and their depiction on Plan
6851 would fail to derive a sensible meaning from those words and depiction, as
required by authorities such as

Anglo-Saxon
Petroleum Co. Ltd. v. Adamastos Shipping Co. Ltd
., [1957] 2 Q.B. 233.

[11]

After the reasons for judgment were pronounced, the parties disagreed on
the appropriate terms for the formal order. The judge conducted a hearing to deal
with several issues including the settlement of the orders. He gave reasons
following that hearing (indexed as 2015 BCSC 974), including a discussion of
the appropriate terms for the order.

[12]

The order in the proceeding brought by Ms. Birch against Ms. Brenner
was settled in terms that include the following provisions:

2.         The Plaintiff Suzanne Birch and her agents,
servants, workmen, and invitees are entitled to free, full, and uninterrupted
access to the whole of the Easement Area for persons, animals, and vehicles
save and except that the Easement conveys no right to park vehicles on the
Easement Area or construct within the Easement Area a bridge to permit vehicle
traffic to cross Stephens Creek.

3.         The Defendant Robin
Brenner is enjoined from restricting the free, full, and uninterrupted use by
the Plaintiff Suzanne Birch and her agents, servants, workmen, and invitees of
the whole of the Easement Area for persons, animals and vehicles.

[13]

The order in the proceeding brought by Ms. Brenner against Ms. Bakewell
included identical provisions, except that they referred to the Defendant Ann
Bakewell and the Plaintiff Robin Brenner rather than the Plaintiff Suzanne
Birch and the Defendant Robin Brenner.

[14]

On appeal, the major issue is whether the judge interpreted the
easements correctly in finding that they afforded the holders of the dominant
tenements a right of way to the foreshore, rather than only between Lower Road
and their properties. A second issue is whether, in settling the orders, the judge
afforded the respondents rights beyond those granted in the easements.

The Nature of a Right of
Way

[15]

Ms. Brenner argues that the judge failed to appreciate the nature
of a right of way granted by easement. She says that, as a matter of law, a
right of way in an easement carries with it only a right of access to or egress
from the dominant tenement over the servient tenement. She says access or
egress from the dominant tenements in this case is by way of Lower Road, and
that any interpretation of the easements that allows access from the dominant
tenements to the foreshore exceeds the proper scope of a right of way.

[16]

In support of her argument, Ms. Brenner cites the following passage
from Colin Sara,
Boundaries and Easements
, 5th ed. (London: Sweet &
Maxwell, 2011) at 375:

A private right of way is an
easement permitting people to pass to and fro over another persons land from
one point to another for the benefit of land belonging to the person entitled
to the right of way.

[17]

A number of cases support the proposition that a person making use of a
right of way granted in an easement is only entitled to use the right of way for
access to or egress from the dominant tenement, and not for access to or egress
from other properties. Ms. Brenner particularly relies on
Purdom v.
Robinson
, [1899] 30 S.C.R. 64;
Harris v. Flower
(1904), 74 L.J. Ch.
127 (C.A.);
Grant v. Lerner
(1914), 7 O.W.N. 564 (Ont. H.C.);
Weisner
v. Blades
, [1985] B.C.J. 182, 1985 CarswellBC 2764 (S.C.) and
Das v.
Linden Mews Ltd.
, 2002 E.W.C.A. Civ. 590. I will discuss
Purdom
,
Harris
,
and
Das
, which appear to me to be the most important authorities. It
does not appear to me that the principles applied in
Grant
or
Weisner
differ in any respect from those applied in the three authorities I will discuss.

[18]

In each of these cases, a person who held property to which a right of
way attached used that right of way for the purpose of accessing other
properties that they owned.

[19]

In
Purdom
, the defendant travelled along a beach to get from his
lot to a village. He had no right to do so. After the plaintiff sought to
enjoin such use, the defendant acquired a second lot that purportedly
benefitted from an easement over the beach. The Supreme Court of Canada
rejected the proposition that the easement in respect of the second property
constituted a defence to the trespass claim brought against the defendant.
Citing
Ackroyd v. Smith
(1850), 10 C.B. 164 and
Skull v. Glenister
(1864), 16 C.B. N.S. 81 the Court said, at 71:

[A] right of way granted as an
easement incidental to a specified property cannot be used by the grantee for
the same purposes in respect of any other property...

[20]

In
Harris
, a factory was constructed on two lots, one of which
had a right to access over an easement on an adjacent lot, and the other of
which did not. The English Court of Appeal held that the owner of the factory
was not entitled to use the easement for the purpose of accessing that part of
the factory that lay on the lot that did not benefit from the easement. To do
so would be to allow the burden of the easement to be expanded beyond the scope
of the grant.

[21]

In
Das
, the owner of a residence had a right to use the
carriageway in front of the residence for limited purposes. At para. 5,
the court described the easement as allowing a right to pass and repass over
the [carriageway] to and from the highway to their respective properties by
foot and with vehicles and a right to halt a single vehicle immediately
adjacent to their respective properties for the purposes of loading and
unloading the said vehicles. The owner acquired a separate property that was
separated from the carriageway by a wall. He modified the wall to allow passage
into an area of the second property, which he used for parking his car. The
court held that the use of the carriageway to access the second property was
beyond the scope of the easement:

[23]      What the owner wishes to do is to drive a car up
the carriageway, past number 4, on to the garden ground, and then leave the car
parked there while he enters number 4: by going either through the garden
ground or through the front door that abuts on to the carriageway. All that is
said to accommodate the dominant tenement, in that it is an adjunct to,
ancillary to, the owners enjoyment of life in number 4. But even if the latter
were, in law, an available analysis in general terms, on the facts of this case
it presents an insuperable problem.  The great benefit of access to the garden
ground is not simply to be able to access number 4, because that can already be
done by using the easement according to the grant. What the garden ground adds
is somewhere where the car can be left: a parking space.

[24]       [T]hat is a separate
use from mere access. It is a use that takes place other than on the dominant
tenement, and by using the carriageway to access that parking space the owner
extends the dominant tenement.

[22]

Ms. Brenner argues that this case is analogous to
Purdom
,
Harris
, and
Das
. She says that the easements only grant a right of
way for access to or egress from the Birch and Bakewell lots, and do not give a
right of access to the foreshore.

[23]

Ms. Brenners position is premised on the assumption that an
easement must start at a public highway and end at the dominant tenement. Such
an assumption is not correct as a matter of law. While an easement will, most
often, start from a public highway and end at the dominant tenement, there are
other possibilities. Sara discusses the issue at p. 377 of his book:

It is sometimes said that a right of way must have a
terminus
a quo
and a
terminus ad quem
, i.e. that it must lead from one fixed
point to another. Usually one of these fixed points will be a public highway
and the other will be the dominant tenement. There is no requirement, however,
that the way must lead directly to the dominant land. There is nothing to stop
a person obtaining a right of way over one parcel of land tor the purpose of
gaining access to his own land over intervening land.

[citations omitted]

[24]

Equally, there is nothing to stop a person obtaining a right of way that
extends from the dominant tenement to other land that the owner of the dominant
tenement wishes to access from their land. A landowner can acquire an easement
providing a right of way extending from the dominant tenement to the foreshore.

[25]

In the case before us, the judge interpreted the easements as allowing
access not only between the dominant tenements and Lower Road, but also between
the dominant tenements and the foreshore. There is no legal impediment to the
existence of such rights of way.

[26]

This case is not like
Purdon
or
Harris
, in which the
owners of lands that enjoyed the benefits of an easement purported to be entitled
to use the easements for access to other lands. Ms. Birch and Ms. Bakewell
do not claim a right to use their rights of way for properties to which they
are not appurtenant. They wish to use them only in connection with the dominant
tenements.

[27]

This case does resemble
Das
in some respects.
Das
could be
characterized as a case in which the property owner was asserting a right to
pass back and forth from the highway to his home and back and forth from his
home to a parking spot. It is important to recognize, however, that the
easement in
Das
was not a general right of access to the property over the
carriageway, but rather a specific right to proceed from the highway to the
property, drop off passengers, and return to the highway. By continuing along
the carriageway to a different property on which the parking spot was located,
the owner was exercising rights beyond those given by the easement.

[28]

In contrast, the case before us is one in which the easements simply provide
for a right of way through the easement area. I see no difficulty in the judges
characterization of them as extending both to Lower Road and to the foreshore.

The Interpretation of the
Easement

[29]

Ms. Brenners contention that, as a matter of law, an easement
cannot allow access to the foreshore, then, is without merit. She contends,
however, that, as a matter of interpretation, the easements in issue in this
case do not afford access to the foreshore. She points out that Lot A was, at
all times, a waterfront lot, with no need to have foreshore access by way of
the easement. While Lot D does not have any other access to the foreshore, it
is clear that the easement was acquired for Lot D solely in order to facilitate
its consolidation with Lot A, and not for the purpose of providing independent
access to the foreshore.

[30]

The trial judge heard extensive evidence on the history of the
easements, and gave cogent reasons for his conclusions. The interpretation of
the easements is a mixed question of fact and law, and the judge is entitled to
deference in respect of it. I am not persuaded that the judge made any error in
construing the easements.

[31]

Indeed, I am of the view that the interpretation reached by the judge
was completely consonant with the language of the easement. It also conformed
with the history of the easement. When it was granted, it was over a narrow lot
designated as Private Road. On the face of it, the only practical use for
that lot was as a transportation corridor for the adjoining landowners to
access Lower Road and the foreshore.

[32]

In my view, the judges reasons represent a thorough canvassing of the
history and nature of the easements, and his conclusions are well-supported.

The Scope of the Order

[33]

An easement involves use of land by both the owners of the dominant and
servient tenements. In order to accommodate such joint use, the rights of each are
subject to limitations. The easement itself will contain limitations as to its
extent and purpose. Beyond those limitations, the easement will be interpreted
as not allowing the owner of the dominant tenement to make use of the easement
beyond what is reasonable. Equally, the owner of the servient tenement must not
unreasonably interfere with the use of the easement by the dominant tenement.

[34]

The judge in this case was called upon both to construe the terms of the
easement and to decide whether certain uses of the dominant and servient
tenements were reasonable. In his original judgment, the judge construed the
easement as providing rights of way from Lower Road to the dominant tenements
and from the dominant tenements to the foreshore. He also made certain
determinations with respect to the use of the easement, particularly at paras. 50-56:

[50]      Ms. Brenner relies on the decision of the
Court of Appeal in

Duncan
v. Sherman
, 2006 BCCA 14 [
Duncan
] to support her contention that the
Easements only afford the owners of the dominant tenements access to their
properties at their respective driveways. In that case, the easement for the
benefit of the dominant tenancy provided that:

The Lot A Owner, as the registered
owner of Lot A, grants to the Lot B Owner, as the registered owner of Lot B,
for the benefit of and to be appurtenant to Lot B, for the use and enjoyment of
the Lot B Owner at any time and from time to time, the non-exclusive right,
liberty and easement to enter on, go across, pass and repass over and through,
with or without motor vehicles, the Lot A Easement Area for the purposes of
obtaining access to and egress from Lot B.

[51]

In

Duncan
the purchaser of Lot B agreed, by an
addendum to his contract of sale and purchase, to restrict his access to the
easement from only two locations along its length. In the result, at para. 17,
Madam Justice Levine held:

[17]       [A]s a matter of law,
as noted by the chambers judge,

Lewis v.
Wakeling
(in which the Ontario Court of Appeal relied on the principles
articulated by the English Court of Appeal in

Pettey
v. Parsons
, [1914] 2 Ch. 653), is authority for the principle that a
grantee of an easement is entitled to reasonable access to his property, not
access along the whole unfenced line. The Addendum provided for reasonable
access, and there is no reason not to enforce the agreement. The respondent is
not entitled to access to the easement at gate 2.

[52]

As no such
agreement exists between Ms. Brenner and the owners of the dominant
tenements, the case is of no assistance to Ms. Brenner. The intention of
the parties who agreed to the Easements was to afford the owners of the
dominant tenancies access from the Private Road not only to their properties,
but to the beach and waterfront as well.

[53]

That does
not mean, of course, that the owners of the dominant tenements can expect to
access their properties at all points along the Private Road, or that Ms. Brenner
cannot fence or plant hedges along the eastern boundary of her property, so
long as she affords that reasonable access from the Private Road to the
dominant tenements and to the beach and waterfront that were previously
enjoyed, or subsequently agreed to: see, for example,
Fisher v. Bosse
,
2006 BCSC 674.

[54]      However, it does mean that Ms. Brenner cannot
maintain uninterrupted hedges or fencing along the entirety of the eastern
boundary of her property or the wooden fence and locked gate to the south of
the driveway into Lot A, the large boulder, or significant landscaping and
planting on the Private Road that would prevent the passage of vehicular
traffic along the Private Road as far as the northern side of Stephens Creek.

[55]      I am not, however,
persuaded that the owners of the dominant tenements are entitled to park
vehicles on the Private Road or construct a bridge to permit vehicular traffic
to cross Stephens Creek. Such use to the south of Stephens Creek is contrary to
the topography and the vegetation in that area, which is necessary to reduce
the likelihood of further erosion of Ms. Brenners property above the tide
line.

[35]

These paragraphs appear to have led the parties to differing views as to
the proper form of order. Ms. Brenner, in particular, wished to have the
orders spell out specific points of access from the right of way to the
dominant tenements, and specific details with respect to the use of the
easement. The judge did not agree with her view. In his reasons settling the
order, he said:

[19]      In my view, the forms of orders proposed by Ms. Brenner
are a recipe for further unpleasantness between the litigants, and are
unnecessarily detailed. While I agree that the areas covered by the easements
should be set out in the orders, with some minor exceptions, it is unnecessary
to reiterate in the orders the rights afforded and duties required by the
easements.

[36]

The approach taken by the judge cannot be faulted. The case before him
was a broad-ranging one, touching on many nuances of the easements. He was
required to decide certain fundamental issues  whether the easement allowed
the respondents access to the foreshore, and whether the obstructions placed by
the appellant on the easement violated the respondents rights. The judges
order specifically addressed these issues.

[37]

The judge was entitled, as well, to determine whether particular actions
by the parties, and particular uses proposed by them, were reasonable in light
of the existence of the easement. He enjoyed considerable leeway in deciding
how far to go in this regard. The action before him did not touch on every
possible future scenario. He wisely refrained from making his order too
detailed, reasoning that doing so would increase the likelihood of future
disputes between the parties.

[38]

I am of the view, however, that the terms in which the order was settled
were not wholly appropriate. The easements are rights of way, and as such, they
only allow the respondents to use the servient tenement for the purpose of
passing from Lower Road to their lands, and from their lands to the foreshore.
The order, in stating that the respondents have free, full and uninterrupted
use of the servient tenement fails to recognize this limitation. Further, the
provision enjoining Ms. Brenner from restricting the free, full, and
uninterrupted use by the respondents of the whole of the Easement Area for
persons, animals and vehicles is inconsistent with the judges recognition
that Ms. Brenner is not prohibited from placing some fencing or hedging
along the eastern boundary of her property, provided that doing so does not
unreasonably restrict the respondents use of the right of way.

[39]

Given the unfortunate history of this matter, I am persuaded that it is
necessary to modify the formal order granted in the court below to ensure that it
does not have the effect of enlarging the respondents rights beyond what they
are entitled to as holders of a right of way granted by easement.

[40]

In the result, I would replace paragraphs 2 and 3 of the order in the
Birch
proceeding with the following:

2.         The Plaintiff Suzanne Birch is entitled, with or
without other persons, vehicles or animals, to use the Easement Area to pass:

a) from Lower Road to Lot A

b) from Lot A to Lower Road

c) from Lot A to the foreshore

d) from the foreshore to Lot A

and is entitled to authorize agents, servants, workers and
invitees to pass from and to the same points, with or without other persons,
vehicles, or animals.

3.         The Plaintiff Suzanne Birch does not have the right
to park vehicles on the Easement Area or to construct within the Easement Area
a bridge to permit vehicular traffic to cross Stephens Creek.

4.         Nothing in this order grants the Plaintiff Suzanne
Birch authority to use her right of way over the Easement area in an
unreasonable manner.

5.         The Defendant Robin
Brenner is enjoined from doing anything that restricts the ability of Plaintiff
Suzanne Birch or her agents, servants, workers and invitees to pass through the
Easement Area as set out in this Order.

[41]

The other paragraphs of the original order will have to be renumbered to
accommodate these changes.

[42]

I would replace paragraphs 2 and 3 of the order in the
Bakewell
proceeding with the following:

2.         The Defendant Ann Bakewell is entitled, with or
without other persons, vehicles or animals, to use the Easement Area to pass:

a) from Lower Road to Lot D

b) from Lot D to Lower Road

c) from Lot D to the foreshore

d) from the foreshore to Lot D

and is entitled to authorize agents, servants, workers and
invitees to pass from and to the same points, with or without other persons,
vehicles, or animals.

3.         The Defendant Ann Bakewell does not have the right
to park vehicles on the Easement Area or to construct within the Easement Area
a bridge to permit vehicular traffic to cross Stephens Creek.

4.         Nothing in this order grants the Defendant Ann
Bakewell authority to use her right of way over the Easement area in an
unreasonable manner.

5.         The Plaintiff Robin
Brenner is enjoined from doing anything that restricts the ability of the
Defendant Ann Bakewell or her agents, servants, workers and invitees to pass
through the Easement Area as set out in this Order.

[43]

Again, the succeeding paragraphs of the original order will have to be
renumbered.

[44]

I acknowledge that there remains potential for future disputes between
the parties surrounding what use of the right of way is reasonable. They also
may disagree on the extent of fencing and hedging Ms. Brenner may erect on
the eastern boundary of Lot 1 without restricting the ability of the
respondents to make use of their right of way. It is inappropriate, however,
for the order to resolve these matters, as they have not specifically been the
subject of the litigation. I am hopeful that the parties will be willing and
able to agree on such matters as necessary.

[45]

I am aware that there may also remain some uncertainty as to whether the
easement authorizes the use of vehicles on the portion of the easement lying
south of the north side of Stephens Creek. The judge was clearly aware of the
topography, and specifically found that the easement did not allow for the
construction of a bridge over the creek. He did not specifically deal with the
ability of the respondents to operate vehicles south of the creek (or, indeed, assuming
it is private property covered by the easement, through the creek). It seems
obvious from the evidence that conventional automobiles are wholly unsuited to
the topography, and that it would be difficult for any vehicle to traverse the
creek itself. The judge did not specifically address the question of whether
any vehicular traffic could use the area south of the creek to access the
foreshore. It seems to me that if such a question arises in future (something I
would think unlikely), a court would have to determine whether such access was
a reasonable use of the easement.

Costs

[46]

It does not appear that any order for costs has yet been made in the
Court below. I would not interfere with the discretion of the trial judge to
address the issue of costs if that remains outstanding.

[47]

With respect to costs in this Court, I am of the view that there has
been divided success on distinct issues. In such circumstances, it is open for
the court to award the more successful party a portion of their costs: Cowper-Smith
v. Morgan, 2016 BCCA 509. I am of the view that a fair order would be for the
appellant to pay 75% of the respondents costs.

Conclusion

[48]

In the result, the appeal is allowed only to the extent of modifying the
formal order entered in the court below as indicated in paras. 40-43 of
these reasons. The appeal is otherwise dismissed. The respondents are entitled
to 75% of their costs of the appeal on scale 1.

The
Honourable Mr. Justice Groberman

I AGREE:

The Honourable Mr. Justice
Goepel

I AGREE:

The Honourable
Madam Justice Fenlon


