Vancouver, Pendrell Place: Oldaker wins again; court awards costs against strata corporation




Oldaker v. Owners, Strata Plan VR 1008,

2009 BCSC 697

Date: 20090528
Docket: L052371
Registry: Vancouver


Richard Bedford Oldaker



The Owners, Strata Plan VR 1008



Denise M. Hamilton, Nevena Vojic and Nikica Vojic


Before: The Honourable Madam Justice Gill

Reasons for Judgment re Costs

Counsel for the Petitioner:

D.E. Burns

Counsel for the Respondent, Strata Plan VR 1008:

G.S. Hamilton

Place and Date of Trial/Hearing:

Vancouver, B.C.
July 23, 2008

Place and Date of Judgment:

Vancouver, B.C.
May 28, 2009

[1]           The issue to be determined is costs and in the unusual circumstances of this case, the issue is not without difficulty.

[2]           I will deal, first, with the question of whether the petitioner was substantially successful.  It is argued on his behalf that he was; it is the position of the respondent Strata Plan VR 1008 that the petitioner perhaps won a minor battle in the proceeding but clearly lost the war.

[3]           On first blush, it would seem that the respondent is correct as many issues were not resolved in the petitioner’s favour.  But this matter has a history or background which is not apparent if one simply reviews the pleadings or judgments and in my view, that history is a relevant consideration.  Everyone, including the court, was aware in advance that the petition would be commenced.  The reason for its commencement was to put before the court the issue of repairs to the building envelope enclosing the petitioner’s suite and the suite itself.  The issue of repairs had been outstanding for some time and had been the subject of discussion at many case management conferences held in respect of related actions.

[4]           This petition was commenced in an attempt to ensure that repairs that would permit the petitioner’s suite to be occupied were completed.  The focus of the proceedings has always been repairs and everything else was secondary and incidental.

[5]           The history of the matter is unusual in that the case was reopened.  When the matter was originally before the court, it appeared that the respondent was then doing everything necessary to ensure that repairs would be completed promptly but that did not occur.  It was determined to be appropriate to reopen the matter (a new proceeding could have been commenced in any event) and there was a finding in the petitioner’s favour.  It is therefore not appropriate to view what occurred as two proceedings.  It was one proceeding and ultimately, the petitioner prevailed.

[6]           Further, as counsel for the petitioner has noted, it has never been a question of whether repairs were required.  The question was when the necessary repairs would be done.

[7]           In my view, the petitioner was substantially successful.

[8]           The petitioner argues that this is an appropriate case for the award of special costs against the strata corporation.  It is argued that the conduct of the strata corporation in the years prior to and during litigation can be characterized as reprehensible and unconscionable.  It is also argued that the court was misled by the strata council’s assurance that repairs would be effected.

[9]           While I understand why the petitioner is unhappy, I cannot agree with the submission of his counsel that the conduct of the strata corporation in the years prior to and during litigation could be characterized as reprehensible and unconscionable.  While I obviously agree that repairs ought to have been effected more promptly, it is not my view that there is a sufficient basis for an order for special costs. 

[10]        The petitioner also seeks double costs pursuant to Rule 37B, relying upon an offer to settle.

[11]        It is probably useful to set out the offer in its entirely.  It reads:

6.    The Respondent forthwith at its sole expense and cost repair and maintain the common property and assets comprising the building envelope that encloses the strata lot of the Petitioner (for the convenience referred to as the “East Wall’), which lot is legally described as:

PID: 006-331-556
Strata Lot 22, District Lot 185
Strata Plan VR 1008 together with an interest in the common property in proportion to the unit entitlement of the strata lots of the strata lot shown on form 1,

and commonly known as Suite 504, 1819 Pendrell Street in the City of Vancouver, Province of British Columbia (Suite “504″) by carrying out the work identified by Levelton Engineering Ltd. Or Levelton Consultants Ltd., as the case may be (referred to herein as “Levelton”) under Levelton’s report dated June 20, 2002 as supplemented by Levelton’s letter dated November 21, 2005;

2.  the Respondent forthwith at its sole cost and expense obtain and provide or cause to be provided to the Petitioner or applicable authorities or both all certificates, schedules, building permits, letters of assurance or other documents required to implement the aforesaid repairs and maintenance and to confirm that the aforesaid repairs and maintenance have been completed in accordance with the Vancouver Building By-law, #8057, B.C. Reg 240/2000 and the Homeowner Protection Act, S.B.C. 1998, c. 31;

3.  the Respondent forthwith raise by special assessment of its Owners, such funds as are reasonably necessary to implement paragraphs 1 and 2 of this offer, and failing such special assessment being approved by the owners of the Respondent on or before January 20, 2005, an Administrator be appointed, namely, whose mandate will include implementation of the terms of this offer;

4.  the Petitioner be at liberty to pay any maintenance fees or special assessments or both into court, or an interest-bearing trust account of his solicitors, until the Respondent has complied with the terms of this offer;

5.  the agreement consequent upon the Respondent’s acceptance of this offer will also be implemented forthwith in a consent order; and,

6.  the agreement consequent upon the Respondent’s acceptance of this offer, and the consent order will be without prejudice and not adversely affect the Petitioner’s other rights and remedies against the Respondent or other persons howsoever or wheresoever arising relating directly or indirectly to the building envelope failure at the building commonly known as the Pendrell, 1819 Pendrell Street, Vancouver, British Columbia.

[12]        As an initial comment, although it was not argued, I have concerns that the terms of this offer to settle are not clear and unambiguous, a requirement which was noted by Gray J. in Gosbjorn v. Hadley, 2008 BCSC 1614 at para 59.  Further, I do not believe that the acceptance of this offer would have resulted in the avoidance of litigation.  For example, the matters raised by clause 2 of the offer have been the subject of considerable debate between the parties, a debate which played out during the course of the hearing of the petition.

[13]        In any event, the considerations to be applied are set out in Rule 37B(6). 

[14]        Not surprisingly, it is argued on behalf of the petitioner that the offer to settle ought reasonably to have been accepted.  It is argued that instead of accepting the offer which was made and sparing both sides litigation costs which were several times more than the repair budget, the strata corporation elected to fight.  While it is true that the costs of litigating have exceeded the costs of repairs, I agree with counsel for the strata corporation that when one reviews all of what the petitioner was proposing, it was not, in the circumstances of these parties, an offer that ought reasonably to have been accepted.

[15]        In such circumstances, I am not prepared to order double costs as the petitioner seeks. 

[16]        The final issue is the scale of costs.  The hearing was lengthy and many issues were raised.  However, I agree with counsel for the respondent that volume does not always equate to difficulty.  Accordingly, the petitioner will be entitled to his costs, but on Scale B.

“Gill J.”