Sutherland v. Can. (A.G.),

• Jurisdiction: British Columbia
• Judge: Finch, C.J.B.C., Prowse and Huddart, JJ.A.
• Neutral Citation: 2008 BCCA 27
• Citation: (2008), 250 B.C.A.C. 260 (CA),2008 BCCA 27,77 BCLR (4th) 142,250 BCAC 260,[2008] BCJ No 103 (QL),50 CPC (6th) 252,250 B.C.A.C. 260,(2008), 250 BCAC 260 (CA),[2008] B.C.J. No 103 (QL)
• Date: 21 November 2007
• Court: Court of Appeal (British Columbia)

Sutherland v. Can. (A.G.) (2008), 250 B.C.A.C. 260 (CA);

    416 W.A.C. 260

MLB headnote and full text

Temp. Cite: [2008] B.C.A.C. TBEd. JA.050

Wilfred Gary Sutherland and others (respondents/plaintiffs) v. The Attorney General of Canada and The Vancouver International Airport Authority (appellants/defendants)

(CA032930; CA032931; 2008 BCCA 27)

Indexed As: Sutherland et al. v. Canada (Attorney General) et al.

British Columbia Court of Appeal

Finch, C.J.B.C., Prowse and Huddart, JJ.A.

January 23, 2008.

Summary:

The plaintiffs were resident landowners in a subdivision neighbouring the Vancouver International Airport. Their properties were almost directly under the flight path of aircraft landing on the north runway. The Vancouver International Airport Authority (VIAA) operated the airport under a lease from the federal government, granted by the Ministry of Transport. The plaintiffs sued the VIAA and the Attorney General of Canada (defendants) seeking damages for nuisance allegedly caused by the noise caused by use of the runway.

The British Columbia Supreme Court, in a decision reported at [2001] B.C.T.C. 1024, rejected the defence of statutory authority and held that the defendants were liable in nuisance. The defendants appealed.

The British Columbia Court of Appeal, in a decision reported at 170 B.C.A.C. 233; 279 W.A.C. 233, allowed the appeal and dismissed the plaintiffs' action. The court held that while the trial judge did not err in finding that the plaintiffs had established nuisance, the trial judge did err in holding that the Attorney General and others had not met the onus of establishing the defence of statutory authority, a complete answer to the plaintiffs' claims.

The British Columbia Court of Appeal, in a decision reported at [2003] B.C.A.C. Uned. 4, held that the defendants were entitled to their costs of the appeal, except for one-half of the disbursements incurred for the preparation of the appeal books and transcripts, and one-half day's costs of the appeal in respect of the nuisance issues, which were disallowed. The issue of costs in the Supreme Court was remitted to the trial judge on the basis that the defence of statutory authority had been established.

The British Columbia Supreme Court, in a decision reported at [2005] B.C.T.C. 479, ordered that: (i) the plaintiffs were entitled to 25/39ths of all their properly assessable costs and the defendants were each entitled to 14/39ths of all their respective properly assessable costs; (ii) costs were to be assessed at scale 5; (iii) costs relating to the class proceeding certification application in the action were not assessable; and (iv) costs of the apportionment application and of the application to settle the order would be as now settled for the action. The costs awarded were in proportion to the number of trial days that had been spent on the issue on which each party was successful on appeal. The defendants appealed the costs award.

The British Columbia Court of Appeal allowed the appeal, holding that the defendants were entitled to their full trial costs, without apportionment, on scale 5.

Practice - Topic 7030

Costs - Party and party costs - Entitlement to party and party costs - Where success or fault divided - The plaintiffs were resident landowners in a subdivision neighbouring the Vancouver International Airport - Their properties were almost directly under the flight path of aircraft landing on the north runway - The Vancouver International Airport Authority (VIAA) operated the airport under a lease from the federal government - The plaintiffs sued the VIAA and the Attorney General of Canada (defendants) seeking damages for nuisance allegedly caused by the noise caused by use of the runway - The trial judge rejected the defence of statutory authority and held that the defendants were liable - On appeal, the finding of nuisance was upheld, but the defence of statutory authority was allowed as a complete answer to the plaintiffs' claims - The issue of trial costs was remitted to the trial judge - The trial judge ordered, inter alia, that the plaintiffs were entitled to 25/39ths of all their costs and the defendants were each entitled to 14/39ths of all their respective properly assessable costs, assessed at scale 5 - The costs awarded were in proportion to the number of trial days that had been spent on the issue on which each party was successful on appeal - The British Columbia Court of Appeal overturned the costs award, holding that the defendants were entitled to their full trial costs, without apportionment, on scale 5.

Practice - Topic 7030

Costs - Party and party costs - Entitlement to party and party costs - Where success or fault divided - Rule 57(15) of the Rules of Court provided that "The court may award costs that relate to some particular issue or part of the proceeding or may award costs except so far as they relate to some particular issue or part of the proceeding." - The British Columbia Court of Appeal stated that "A plain reading of the rule appears to give the judge a broad discretion to award costs to an unsuccessful party, or to deny costs to a successful party, with respect to an identifiable issue or part of the proceeding. As with every discretionary power, it must be exercised on a principled basis. ... The test for the apportionment of costs under Rule 57(15) can be set out as follows: (1) the party seeking apportionment must establish that there are separate and discrete issues upon which the ultimately unsuccessful party succeeded at trial; (2) there must be a basis on which the trial judge can identify the time attributable to the trial of these separate issues; (3) it must be shown that apportionment would effect a just result." - See paragraphs 28, 29 and 31.

Cases Noticed:

British Columbia v. Worthington (Canada) Inc. et al. (1988), 29 B.C.L.R.(2d) 145; 32 C.P.C.(2d) 166 (C.A.), refd to. [para. 7].

Fraser River Pile & Dredge Ltd. v. Can-Dive Services Ltd. (2002), 170 B.C.A.C. 315; 279 W.A.C. 315; 100 B.C.L.R.(3d) 146; 2002 BCCA 219, refd to. [para. 24].

Laurin v. Ford Credit Canada Ltd. and Fehr (1992), 20 B.C.A.C. 73; 35 W.A.C. 73; 86 B.C.L.R.(2d) 282 (C.A.), refd to. [para. 24].

Elsom v. Elsom, [1989] 1 S.C.R. 1367; 96 N.R. 165, refd to. [para. 24].

Currie v. Thomas (1985), 19 D.L.R.(4th) 594 (B.C.C.A.), refd to. [para. 26].

Webber v. Canadian Aviation Insurance Managers Ltd., [2003] B.C.T.C. 274; 29 C.P.C.(5th) 226; 2003 BCSC 274, refd to. [para. 35].

Van Halteren v. Wilhelm, [1997] B.C.T.C. Uned. F21; 22 C.P.C.(4th) 319 (S.C.), refd to. [para. 35].

Statutes Noticed:

Rules of Court (B.C.), Supreme Court Rules, rule 57(15) [para. 28].

Counsel:

A.D. Borrell and M. Booker, for the appellant, Vancouver International Airport Authority;

L. Lachance, for the appellant, Attorney General of Canada;

J.R. Shewfelt, for the respondents.

This appeal was heard at Vancouver, B.C., on November 21, 2007, by Finch, C.J.B.C., Prowse and Huddart, JJ.A., of the British Columbia Court of Appeal. Finch, C.J.B.C., delivered the following decision for the court on January 23, 2008.