Trans North Turbo Air Ltd. et al. v. North 60 Petro Ltd. et al., 2004 YKCA 9

• Judge: Smith, Thackray and Lowry, JJ.A.
• Court: Court of Appeal (Yukon Territory)
• Case Date: June 15, 2004
• Jurisdiction: Yukon
• Citations: 2004 YKCA 9;(2004), 200 B.C.A.C. 126 (YukCA)

Trans North v. North 60 Petro (2004), 200 B.C.A.C. 126 (YukCA);

    327 W.A.C. 126

MLB headnote and full text

Temp. Cite: [2004] B.C.A.C. TBEd. JN.059

Trans North Turbo Air Limited (respondent/plaintiff) v. North 60 Petro Ltd., Patrick O'Hagan and Brian Larkin (appellants/defendants)

Robert Brian Cameron (respondent/plaintiff) v. North 60 Petro Ltd., Patrick O'Hagan and Brian Larkin (appellants/defendants)

Almon Landair Ltd. (respondent/plaintiff) v. North 60 Petro Ltd., Patrick O'Hagan and Brian Larkin (appellants/defendants)

Summit Air Charters Ltd. (respondent/plaintiff) v. North 60 Petro Ltd., Patrick O'Hagan and Brian Larkin (appellants/defendants)

(YU00497; 2004 YKCA 9)

Indexed As: Trans North Turbo Air Ltd. et al. v. North 60 Petro Ltd. et al.

Yukon Court of Appeal

Smith, Thackray and Lowry, JJ.A.

June 15, 2004.

Summary:

A 50 year old aircraft hangar was destroyed by fire. The plaintiffs sued the defendants for damages. The trial judge held that the defendants were liable to the plain­tiffs for the loss and awarded dam­ages with prejudgment interest, increased and double costs to the owner of the hangar and double disbursements. The defendants appealed.

The Yukon Court of Appeal allowed the appeal in part. The court affirmed the trial judge's rulings on liability, damages with prejudgment interest and double costs and set aside the orders for increased costs and double disbursements.

Interest - Topic 5004

Interest as damages (prejudgment interest) - General principles - Discretion of judge -A 50 year old aircraft hangar was destroyed by fire - The plaintiffs sued the defendants for damages - The trial judge held that the defendants were liable to the plain­tiffs for the loss and awarded dam­ages with prejudgment interest calculated at a rate of 7.5% - The defendants appealed, arguing that the trial judge erred in prin­ciple by not exercising the discretion afforded to him under s. 35(7) of the Judicature Act in not fixing the rate of interest at 5.21%, which was the average prime rate existing from the time the action was com­menced - The Yukon Court of Appeal dismissed the appeal - While it was arguable that this was an appropriate case for use of the discretion and the dif­ference in the interest rate did make a differ­ence of more than $1 million in the prejudgment inter­est recoverable, the court held that the trial judge did not err in refusing to use the lower interest rate - The Act did not man­date that the lower rate be used, only that it be used where the judge considered it to be just in all the circum­stances - See para­graphs 54 to 57.

Interest - Topic 5009

Interest as damages (prejudgment interest) - General principles - Prejudgment interest - Calculation of - Rate - [See Interest - Topic 5004 ].

Practice - Topic 6923.1

Costs - General principles - What rules applicable - In January 1999, a 50 year old aircraft hangar was destroyed by fire - In Novem­ber 2000, the plaintiffs sued the defendants for damages - In June 2003, the trial judge held that the defend­ants were liable to the plaintiffs for the loss and awarded increased costs to the owner of the hangar - The Rules of Court had been amended to provide that in­creased costs were abolished as of July 1, 2002 - The trial judge held that pursuant to rule 1(10), which stated that the court could order that a proceeding be continued and concluded under the rules in force at the time of its commencement, he could award increased costs under the rules in force at the time the action was com­menced (November 2000) - The Yukon Court of Appeal allowed the de­fendants' appeal - The court stated that "if Rule 1(10) could be invoked to permit an award of increased costs after 1 July 2002, it could only be on the basis of a prospec­tive order, not an order sought and made after the costs were incurred. It is for present purposes unnecessary to determine whether the rule can be invoked in that way because here no prospective order was sought." - See paragraphs 58 to 64.

Practice - Topic 7109.1

Costs - Party and party costs - Special orders - Increased costs (based on solicitor and client or special costs) - [See Practice - Topic 6923.1 ].

Practice - Topic 7244.3

Costs - Party and party costs - Offers to settle - Double disbursements - In January 1999, a 50 year old aircraft hangar was destroyed by fire - The plaintiffs sued the defendants for damages - Settlement offers were discussed but refused - The trial judge held that the defendants were liable to the plaintiffs for the loss and awarded double disbursements - The defendants appealed - The Yukon Court of Appeal held that the trial judge erred in awarding double disbursements - Pursuant to rule 37(1) of the Rules of Court, double costs including disbursements were available where offers of settlement were made - The court considered that rule 37(1) did not include double disbursements, only dis­bursements that were allowed under rule 57(4) - See paragraphs 65 to 68.

Cases Noticed:

R. v. Abbey, [1982] 2 S.C.R. 24; 43 N.R. 30; 138 D.L.R.(3d) 202; 1 W.W.R. 251, refd to. [para. 17].

Caswell v. Powell Duffryn Associated Collieries Ltd., [1940] A.C. 152 (H.L.), refd to. [para. 20].

Nan v. Black Pine Manufacturing Ltd., [1991] 5 W.W.R. 172; 80 D.L.R.(4th) 153; 55 B.C.L.R.(2d) 241 (B.C.C.A.), refd to. [para. 35].

Irvington Holdings Ltd. v. Black et al. (1987), 20 O.A.C. 390; 58 O.R.(2d) 449; 35 D.L.R.(4th) 641; 14 C.P.C.(2d) 229 (C.A.), refd to. [para. 56].

Faux (J.W.) Ltd. v. Ontario Hydro et al. (1996), 10 O.T.C. 295 (Gen. Div.), refd to. [para. 56].

Seaboard Life Insurance Co. v. Bank of Montreal et al., [2002] B.C.T.C. 1272; 2002 BCSC 1272, refd to. [para. 62].

Kraus v. Fech et al., [2002] B.C.T.C. 1594; 2002 BCSC 1594, refd to. [para. 62].

Hung v. Gardiner, [2003] B.C.T.C. 285; 2003 BCSC 285, refd to. [para. 62].

Strata Plan LMS 1220, Owners v. North Fraser Holdings Ltd. et al., [2003] B.C.T.C. 1051; 2003 BCSC 1051, refd to. [para. 62].

Burrardview Neighbourhood Association v. Vancouver (City) et al., [2002] B.C.T.C. Uned. 571; 9 B.C.L.R.(4th) 334; 2002 BCSC 1770, refd to. [para. 63].

Brown v. Lowe et al., [2001] B.C.T.C. 105; 85 B.C.L.R.(3d) 162; 2001 BCSC 105, refd to. [para. 67].

Statutes Noticed:

Rules of Court (Yuk.), rule 1(10) [para. 60]; rule 37(1) [para. 66].

Counsel:

R.B. Davison, Q.C., and B. Churchill-Smith, Q.C., for the appellants;

R.P. Saul and D.G. Pankratz, for the re­spondents, Trans North Turbo Air Ltd. and Robert Brian Cameron;

P.R. Chomicki, Q.C., for the respondents, Almon Landair Ltd. and Summit Air Charters Ltd.

This appeal was heard on May 17, 18 and 19, 2004, at Vancouver, British Columbia, by Lowry, Smith and Thackray, JJ.A., of the Yukon Court of Appeal. The following decision of the court was delivered by Lowry, J.A., on June 15, 2004.