COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

R. v. Galbiati,

2014 BCCA 5

Date: 20140108

Docket: CA040368

Between:

Regina

Respondent

And

David Michael
Galbiati

Appellant

Before:

The Honourable Mr. Justice Donald

The Honourable Madam Justice Newbury

The Honourable Mr. Justice Lowry

On Appeal from an Order
of the Provincial Court of British Columbia, dated
August 30, 2012 (
R. v. Galbiati
, 2012 BCPC 378, Kamloops Registry No.
90078).

Counsel for the Appellant:

N.L. Cobb
R. Thirkell

Counsel for the Respondent:

P. Eccles

Place and Date of Hearing:

Vancouver, British
  Columbia

December 5, 2013

Place and Date of Judgment:

Vancouver, British
  Columbia

January 8, 2014

Written Reasons by:

The Honourable Madam Justice Newbury

Concurred in by:

The Honourable Mr. Justice Donald

The Honourable Mr. Justice Lowry

Summary:

Police executed a search
warrant at the appellants residence that authorized them to search for a
marihuana grow-op, related notes and records and documents re occupancy.  They
found marihuana and grow-op items and perused the appellants income tax
returns.  In so doing, police became suspicious that a proceeds of crime
offence may have taken place, and seized various vehicles belonging to the
appellant, as well as two stolen vehicles.  They also saw various firearms and
ammunition in plain view, which they seized.

The appellant was charged
only with the possession of marihuana for the purposes of trafficking and
improper storage of firearms.  He argued at trial that the search warrant had
been improperly executed and that
all
the evidence seized should be
excluded.  The trial judge agreed that the appellants vehicles had been
improperly seized, but admitted the evidence relating to the marihuana and
firearms charges.  She found that the police had not wilfully disregarded the
appellants rights.

On appeal: the trial judge
had not been shown to have erred, even if one regarded the police conduct as
one transaction, as opposed to four distinct investigations as the trial judge
suggested.  The evidence admitted had been obtained by means of a valid search
warrant and the admissibility of that evidence would not bring the
administration of justice into disrepute.

Reasons for Judgment of the Honourable
Madam Justice Newbury:

[1]

Mr. Galbiati appeals his convictions on one charge of possession of marihuana
for the purpose of trafficking, and one charge of unsafely storing firearms
contrary to the
Firearms Act
, S.C. 1995, c. 39 and
Regulations
.
These charges followed a search by police of his rural property on June 2,
2010.  The only substantive issue at trial was whether the evidence gathered by
the police at that time was admissible or whether it should be excluded as
contravening the appellants rights under s. 8 of the
Charter
.

[2]

Members of the Kamloops RCMP searched Mr. Galbiatis property outside
Kamloops on June 2, 2010 under the authority of a valid search warrant.
The warrant was directed solely to evidence of a marihuana grow-operation in
the residence and garage, notes and records relating to the growing of marihuana,
and documentation relating to occupancy.  The police found a pair of
concealed rooms that had previously housed a grow operation, and 19.1 pounds of
marihuana packaged for sale.  In addition to the grow-op items, they noticed
and seized 28 firearms and a great deal of ammunition that was unsafely stored
throughout the house and readily visible.

[3]

The officers also noted a Case backhoe and a Bobcat excavator on the
property.  Evidently, the VIN numbers were plainly visible on these vehicles.
The police searched the numbers and discovered that both vehicles were stolen
property.  The police seized them.

[4]

After the dismantled grow operation and marihuana had been located,
Sgt. Senner also perused copies of Mr. Galbiatis income tax returns
between 2002 and 2008 that were found in the house.  The sergeant formed the
opinion that the obvious high quality of Mr. Galbiatis home and assets
indicated an income well in excess of that reported in the tax returns, and decided
it would be appropriate to commence a proceeds of crime investigation.  The
police thereupon proceeded to seize various other vehicles and property
belonging to Mr. Galbiati on the basis that these items were evidence in
plain view relating to this new investigation.  They did not believe it was
necessary to obtain a new search warrant.

[5]

Mr. Galbiati was never charged with any offence relating to the
vehicles seized or any item taken from the property, nor with being in
possession of proceeds of crime.

[6]

Mr. Galbiati argued on the
voir dire
that
all
the
evidence seized, including the marihuana and the guns and ammunition, should be
excluded under s. 24 of the
Charter
on the basis that the officers
had gone far beyond the terms of the search warrant in seizing the two stolen
vehicles, in reading his income tax returns, and in seizing the other vehicles
(the ones that were
not
stolen) on the basis of a proceeds of crime
investigation.  In his submission, the search warrant had not been properly,
or reasonably, executed and all the evidence was in effect tainted.

[7]

In her ruling on the
voir dire
, the trial judge found that the
decision to pursue a proceeds of crime investigation was a reasonable one
undertaken in good faith.  At the same time, she found that the officers
belief that the further investigation did not require a new warrant was
mistaken, and that the resulting seizures had violated Mr. Galbiatis
rights under s. 8 of the
Charter
to be free from unreasonable
search or seizure.  This finding is not under appeal.

[8]

The trial judge said at para. 13 of her ruling that four distinct
investigations had occurred in the course of the execution of the search
warrant  the first, relating to the marihuana grow operation which was the
subject of the warrant; the second relating to the proceeds of crime evidence;
the third relating to the
Firearms Act
and
Regulations
; and the
fourth, a stolen equipment investigation.  Then, turning directly to the law
regarding s. 24, she described the appellants submission thus:

[Defence counsel at trial] argued that the seizures in this
case should not receive judicial acceptance. Sergeant Senner admitted that he
did not turn his mind to obtaining further warrants. He agreed that the
circumstances were not urgent and he could have obtained a warrant by
telecommunications or otherwise if necessary. [Counsel] argued that those
income tax documents, as dated as they were, would not have been sufficient for
a search warrant relating to a proceeds of crime investigation.

Compounding the breach is that no
charges resulted from the unlawful seizure from the investigation of the
proceeds of crime or the stolen property. There has been a significant delay
returning the vehicles with no explanation for that delay. Money subsequently
seized from Mr. Galbiati when he was arrested at the airport has never been
returned. The computer and PVR hard drive have never been returned.  [At paras.
24-5.]

[9]

The trial judge referred to
R. v. L.V.R.
2011 BCSC 1158, which
like this case involved the execution of a search warrant followed by the
seizure of items falling outside the parameters of the warrant.  In
L.V.R
.,
the warrant had been directed to the making and possession of child pornography,
but the police also seized a number of firearms and related equipment.  The
Court ruled that the evidence of the existence of the firearms was admissible
given the public interest in truth-finding, the reliability of the evidence,
and its importance to the Crowns case.

[10]

The judge also mentioned
R. v. Fawthrop
(2002) 161 O.A.C. 350
(C.A.), in which the Court considered s. 489(2) of the
Criminal Code
.
It allows the seizure of items not specified in a warrant where the person
executing the warrant believes on reasonable grounds that the items have been
obtained by or used in the commission of an offence.  The Court cited with
approval a definition of the common law plain view doctrine referred to by
Madam Justice Jackson in
R. v. Spindloe
2001 SKCA 58 as follows:

Plain view occurs when evidence
falls into the view of an officer who has a right to be in the position he is
in to have the view he has had; such items have been held to be subject to
seizure.  [At para. 29.]

From
Fawthrop
, the trial
judge in the case at bar concluded that:

Anything seized by the officers
in the execution of this warrant must either be contemplated by the warrant, or
it must have been immediately obvious to and discovered inadvertently by them
while executing that lawful warrant.  [At para. 33.]

[11]

The trial judge then formulated the question before her as whether
despite the lawful warrant those items lawfully searched and seized should be
excluded because of the [extent] and seriousness of the breach of Mr.
Galbiatis rights.  (Para. 34.)  Applying the well-known factors formulated in
R. v. Grant
2009 SCC 32, she emphasized that the evidence relating to
the grow operation had been obtained by virtue of a lawful warrant.  The firearms
and ammunition had been in plain view and were inadvertently discovered when
the police were executing the warrant, and the offence had been immediately
apparent.  (Para. 36.)

[12]

In connection with the stolen goods, she observed that their discovery
could not be described as inadvertent.  She continued:

What ought to have occurred at this point was for the
officers to write down the vehicle identification numbers because they were
readily visible. They were entitled to conduct their searches of those numbers
to determine if the equipment belonged to Mr. Galbiati.

Upon discovering that the
equipment was stolen, the police ought to have obtained a search warrant
pursuant to an investigation for stolen goods. Instead, they took the results
of the vehicle identification number searches and simply seized the property.
It is only this final step of seizure which constitutes a breach of Mr.
Galbiatis rights. The breach occurred because of the erroneous belief of the
police that because the vehicle identification numbers were in view they were
entitled to seize the items upon receiving the search results. The seizure was
done in good faith. I have no doubt that if a search warrant had been sought it
would have been granted, given the vehicle identification number search
results. As a result, I find that the breach was not a serious one and, if such
charges were before me, I would not exclude the evidence. As it happens,
charges are not before me because there was no evidence that Mr. Galbiati
acquired the equipment improperly or was aware that the equipment was stolen.  [At
paras. 37-8.]

[13]

The product of the proceeds of crime investigation was another matter:
although again the police had acted in good faith and, the trial judge stated, they
had been entitled to peruse the tax returns, the breach in this regard had
been more egregious.  She found that the police should have sought and obtained
another search warrant once they became suspicious.  Accordingly, she said, she
would have
excluded
this evidence pursuant to s. 24(2) of the
Charter
had a charge relating to proceeds of crime been before her.

[14]

As far as the evidence related to  the marihuana grow operation and the
firearms storage charge was concerned, however, the trial judge concluded that the
police had not wilfully disregarded Mr. Galbiatis rights and that:

The evidence lawfully seized
pursuant to the plain view doctrine respecting the improperly stored firearms
was properly seized. Similarly, all of the evidence seized pursuant to the
investigation into the marijuana grow operation was properly seized. Each of
these transactions under all four investigations are easily discernable and
allocated to those investigations. That being the case,
it would bring the
administration [of justice] into disrepute if that discrete evidence respecting
those discrete charges was not admitted into evidence.
[At para. 44;
emphasis added.]

and further:

As with the evidence that was
seized pursuant to a partially invalid search warrant in
R. v. Fawthrop,
supra
, I am satisfied that it would not bring the administration of justice
into disrepute if I admitted the properly seized evidence relating to the
marijuana grow operation and the properly seized evidence relating to the
firearms offences into evidence.
There were no breaches of Mr. Galbiatis
rights in respect of either of those charges under s. 8 of the
Charter
of Rights and Freedoms
.
Therefore, there should be no remedy available
to him pursuant to s. 24(2) of the
Charter of Rights and Freedoms
.  [At
para. 45; emphasis added.]

The Court proceeded to find the appellant guilty on the two
charges for reasons delivered on the same day as the reasons on the
voir
dire
.

On
Appeal

[15]

In this court, the appellant argues that the trial judge erred in
failing to find the appellants rights under s. 8 of the
Charter
were
breached, and  in failing to exclude all of the evidence seized on
June 02, 2010, pursuant to s. 24(2).  In his overview, Mr. Galbiati
submits that in notionally dividing what occurred into four distinct investigations
and in concluding that no
Charter
breach had occurred in respect of the
discovery of the marihuana and firearms, the trial judge erred in law by
requiring Mr. Galbiati to, in essence, establish a causal link between
the clear breach of his rights and the evidence upon which the Crown sought to
rely at trial on charges which they chose to prosecute.

[16]

On the latter point, counsel for the appellant, Mr. Cobb, argues
that an accused who is seeking to have evidence obtained in breach of the
Charter
excluded need not establish a causal connection between that evidence and the
violation; rather, he or she need establish only that a
Charter
violation
occurred in the course of obtaining the evidence.  Counsel drew our attention
to
R. v. Strachan
[1988] 2 S.C.R. 980, where the Court rejected the
argument that a strict causal nexus was required.  Instead, the Court said:

all of the pitfalls of causation may be avoided by adopting
an approach that focuses on the entire chain of events during which the C
harter
violation occurred and the evidence was obtained.  Accordingly, the first
inquiry under s. 24(2) would be to determine whether a
Charter
violation
occurred in the course of obtaining the evidence.
A temporal link between
the infringement of the
Charter
and the discovery of the evidence
figures prominently in this assessment
, particularly where the
Charter
violation
and the discovery of the evidence occur in the cause of a single transaction.
The
presence of a temporal connection is not, however, determinative.  Situations
will arise where evidence, though obtained following the breach of a
Charter
right, will be too remote from the violation to be obtained in a manner
that infringed the
Charter
There can be no hard and fast rule for
determining when evidence obtained following the infringement of a
Charter
right
becomes too remote.

If a
Charter
violation has
occurred in the course of obtaining the evidence, the analysis will proceed to
the second, and in my view
the more important, branch of s. 24(2)
,
whether the admission of the evidence would bring the administration of justice
into disrepute.  [At 1005-6; emphasis added.]

(See also
R. v. Plaha
(2004) 188 C.C.C. (3rd) 289 at paras.
44-5 and
R. v. Lauriente
2010 BCCA 72 at para. 36.)

[17]

The Crown does not challenge the fact that a causal link between the
infringement and the discovery of the evidence is unnecessary for a breach of
s. 8 to be established, but submits that the trial judge did not require
one.  It argues that a more general remoteness analysis is mandated by the
case law, under which the court must consider all the connections between the
breach and the discovery of evidence: see
R. v. Perjalian
2011 BCCA 323
at para. 66,
R. v. Pettit and Pranic
2003 BCCA 522, at paras. 20-1.
Relying on these authorities, the Crown contends that there was obviously a
temporal connection between the evidence in question
−
the marihuana and related items and the
firearms and ammunition
−
and the subsequent breach(es), but that the connection was sufficiently remote
that the admission of this evidence would not bring the administration of
justice into disrepute.

[18]

It seems to be implicit in the Crowns submission that this case turns on
the second branch of the analysis described in
Strachan
−
whether the admission
of the evidence would bring the administration of justice into disrepute, rather
than whether a breach of s. 8 occurred at all.  However, I do not think it
was unreasonable for the trial judge to posit four separate investigations
based on the four different kinds of offences they suspected.  In this regard,
the Crown cited various cases in which the severability of valid portions of
a search warrant from invalid portions was approved: see
Fawthrop
,
supra
,
and
R. v. Chuhaniuk
2010 BCCA 403, where an all or nothing approach
was said not to be appropriate.  (At para. 92.)  On this basis, there is
some doubt in my mind as to whether the evidence relating to the charges
brought against Mr. Galbiati was obtained in a manner that infringed his
s. 8 rights, notwithstanding the breach(es) with respect to the seizure of
his vehicles.  As the judge observed, the marihuana and firearms evidence was
obtained on the strength of a valid search warrant that had been executed prior
to any breach.

[19]

Even if one assumes, however, that the marihuana items, firearms and
ammunition were found and seized as part of one overall transaction in which
the other items were also seized, I am not persuaded we should interfere with
the trial judges conclusion that the admission of the marihuana items and firearms
into evidence would bring the administration of justice into disrepute.  The
Courts review of the
Grant
factors in this case has not been shown to
be erroneous.  The Court found that the items of property seized by the police
had been in plain view, and that the RCMP had acted in good faith.  As the
Crown submits, if the RCMP had stopped and obtained a warrant before searching
the VIN numbers on the two vehicles, they almost certainly would have obtained
one.  There was no suggestion their conduct was part of an overall pattern of
short-cuts or failures to respect the constitutional rights of persons
encountered by the police in the course of their exercise of their duties.
(See
R. v. Burlingham
(1995) 2 S.C.R. 206, at para. 50.)  The
trial judge found no wilful disregard of Mr. Galbiabtis rights.

[20]

On a more general level, the impact on the accused, societys interests
in the adjudication of the criminal charges on their merits, and the overall balancing
of the public interest in admitting or excluding the evidence in question must
also be considered.  While there can be no doubt that, as Mr. Cobb contends, a
search warrant should not be turned into an unfounded general inquisition or
an unreasonable search (see
R. v. Mellenthin
[1992] 3 S.C.R. 615 at
624, discussing random stop programs), I find it difficult to disagree with
the trial judges conclusion that it would bring the administration of justice
into disrepute if the evidence relating to the two charges were excluded.
Society has an interest in having the charges adjudicated, and even if the
firearms charges were regulatory and at the less serious end of the spectrum
as counsel suggests, the consequences of Mr. Galbiatis failing to store
the guns and ammunition properly could be serious indeed.  Nor do I agree that
societys interest in a trial on the merits is comparatively low as Mr. Cobb argues.

[21]

In all the circumstances, including the deference owed to the findings
of the trial judge, I see no basis on which we should interfere.  I would
therefore dismiss the appeal.

The
Honourable Madam Justice Newbury

I AGREE:

The Honourable Mr. Justice
Donald

I AGREE:

The Honourable Mr. Justice
Lowry


COURT OF APPEAL FOR BRITISH
COLUMBIA

Citation:

Slater Vecchio LLP v. Cashman,

2014 BCCA 6

Date: 20140108

Docket:
CA040637

Between:

Slater Vecchio LLP

Appellant

(Solicitor)

And

Fred Cashman

Respondent

(Client)

Corrected
Judgment
: The text of the judgment was corrected at
paragraph [49] in the last section of quotation: a duplicated sentence
was removed on January 14, 2014.

Before:

The Honourable Mr. Justice Chiasson

The Honourable Mr. Justice Tysoe

The Honourable Mr. Justice Goepel

On appeal from:  An
order of the Supreme Court of British Columbia, dated
January 31, 2013 (
Slater Vecchio LLP v. Cashman
, 2013 BCSC 134,
Vancouver Docket S110853).

Counsel for the Appellant:

D.G. Cowper, Q.C.
A.I. Nathanson

Counsel for the Respondent:

G.T. Palm
D.A. Hunter

Place and Date of Hearing:

Vancouver, British
  Columbia

November 28, 2013

Place and Date of Judgment:

Vancouver, British
  Columbia

January 8, 2014

Written Reasons by:

The Honourable Mr. Justice Chiasson

Concurred in by:

The Honourable Mr. Justice Tysoe

The Honourable Mr. Justice Goepel

Summary:

The appellant law firm
appeals the decision of a Supreme Court judge dismissing its appeal from a
masters order requiring the appellant to return a fee paid to it at the
conclusion of a tort action on the basis that the retainer agreement between
the appellant and the respondent was an entire contract, pursuant to which
the appellant was obliged to conclude both the tort action and the respondents
claim for benefits under Part 7 of the Regulations to the Insurance
(Vehicle) Act.  At the conclusion of the tort action, the parties and lawyers
who previously had acted for the respondent, negotiated a settlement agreement
for fees payable in relation to the tort action.  The appellant contends that
the settlement agreement amended or supplanted the retainer agreement, that the
retainer agreement was not an entire contract and that respondent is estopped
from claiming the return of the fee paid under the settlement agreement.  Held:
appeal allowed.  The settlement agreement amended or supplanted the retainer
agreement.  It is questionable whether the retainer agreement was an entire
contract.  The estoppel issue is not addressed.

Reasons
for Judgment of the Honourable Mr. Justice Chiasson:

Introduction

[1]

This is an appeal from the decision of a Supreme Court judge dismissing
an appeal from a masters order requiring the appellant to return a fee paid to
it at the conclusion of a tort action on the basis that the retainer agreement
between the appellant and the respondent was an entire contract, pursuant to
which the appellant was obliged to conclude both the tort action and the
respondents claim for benefits under Part 7 of the Regulations to the
Insurance
(Vehicle) Act
, B.C. Reg. 447/83 (the Part 7 action).

Background

[2]

The respondent was injured seriously in a collision between a motor
vehicle and the bicycle he was riding.  He sued the driver and owner of the
motor vehicle who was represented by the Insurance Corporation of British
Columbia (ICBC) in a tort action and he sued ICBC for benefits in the Part 7
action.  Initially, the respondent, who is a lawyer, represented himself, but
eventually he retained the firm of Brown Benson to act for him.  He became
unhappy with that firm and retained the appellant firm.

[3]

Prior to retaining the appellant, a substantial amount of work had been
done on the tort action, including setting a trial date.  Little had been done
on the Part 7 action.  At the time of the transfer, the respondent was
seeking the policy limits of $1 million in the tort action; the highest
offer from the defendants was $400,000.

[4]

Brown Bensons files for both actions were sent to the appellant and
Notices of Change of Solicitor were filed.  The appellant agreed to protect the
fees and disbursements of Brown Benson.

[5]

On January 13, 2009, the parties entered into a retainer agreement.  It
stated:

I, Frederick George Cashman, authorize the law
firm of Slater Vecchio LLP to act as my solicitors with respect to my claim for
damages incurred as a result of personal injuries and other losses arising out
of a motor vehicle accident on July 26, 2005.

I agree to pay to
the law firm of Slater Vecchio LLP the following:

(a)        legal
fees of 33-1/3 % of the amount recovered by settlement or at trial;

(b)        all
disbursements incurred in prosecuting my case. I also agree to pay interest on
all disbursements paid on my behalf by Slater Vecchio LLP at the rate of 10
percent per annum;

(c)        the
Social Services Tax and Goods and Services Tax applicable to the fee.

I confirm that I
have been advised of the following:

A.         This
Agreement may be terminated within 90 days from the date of the Agreement or
within 90 days of the termination of the retainer with Slater Vecchio LLP by
application to the District Registrar of the Supreme Court of British Columbia
to have the Agreement reviewed, notwithstanding that payment has been made to
Slater Vecchio LLP under the Agreement;

B.         The
Rules of the Law Society of British Columbia provide that, subject to the
Supreme Court approving higher remuneration, the maximum compensation to which
a lawyer is entitled in a claim for personal injury arising out of the use or
operation of a motor vehicle is 33-1/3% of the total amount recovered.

C.        This
percentage limit applies to all matters related to the trial of a lawsuit, but
does not include any appeal. A lawyer and a client may make a separate
agreement for legal fees for an appeal.

D.        Fees charged by different
lawyers vary.

[6]

It is common ground that the retainer agreement covered both actions.  The
appellant advised the respondent that, but for the need to protect the fees of
Brown Benson, the percentage payable under the agreement would have been
somewhat less.

[7]

In June 2010, the appellant obtained settlement of the tort action for
the policy limits of $1 million.  The Part 7 action was not part of
the settlement.

[8]

The fees related to the tort action totaled $333,333.  The appellant proposed
a split of 60/40 in favour of the appellant to Brown Benson.

[9]

Difficulties arose concerning the fees payable to Brown Benson.  The
respondent questioned the firms entitlement to fees.  He retained Mr. Gordon
Turriff, Q.C., to represent him with respect to Brown Bensons claim for fees.
Mr. Turriff did not act for the respondent with respect to the appellants
fee.  The respondent advised that he was prepared to pay a global fee of
$250,000.  He wanted to tax the account of Brown Benson.

[10]

After negotiations, on November 10, 2010 it was agreed by Brown
Benson, the appellant and the respondent that Brown Benson would receive
$71,800 and the appellant $180,000, plus taxes.  This arrangement is called the
settlement agreement.

[11]

In January 2011, the respondent left a telephone message with the
appellant inquiring about the status of the Part 7 action.  On January 19,
2011, the appellant advised the respondent that no steps had been taken in the
Part 7 action and that, having reviewed the action, the appellant was not
prepared to act further for you on it.  The respondent replied on January 20,
2011, stating:

Gentlemen:  That is not how I
read the contract.  It does not say that you only get to do what you deem to be
the easy stuff, but that you will act with respect to my claim for damages
incurred as a result of personal injuries and other losses arising out of a
motor   In short it is not proper that you cherry pick the claim and when the
easy part is done then decide to give up on the claim without a fight.  I object
to your withdrawal and do not consent to this breach of contract.  I did not
say that I was not advancing a claim for Part 7 nor did I refuse to
cooperate with ICBC.  They offered help with rehab which I did not need as I
was getting lots of help.  They never asked for any cooperation nor did they
complain that I was not cooperating.  The fee agreement was to do everything
and not just that which you believed was worth pursuing.  The contract is Whole
contract and has yet to be completed.

[12]

The appellant responded that day as follows:

Fred,

With respect, we disagree.  We are under no compulsion to
continue to act.  Any party can terminate the contract and we are doing so at
this time.

Our withdrawal at this time causes no harm or prejudice to
you.  There are no pending trial or discovery dates.

We have received no compensation and seek no compensation for
legal work on the Part 7 claim.

If you believe that you have a
good claim against ICBC under Part 7, you will have no difficulty
obtaining counsel to pursue it on your behalf.

[13]

The respondent did not accept this position.  On February 1, 2011,
his counsel wrote to the appellant advising that the respondent considered that
the appellant had repudiated the retainer agreement, that the respondent
accepted that repudiation and demanded repayment of $201,600, the total of fees
and taxes paid previously to the appellant.  On February 9, 2011, the
respondent brought proceedings for a review of the appellants account.  The
appellant agreed it did not have cause to terminate the retainer agreement.

The masters decision

[14]

The following issues were considered in the proceeding before a master
of the court and noted by the judge on appeal:

Issue 1:     Was the retainer agreement between the
Solicitors and the Client (the Agreement) an entire contract by which the
solicitors were obligated to prosecute both the Clients tort action and his
Part 7 action to their respective conclusions in order to be entitled to
any fee?

Issue 2:     If so, then did the Solicitors and the Client, in
or about early November of 2010, either

(a)        make a new agreement and
discharge the Agreement; or

(b)        amend the Agreement;

such that the Solicitors were no longer required to prosecute
both the Clients tort action and his Part 7 action to their respective
conclusions in order to be entitled to any fee?

Issue 3:     If not, then by virtue of dealings in or about
early November 2010 is the Client estopped from recovering the fee paid to the
Solicitors?

Issue 4:     If not, then did
the Solicitors breach the Agreement by withdrawing their services without cause
prior to prosecuting the Clients Part 7 action to its conclusion such
that the Solicitors are not entitled to any fee?

The master found against the appellant on each of these
issues.  He certified that $220,613.33 was due from the appellant to the
respondent.

The chambers decision

[15]

Although the appellants first ground of appeal before the judge was the
effect of the settlement agreement, the judge first addressed whether the
retainer agreement was a single contract.  In her view, it was.  She concluded
that the legal effect of the agreement was that the appellant:

undertook an entire obligation
to [the respondent]  to represent him in relation to his
claim
 and
had no entitlement to the fee payable under the Agreement until [it] had
performed [its] part, all of it. [Emphasis in original.]

[16]

The judge reviewed the applicable law and the conclusions of the master
and stated at paras. 51-52:

[51]      Of course, Slater Vecchio was in fact going to be
acting as Mr. Cashmans solicitors in two separate actions.  But this does
not answer the question concerning the proper legal effect to be given to the
Retainer Agreement.  No doubt the Retainer Agreement
could
have been
drafted to express the objective intention that Slater Vecchios obligations to
act for Mr. Cashman in respect of the Tort Action and the Part 7
Action were separate and divisible and that the firm was entitled absolutely to
be paid its fee in respect of one Action once that Action was concluded,
whatever the status of the other.  That, essentially, is the legal effect Mr. Nathanson
argues should be given to the Retainer Agreement, despite the use of the word
claim and other singular nouns in the document.

[52]      But is that the
legal effect of what the parties actually said in the Retainer Agreement?  This
is a question of law.  In my opinion, applying the legal principles I have
summarized above, it is not.  In my view, based on the Masters findings
concerning the meaning of the words in the Retainer Agreement and the factual
matrix, the legal effect of the Retainer Agreement is that Slater Vecchio
undertook an entire obligation to Mr. Cashman  to represent him in relation to
his
claim
 and had no entitlement to the fee payable under the
Agreement until they had performed their part, all of it.  In my opinion, this
is the objective intention expressed by the words the parties used in the
Retainer Agreement.

[Emphasis in original.]

[17]

Turning to the settlement agreement, the judge addressed the position of
the appellant.

[55]      In the Reasons, the
Master said in respect of Issue 2, at para. 71:

[N]either of the parties turned
their minds to whether or not they were about to either make a new Agreement or
amend the [Retainer] Agreement. Accordingly, in the absence of some evidence of
actual intent to alter or amend the [Retainer] Agreement rather than by
implication, I find neither occurred.

[56]      Mr. Nathanson submits that the Settlement Agreement
is a contract in its own right and must be given effect, even if it departed
from the terms of the Retainer Agreement.  In Mr. Nathansons submission
the Settlement Agreement, by its own undisputed terms,
did
amend the
Agreement.  He says that the Master found (in para. 42 of the Reasons)
that it was an agreement by Cashman to pay  $180,000 plus taxes to Slater
Vecchio
in settlement of Slater Vecchios entitlement to a fee for the tort
action
 [emphasis added by Mr. Nathanson], instead of the 33 1/3% of
the amount recovered, as provided for in the Retainer Agreement.  Mr. Nathanson
argues that the Masters references to the parties actual intent and
turn[ing] their minds to the effect of the Settlement Agreement can only
refer to evidence of the parties subjective intentions.  Mr. Nathanson
says that the Master erred by focussing on what he perceived to be the parties
subjective intentions, instead of having regard to the terms of the Settlement
Agreement itself.

[57]      However, I do not read para. 71 of the Reasons
in the same way as Mr. Nathanson.

[58]      The question concerning the Settlement Agreement is
the same as with any other contract:  at the time the Agreement was made, what
were the parties true intentions, considered objectively.  Therefore, I read
the adjective actual in para. 71 as synonymous with true, thus showing
that the Master was concerned to determine what, objectively, were the parties
true intentions at the time the Settlement Agreement was made.  I do not read
para. 71 as indicating that the Master either focussed on, or required,
evidence of either partys subjective intent, which is inadmissible.

[59]      Moreover, in my
opinion, the Masters statements in para. 71 constitute a finding that the
terms of the Settlement Agreement did not include a term whereby the Retainer
Agreement was either altered or amended.  It was for the Master to make
findings concerning the terms of the Settlement Agreement, and his findings are
entitled to deference on appeal.  The Master did not fail to give effect to the
Settlement Agreement.  Rather, he gave effect to the Settlement Agreement based
on his findings concerning the terms, and with the goal of determining what,
objectively, were the parties true intentions at the time the Agreement was
made.

[Emphasis in original.]

[18]

The appellant contended the masters decision was inconsistent because
he stated at para. 42 of his reasons that $180,000 plus taxes was paid to
the appellant in settlement of [its] entitlement to a fee for the tort action.
The judge rejected this contention, stating at para. 61:

The parties themselves did not
use the word entitlement.  The Masters use of the word entitlement in
para. 42 of the Reasons has to be understood in its proper context.  The
Master described the fee dispute as one between Brown Benson and Slater
Vecchio as to what their respective fees would be.  The Master found (Reasons,
para. 4) that the fee dispute was finally settled when Slater Vecchio agreed
to take $20,000.00 less than Mr. Cashman had suggested, and the
agreement was to be final in that Mr. Cashman would not tax the accounts
of Brown Benson.  In that context, the Masters use of the word entitlement
in para. 42 is not inconsistent with his finding that the Settlement
Agreement did not alter or amend the Retainer Agreement, or with his conclusion
that the Retainer Agreement described an entire obligation.

The judge
continued at paras. 62 and 63:

The primary aim of the transaction that resulted in the
Settlement Agreement  was to settle Mr. Cashmans dispute with Mr. Deering
concerning the fee to be paid to Brown Benson.  This is highlighted by Mr. Turriffs
November 4 message to Mr. Gordon and Mr. Deering.  Since Mr. Cashman
had terminated Mr. Deerings retainer, there were no issues concerning
entire or divisible obligations in relation to Brown Benson.  Even if
(hypothetically) Slater Vecchio had the ability at the conclusion of the Tort
Action to bill 33 1/3% of the recovery to Mr. Cashman, it did Slater
Vecchio little good, for the reasons Mr. Turriff described.

The Settlement Agreement settled,
finally, the dispute between Mr. Cashman and Mr. Deering concerning the
fee to be paid to Brown Benson.  It also settled, finally, the allocation
between Brown Benson and Slater Vecchio.  To put it another way, it settled
Brown Bensons and Slater Vecchios respective entitlements, as between one
another.

[19]

The judge considered the dealings between the appellant and the
respondent as part of the factual matrix of the settlement agreement.  She
concluded this did not assist the appellant.

[20]

The judge then turned to the appellants assertion that the respondent
is estopped from recovering the fee paid to the appellant.  In her view, it was
more likely that estoppel would apply against the appellant than the respondent
because the appellant had a duty to advise the respondent on the effect of the
settlement agreement if that agreement is interpreted to deprive the respondent
of his rights under the retainer agreement.

[21]

The appeal from the master was dismissed.

Positions of the
parties

[22]

The appellant contends that the judge erred in law in failing to give
effect to the settlement agreement and in concluding that the retainer
agreement was an entire contract.  It also asserts that the judge erred in law
and in principle in concluding that the respondent was not estopped from
recovering the fee paid to the appellant.

[23]

The respondent states that the issue is whether the judge erred by not
interfering with the conclusions of the master.  He supports the judges
analytical approach of dealing first with the retainer agreement as providing
the necessary context to consider the effect of the settlement agreement.

Discussion

[24]

As noted, the judge first considered (at para. 39) whether the
retainer agreement was an entire contract.  In her view, it provided:

the necessary context in which
to consider what effect should be given to the Settlement Agreement, and
whether the Master made any reversible error in that respect.

[25]

Although I see some danger of conflating the consideration of each
agreement, in the circumstances of this case logically, the judges approach
was sensible because if the retainer agreement was not an entire agreement,
there would be no need to construe the settlement agreement.  Having concluded
that the retainer agreement was an entire contract, the foundation for
considering the effect of the settlement agreement was laid.

[26]

I intend to consider the settlement agreement first.  For this analysis,
I shall assume that the retainer agreement was an entire contract as found by
the judge.

Settlement agreement

[27]

The issue is whether the retainer agreement is amended or supplanted by
the settlement agreement.  That is, as the appellant frames the question, was
the settlement agreement inconsistent with the obligation of the appellant to
complete both actions before it had a right to the payment of its fee for the
tort action?

[28]

Three issues arise: whether the judge erred in concluding that:

1.       the master did
not err by focusing on the subjective intention of the parties;

2.       the masters
reasons are not inconsistent;

3.       there
was no dispute between the appellant and the respondent; the settlement
agreement only resolved the dispute between the respondent and Brown Benson.

These issues are interrelated.

[29]

In para. 42 of his reasons, the master stated:

On November 10, 2010, Slater
Vecchio, Brown Benson and Mr. Cashman, through his counsel, Mr. Turriff,
reached an agreement to resolve the Fee dispute (the Settlement Agreement).
The Settlement Agreement provided that Cashman agreed to pay $71,800 plus taxes
to Brown Benson in settlement of Brown Bensons entitlement to a fee and a
further $180,000 plus taxes to Slater Vecchio in settlement of Slater Vecchios
entitlement to a fee for the tort action. Turriff confirmed this in an e-mail
of the same date.

[30]

As I read her reasons, the judge accepted this paragraph as articulating
the settlement that was reached, although she declined to read the statement
as a finding by the Master that a fee dispute existed between [the respondent]
and [the appellant] (at para. 24).

[31]

In para. 71 of his reasons, the master stated:

As well, in my view, neither of
the parties turned their minds to whether or not they were about to either make
a new Agreement or amend the Agreement. Accordingly, in the absence of some
evidence of actual intent to alter or amend the Agreement rather than by implication,
I find neither occurred.

[32]

The first two issues noted above arise out of the judges consideration
of paras. 42 and 71 of the masters reasons.  The judge concluded that the
masters comments that the parties did not turn their minds to whether they
were making a new agreement or amending the retainer agreement and that there
was no evidence of actual intent was synonymous with true intentions,
considered objectively (at para. 58).  She stated that the parties did
not use the word entitlement, which the master used in para. 42, and
that his conclusion in para. 71 that the settlement agreement did not
alter or amend the retainer agreement was not inconsistent with his use of the
word entitlement because the dispute was between the respondent and Brown
Benson and not between the respondent and the appellant (at para. 61).

[33]

As noted previously, the judge stated at para. 62:

The primary aim of the
transaction that resulted in the Settlement Agreement was to settle [the
respondents] dispute  concerning the fees to be paid to Brown Benson.

I consider this comment to be pivotal to the judges
conclusion that the master did not err.  In my view, the comment understates
what occurred.  I begin with some preliminary observations.

[34]

In my view, the masters comments in para. 71 do suggest that he
focused on the subjective intent of the parties, but the more important issue
is the need to examine the effect of the settlement agreement, if any, on the
retainer agreement.

[35]

The respondent asserts that the question is whether the settlement
agreement relieved the appellant from completing the Part 7 action, but
that is not the appellants position and it is not the issue.  The question is,
assuming that the retainer agreement was an entire contract, is the settlement
agreement consistent with the implied term in the retainer agreement that the
appellant was not entitled to payment of its fee for the tort action until the
Part 7 action was complete?  To answer that question, it is necessary to
look at the factual matrix of the settlement agreement and the words used by
the parties.

[36]

Shortly after the tort action was settled, the appellant and Brown
Benson had communications concerning the split of fees between the two firms.

[37]

On September 2, 2010, the appellant advised the respondent:

We confirm [your] advice to us
that you wish to challenge Brown Bensons entitlement to its share of the fee.
We are not part of that dispute.  We propose that you, Slater Vecchio and
Mr. Deering reach an agreement on the appropriate portion of the $330,000
fee that will be paid to Slater Vecchio so that we can render and pay our fee
account.  The balance of the funds can be held in trust until the fee dispute
between you and Mr. Deering/Brown Benson is resolved.

[38]

The respondent agreed with a 60/40 split in favour of the appellant.  He
intended to reserve his right to tax the account of Brown Benson.  The
appellant advised Brown Benson of this and asked the firm to agree to a 60/40
split so we can render and pay our account.  As requested by the respondent, Mr. Turriff
was copied with the appellants letter.

[39]

On September 27, 2010, Mr. Turriff wrote to Brown Benson and sent a
copy to the appellant.  Mr. Turriff urged the resolution of the split
between the two firms stating that [u]ntil the division is decided (or, I
suppose otherwise determined), neither of you can bill [the respondent].

[40]

On November 4, 2010, Mr. Turriff wrote to both the appellant and Mr. Deering,
who was the lawyer, formerly at Brown Benson, who had acted for the respondent.
 He urged agreement on the split between the firms as a starting point because
[u]nless the split is agreed, neither [firm] can know what to bill [the
respondent].  He continued:

I suppose that [the appellant]
could bill [the respondent] the whole contingency fee but if it did it couldnt
safely pay itself until it knew what fee [the respondent] would owe [Brown
Benson].

[41]

Mr. Turriff left a message with the appellant stating that he
misunderstood the respondents instructions and that the respondent wanted the
fee reduced from $333,333 to $250,000 with $50,000 going to Brown Benson and
$200,000 to the appellant.  This was followed by an e-mail from Mr. Turriff
to the appellant on November 8, 2010 in which he assured the firm that the
respondent wants you to receive your proper entitlement as soon as possible.

[42]

As noted, on November 10, 2010, Mr. Turriff wrote confirming a
settlement.  He stated:

I confirm that [Brown Benson]
offered to accept a fee of $71,800.00 and that [the respondent] has accepted
that offer and that [the respondent] and [the appellant] have agreed that [the
appellants] fee will be $180,000.00. HST on top.

In another communication that day, Mr. Turriff advised
the appellant that [y]our entitlement is $180,000.00 plus HST of $21,600.00.

[43]

On November 12, 2010, the appellant sent $90,747.08 representing payment
of the balance of settlement proceeds to the respondent together with its
account in accordance with the settlement agreement.  The account describes the
fee as [p]ayable to [the appellant].  These circumstances are consistent with
the masters finding in para. 42 of his reasons and with his use of the
word entitlement in that paragraph.

[44]

The judge erred stating that [t]he parties themselves did not use the
word entitlement (at para. 61).  Clearly, Mr. Turriff did so, as
did the respondent.  He stated in cross-examination at the hearing before the
master:

Q          What you had instructed Mr. Turriff to
propose was 200,000 to Slater Vecchio and 50,000 to Brown Benson.

A          Yeah, I think thats right.  Yes.

Q         And implicit in that was that would be a final
deal, with no review of Brown Bensons fee.

A          Absolutely.

Q         And you proposed that on the basis that that
was in line with this discussion that you had with Mr. Slater in June,
2010.

A           I dont know if
I discussed or what I said to Mr. Slater in June, 2010, at that time.  It
was in line with my belief that Mike was entitled to 60 percent of the full
fee, which would be about 200 grand.

[45]

The respondent was well aware of the concept of entire contract.  He
referred to it when rejecting the appellants refusal to continue with the Part 7
action.  Under cross-examination he stated:

Q         And you argued cases that involved this entire
contract principle?

A          Yes.

Q         In fact you said to Mr. Palm in direct
that you discussed that concept with Mr. Turriff at times?

A          Certainly.

Q         And your view of the law was that it was
perhaps unnecessarily strict that lawyers would not be entitled to any fee if
they withdrew in breach of an entire contract.

A.         Yes.

Q         When you wrote the e-mail that Mr. Palm
showed you, the cherry-picking e-mail, you referred to this entire whole
contract principle; correct?

A          I did.

Q         You didnt need to do any research before
writing that e-mail.

A          No.

Q         Because you were aware of the general nature
of this legal principle.

A          I had been for
years, yes.

In the communications leading to the settlement agreement,
there was no suggestion that the appellant was not entitled at that time to
payment of its fee for the tort action.  In my view, it is clear on the
evidence that the parties proceeded on the basis it was so entitled.

[46]

While there may not have been a dispute between the appellant and the
respondent, it was in the individual best interests of the parties to resolve the
tort fee issue.  Brown Benson wanted to be paid and wanted to avoid a further
battle with the respondent at a taxation of its account.  It compromised its
entitlement.  The appellant wanted to be paid and could not be paid until the
issue between the respondent and Brown Benson was resolved.  It compromised its
entitlement even to the extent of accepting less than the $200,000 proposed by
the respondent.  The respondent wanted the balance of settlement money because
he was leaving for Europe.  Although he wanted Brown Benson to get nothing, he
agreed to a reduced fee payable to Brown Benson and gave up his right to tax
the firms account.

[47]

In my view, it is clear that objectively the agreement was as stated by
the master in para. 42 of his reasons.  It was an agreement to resolve the
fee dispute; to have the two law firms paid on a basis acceptable to the
respondent.  Whether the parties turned their minds to the effect of the
agreement on the retainer agreement does not alter the fact that they agreed on
a compromised payment of fees for the tort action.  That agreement was not
consistent with any implied term in the contingency agreement that the
appellant was not entitled to a fee for the tort action until it completed the
Part 7 action.  There is nothing to that effect in the terms of the
settlement agreement or in the course of dealings between the parties that led
to it.

Entire agreement

[48]

Having concluded that the retainer agreement was amended or supplanted
by the settlement agreement, it is not necessary to determine whether the
retainer agreement was an entire contract.  That said, I think it remains an
open question as to whether the legal principles governing entire contracts
apply to retainer agreements which cover multiple proceedings which individually
can be concluded with the client succeeding or failing irrespective of the
actual or potential results of other proceedings.

[49]

The judge did not address the law dealing with entire contracts.  In its
factum, the appellant did so:

A contract or obligation is said to be entire when complete
performance is required before any duty to pay, usually a lump sum, arises.
Where there is only partial performance under an entire contract, the court
may not rewrite the parties bargain so as to provide for
pro rata
compensation.
As learned authors explain, the term entire contract is itself misleading:
one contract may include several divisible obligations. Obligations are
divisible where different parts of the consideration can be assigned to
severable parts of the performance.

The entire obligation principle is illustrated by the
following classic examples.  If a shoemaker agrees to make a pair of shoes he
cannot deliver one to you and ask for half the price.  Similarly, if a man
engages to carry a box of cigars from London to Birmingham, it is an entire
contract, and he cannot throw the cigars out of the carriage half-way there,
and ask for half the money.

Whether an obligation is entire or divisible is a matter of
construction of the parties agreement in light of all of the circumstances.
If an obligation is divisible or severable, there is an express or implied
agreement that payment will be made in proportion to the extent of
performance.

As a general matter, it is an
implied
term of a retainer agreement that the solicitor will bring the action to an
end, whether by settlement or judgment.  A retainer to prosecute an action is
considered an entire contract or entire obligation because the client gets
no benefit until a judgment or settlement has been obtained.  It follows that,
unless the client agrees otherwise
, the solicitor is not entitled to any
fee  until he or she has completed the work [emphasis added].  This implied
term can be ousted by agreement.

[Citations omitted.]

I agree with these comments.

[50]

It is apparent that the foundation of the entire contract concept in the
context of a retainer agreement is an implied term that the lawyer will be paid
only at the end of the retainer.  Where the retainer involves a number of
discrete proceedings, where there is a recovery in a proceeding the mischief addressed
by the entire contract principle, the risk that the client will obtain no
benefit from part performance of the retainer, does not apply.  There would
appear to be no principled reason why the lawyer is not entitled to his agreed
fee even in circumstances in which there may be additional work to be done on
other proceedings.

[51]

In the present case, the master and the judge focused on language in the
retainer agreement that was singular: claim, case, amount.  That language
supports the contention that the retainer agreement was a single contract, but,
in my view, arguably it was not.  Taking into account all of the circumstances,
the retainer agreement certainly could be construed as a contract embracing
discrete undertakings.  This is consistent with the substance of the agreement:
the prosecution of two separate, legally diverse actions that provided separate,
realizable benefits to the respondent.  In the case of the tort action, the
benefit was realized completely by the respondent.  Arguably, the surrounding
circumstances and the substance of the retainer agreement lead to a conclusion
different from the language of the document.  The issue illustrates the need
for greater care drafting retainer agreements.

Estoppel

[52]

It is not necessary to address the estoppel issue and I decline to do
so.

Conclusion

[53]

I would allow this appeal, set aside the order of the Supreme Court,
allow the appeal from the masters order and set aside the Certificate of Fees
entered July 18, 2012.

[54]

The appellant seeks an order requiring the master to issue a Certificate
of Fees in the amount of $251,800 (an amount that includes the Brown Benson
fee).  The fee that was assessed was the appellants fee, which was $201,600.
It is that amount that was addressed in the Certificate of Fees.

[55]

I would order the Registrar to issue a Certificate of Fees in an amount
to be agreed by the parties or as directed by this Court if the parties are
unable to agree.

The Honourable Mr. Justice Chiasson

I agree:

The
Honourable Mr. Justice Tysoe

I agree:

The
Honourable Mr. Justice Goepel


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