Now that the trial to determine who is responsible to pay for the windows/doors project is going ahead in June 2019, there are a number of steps along the way that need to happen, mostly in relation to the exchange of evidence for the trial. Often the parties cannot agree to how and when these steps should occur, so they need to apply to the court to guide them.
In our case, there are many things the parties disagree about, and so I've filed a Notice of Case Planning Conference, set for April 12, 2018, so I can ask a Master or a Judge to make orders to guide the litigation process.
This is actually the second Case Planning Conference, but the first was prior to Westsea's application to strike my Notice of Civil Claim (which they subsequently lost), and at the time of the first Case Planning Conference, we agreed to put certain matters on hold pending the outcome of Westsea's application.
So for this second Case Planning Conference, in addition to asking for orders about the exchange of documents and examinations-for-discovery of certain key witnesses from Westsea, I also want to ask the justice to order that Westsea cannot charge its own litigation costs to leaseholders prior to the trial (see link above, item #5). Of course, the issue of whether they can charge those costs at all under the lease needs to be re-litigated, further to the Court of Appeal decision, but my argument here that Westsea cannot "pre-charge" its litigation costs derives from the BC Supreme Court Civil Rules.
First, under Rule 5-3(1)(v), a judge or master at a case planning conference can make:
Rule 5-3 — Case Planning Conference - Orders
(1)(v) any orders the judge or master considers will further the object of these Supreme Court Civil Rules.
From there, the authority to limit Westsea's apparent attempt to charge litigation costs prior to the trial falls under Rule 14-1.
Rule 14-1 Costs
Costs to follow the event
(9)Subject to subrule (12), costs of a proceeding must be awarded to the successful party unless the court otherwise orders. [my emphasis]
(13)If an entitlement to costs arises during a proceeding, whether as a result of an order or otherwise, those costs are payable on the conclusion of the proceeding unless the court otherwise orders. [my emphasis]
When costs payable
(13)If an entitlement to costs arises during a proceeding, whether as a result of an order or otherwise, those costs are payable on the conclusion of the proceeding unless the court otherwise orders. [my emphasis]
In our case, first we do not yet know who will be the successful party or if there will be divided success. Secondly, the Rules are clear that unless the court orders otherwise, the parties must wait until the conclusion of the trial before seeking their costs. So, my argument is that it is plain and obvious that Westsea cannot seek to charge its litigation costs in relation to action 16-3355 before the trial, if in fact they are doing this - which seems to be the case, although at this time we do not actually know because they will not provide a breakdown of their "legal costs".
To support my application, I will likely prepare an affidavit that includes some of the recent correspondence from Westsea and their counsel regarding their demand for litigation costs to the leaseholders as operating expenses, in addition to some of my own correspondence to Westsea and its counsel on the issue.
