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CIVIL PROCEDURE - Costs - Special orders - Unproved allegations of fraud

Monday, February 22, 2021 @ 9:22 AM  


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Application by the husband for leave to appeal an award of special costs. The parties married in 1978 and separated in 2010. Thereafter, the wife commenced a family law action. In 2015 the court ordered the sale of the parties’ residential property. The wife was granted sole conduct of the sale by consent. The wife accepted a purchase offer for $860,000 and agreed to a $10,000 holdback to pay for the removal of debris and chattels from the property. The sale completed without further incident. However, the husband took issue with the holdback and commenced litigation attempting to reverse the transaction. Ten separate judgments addressed the sale and the husband’s claims. In the most recent proceedings, the husband commenced an action seeking to set aside the sale based on fraud. Following a series of appeals and further interlocutory proceedings, the husband applied to have his own action dismissed. The wife consented to the dismissal and indicated she would seek special costs. The chambers judge confirmed the parties’ agreement to dismiss the fraud action and concluded that the husband’s unproven and baseless allegations of fraud justified special costs. The husband sought leave to appeal on the basis the chambers judge erred by conducting a shadow trial of the merits despite an insufficient evidentiary record and by ignoring relevant evidence that supported the plea of fraud.

HELD: Application dismissed. The chambers judge assessed the conduct of the parties, the pleadings filed and the affidavit material before the court. The decision to award special costs was discretionary and entitled to deference. The judge addressed the evidentiary foundation for the plea of fraud and found it to be without foundation. The judge considered the evidence and came to certain conclusions adverse to the husband. This was a highly fact-specific issue, not a question of principle. Further review was unlikely to yield a decision of use to other litigants or the general practice. The grounds of appeal advanced did not meet any of the tests for granting leave. It was not in the interests of justice to prolong the matter further.

Berthin v. Berthin [2020] B.C.J. No. 2144, British Columbia Court of Appeal, J.J.L. Hunter J.A., December 29, 2020. Digest No. TLD-February222021002