2005 BCSC 50 The Sunshine Coast Regional District v. Dediluke

Before: The Honourable Madam Justice Gerow

Reasons for Judgment

Counsel for the Petitioner:	D.I. Howieson
The Respondents, acting on their own behalf:	Steven Dediluke
Written Submissions:	December 2004

[1] The petitioner, Sunshine Coast Regional District (SCRD) seeks costs of its application against the respondents, Steven and Claudette Dediluke. In its application the SCRD sought an order prohibiting Mr. Dediluke from carrying on an automobile repair business on his property and an order requiring the Dedilukes to clean up debris on their property.

[2] The Dedilukes purchased their property in 1974. Mr. Dediluke’s evidence was that he had carried on an automobile repair business on the property for many years. He was of the understanding that he was allowed to carry on an automobile repair business on his property under a grandfather clause even though a bylaw had been enacted prohibiting that type of business in his neighbourhood. The evidence is that he stopped doing automobile repairs, other than his own, when he was requested to stop by the SCRD.

[3] The SCRD, while conceding that Mr. Dediluke had ceased conducting an automobile repair business on the property, sought a declaration prohibiting Mr. Dediluke from carrying out repairs to automobiles other than his own on the property in the future. Mr. Dediluke’s position is that he had agreed not to carry on any automobile repairs other than on his own vehicles when requested to do so by the SCRD and did not oppose an order being made that he would not carry on an automobile repair business on the property in the future.

[4] As well, Mr. Dediluke presented evidence that the Dedilukes had cleaned up their yard at the request of the SCRD. Although the property was not cleaned up within the time period requested by the SCRD, the evidence is that the scope of the clean-up had been changed by the SCRD and that the Dedilukes had not been able to meet the deadline set by the SCRD due to financial and personal problems they encountered. The SCRD was advised of the Dedilukes ongoing efforts to comply with the request and the problems they were encountering. The Dedilukes formed the mistaken belief that they had been granted additional time by the SCRD.

[5] By the time of the application the automobile repair business had ceased and the property had been cleaned up. Although the Dedilukes did not comply with the order to clean up the property within the time limit set by the SCRD, it is apparent that the Dedilukes took steps to clean their property after they were advised to do so by the SCRD.

[6] Rule 57 provides that a court may in its discretion award or refuse to award costs to any party in any civil proceeding. The person who seeks to displace the usual rule that costs follow the event has the burden of persuading the judge that the rule should be displaced. Although the judge has a discretion to refuse to award costs to a successful party the discretion is to be exercised on a principled basis. Grassi v. WIC Radio Ltd. (2001), 89 B.C.L.R. (3d) 198 (C.A.) at ¶ 24.

[7] In this case, Mr. Dediluke had complied with the request of the SCRD to cease repairing automobiles, other than his own, well before the hearing. As a result of the evidence that Mr. Dediluke had ceased repairing automobiles, the SCRD only sought a portion of the relief set out in its petition, i.e. that a declaration be made that Mr. Dediluke be prevented from conducting an automobile repair business on the property in the future.

[8] Although the Dedilukes did not comply with the deadline set by the SCRD to clean up their property, the property was cleaned up by the time of the hearing. The Dedilukes’ reasons for not cleaning up the property within the time limit were that there had been a misunderstanding as to the scope of the clean-up required and that Mr. Dediluke had suffered a fall and his father had died which delayed the clean-up.

[9] The SCRD argued that its application was justified in that the Dedilukes had not complied with the SCRD’s requests to clean up their property in a timely fashion, however, I am satisfied that the Dedilukes made efforts to comply with the SCRD’s requirements.

[10] At the time of the hearing the relief sought in the petition that the Dedilukes cease conducting an automobile repair business and clean up the property was academic. However, the SCRD sought declarations that the Dedilukes continue to comply with requirements to not carry on any automobile repair business on their property and keep their property clean. The Dedilukes did not oppose the granting of the orders. In the circumstances it is my view that a departure from the usual rule that costs follow the event is justified. The SCRD’s application for costs is dismissed.

“L. Gerow, J.”
The Honourable Madam Justice L. Gerow

Citation:	*The Sunshine Coast Regional District v. Dediluke,*
	2005 BCSC 50