Date: 20000322
Docket: T-2044-96
BETWEEN:
MARLON BRADFORD WATTS,
Plaintiff,
- and -
CHIEF COUNCILLOR STUART CHRISTOPHER DOOLAN SENIOR,
COUNCILLORS LARRY ANGUS, RAYMOND AZAK,
PERCIVAL DESMOND BARTON JUNIOR,
DONALD DOOLAN, ALVIN E. NELSON,
GEORGE MOORE, HENRY STEVENS,
JAMES STEVENS, PETER STEVENS
JUNIOR, RAYMOND ALLAN STEWART
AND WILLIAM C. STEWART SENIOR,
sued on their own behalf, and sued as
representatives of the
KINCOLITH INDIAN BAND COUNCIL
and the KINCOLITH INDIAN BAND with all of
its other membership except the Plaintiff
MARLON BRADFORD WATTS,
Defendants.
REFEREE"S REPORT
As to Damages, Interest and Costs arising out
of a Default Judgment on a Claim for Trespass to
and Loss of Use of Land at Kincolith, B.C.
MR. JOHN A. HARGRAVE,
PROTHONOTARY
| [1] This report, to determine and to recommend damages, costs and interest, arises out of an action which is based on trespass to and resulting loss of use of land at Kincolith, a small community at the mouth of the Nass River in northern British Columbia. The trespass is to land held by the Plaintiff, Marlon Watts, now a judgment creditor, pursuant to a certificate of title to Indian reserve land. The reference, which is, as I say, to set damages for trespass and loss of use, is straight forward. However it does raise an interesting issue of continuing damages and whether such damages might be calculated past the issuance of the statement of claim and up to the date of the Reference. |
| [2] The Reference took place at Vancouver on 15 March 2000, Mr. Watts represented by counsel and the Kincolith Band and Council represented by Mr. Moore, the Band manager. |
BACKGROUND
| [3] The land in question, Lot 1a on the plan attached to the appraiser"s report, is a narrow triangle of land bounded by the tidal waters of Nass Bay and Front Street. Because of erosion and size the land held by Mr. Watts is not suitable for residential use. The appraiser, and I will deal with his report in due course, looked upon the land in terms of commercial use. It was in fact put to commercial use in about 1985 by the Kincolith Indian Band Council, without the permission of Mr. Watts, as a site for a radio antenna, two satellite dishes and a wooden frame building used, at the relevant time, for signal processing and re-transmission to the community. |
| [4] When Mr. Watts objected to this trespass to his land there were some attempts to reach a negotiated settlement, involving a small cash payment and a swap of land. This came to nothing. Mr. Watts began this action in September of 1996, seeking various declaratory relief and damages. |
| [5] There was difficulty in serving the Defendants, compounded by the fact that Kincolith is accessible only by boat or float plane. On 2 March 1999 Mr. Watts obtained default judgment against six of the Defendants, both personally and, through their representation, against the Kincolith Indian Band and the Kincolith Indian Band Council. |
| [6] The Band manager, Mr. Moore, attended at the Reference to explain the position of the Kincolith Indian Band. The Band, by reason of financial difficulties, had elected not to contest the proceedings. |
| [7] Mr. Moore spoke of various matters, including a part payment toward an aborted settlement in about 1989; back-filling or perhaps erosion control related to the Watts property at Band expense; that a non-profit community service had been dependant upon the equipment situated on Mr. Watts" property; the ability of the Band to expropriate; and that the Band"s equipment, save a radio antenna and the frame building, had now been removed. Mr. Moore went on to say the property is not taxed as such, however the yearly community service fee, presently $95, may not have been paid for some time, although the Band had no immediate documents bearing on this point. All of this perhaps engendered some sympathy, however the arguments and set-offs are either too late or, as I will in due course suggest, now perhaps too early. |
ANALYSIS
Rent
| [8] The claim for trespass, including a continuing trespass, is straight forward. The Plaintiff has had an appraisal, a very workman like and easily understood study, done by Appraisals Northwest, a firm working out of Terrace, British Columbia, which sets out the appraiser"s view as to rent for the use of the land. It matters not that this is land on an Indian Reserve held by certificate of possession, as opposed to freehold land. Any adjustment has been taken into account in the valuation of the land and the going rental for communication equipment sites. I accept that the appraisal compensation, for occupation of Mr. Watts" 3300 square feet of land by the Kincolith Indian Band, is either the land"s commercial value, reflected in rent, or the rent that is normally paid by communications firms for such use. The figures are nearly identical. The rent is, as I say, arrived at through two approaches. First, using a return on capital investment, current (1999) rent is $710 a year, a product of a $7100 land value and a 10% return, a return justified by example. |
| [9] Second, the appraiser determined the property"s current (1999) rental value by comparing it with other sites for satellite communication systems, with adjustments, at $728 per year. The appraiser has taken the 1999 adjusted rent to be $725 per year. The appraiser has then estimated rent for earlier years using the consumer price index. |
| [10] I would accept the appraiser"s calculation of damages as it stands, were the relevant period 1 July 1985 to the date of the Report, 30 November 1999, being $13,319.12. , including interest. However the Statement of Claim was issued in September of 1996, thereby cutting off the present claim as of September, 1996. Here I would note that Mr. Watts, whose land is still encumbered with the Kincolith Band"s building and radio antenna, is suffering a continuing wrong, yet has a remedy which is currently incomplete. To elaborate, McGregor on Damages , 16th Edition, 1997, Sweet & Maxwell, touches upon the inconvenience, from a plaintiff"s view point, of suing on a cause of action which is a continuing wrong. For Mr. Watts there will always be, until all the appurtenances belonging to the Kincolith Band are removed, the possibility of actions to recover damages. McGregor points out that: |
| The rule here is that where a single act constitutes a continuing wrong, damages at common law can only be awarded in respect of loss accruing before the commencement of the action by issue of the writ. [(Page 273] |
Here the reference is Battishill v. Reed [1856] 18 C.B. 696, 139 E.R. 1544, involving overflow, from eaves and gutter, overhanging the plaintiff"s wall. The Court held that only the loss, to the commencement of the action, might be awarded. Thus, each time the wronged plaintiff is harmed enough to make it worth while to try to deter the wrongdoer, he or she must sue to recover for damage which has accumulated since the last writ or statement of claim was issued. McGregor characterizes this as an inconvenient result. I would go further and point out that litigation is a luxury, for all concerned, including the taxpayer who must pay for the use of scare judicial resources. Indeed, in some jurisdictions this has long been recognized.
| [11] In England the Rules of Court, at least as early as Hole v. Chard Union [1894] 1 Ch. 293 (C.A.), provided for an award of damages, for a continuing cause of action, right up to the time of assessment. There is a similar rule in Ontario. However there is no such provision in the Federal Court Act. There is no such provision in the British Columbia Supreme Court Rules which I might usefully import, by way of analogy, pursuant to Federal Court Rule 4, the gap rule. |
| [12] Mr. Watts has suffered and continued to suffer some loss of use so long as the Kincolith Indian Band actively used his property to receive radio and television transmissions and similar loss of use so long as the Band continues to leave its building and any equipment in place. Mr. Watts may well have a good continuing cause of action. However, should he with to make a further claim, based on trespass or loss of use since issuance of the Statement of Claim in September of 1996, he will have to commence a new action. At that time it might be open for the Kincolith Indian Band to claim as set-off at least the outstanding community service fee against the property. Here I refer back to my earlier comment that the counterclaim or set-off of the Kincolith Indian Band was too late in the one instance and is presently premature as a set-off, for no new trespass claim has been commenced. |
| [13] Mr. Watts is entitled to a portion of the rent, that which accrued between 1 July 1985 and 13 September 1996. The period for which damages claimed by Mr. Watts are good, under the present action is, in round figures 11 years, 2 months out of the 14 year, 5 month calculation period used by the appraiser. |
| [14] To make an exact calculation would scarcely be worth the effort, for each rental year in the appraisers calculation, brought up to the date of the report, bears interest at a different rate, in order to take into account fluctuating interest rates during the intervening years. Moreover the interest is calculated on different adjusted rental rates for each year. The gross damages, $13,319.12, including interest, are not large. In round figures, based on a recoverable damages period of 11 years, 2 months, as opposed to the 14 year, 5 month calculation period used by the appraiser, I would recommend damages, including pre-judgments interest to issuance of statement of claim at $10,300. |
Costs
| [15] Turning now to costs, counsel for Mr. Watts has tendered a draft bill of costs, together with backup material for the major disbursement items. |
| [16] Counsel fees are based on Tariff B, mid-range Column III. The claim, at 18 units, is a conservative one. It should be accepted as presented. |
| [17] Disbursements include the usual fee for filing the Statement of Claim and for the Requisition of the Reference, although I do not believe that $75 "hearing fees" were payable in this instance. |
| [18] The appraisal fee, $3,745 is, in my view, properly reflected in the work performed and taking into consideration that the only sensible transportation from Terrace to Kincolilth is by chartered float plane. While the costs of service of the Statement of Claim, on the Defendants whom the process server could find, or could identify, is substantial, that again reflects the cost of a charter aircraft. |
| [19] There are the usual claims for sundry items, including photocopying. The latter is presented at $307.79. By comparison with the statutory fee which the Court charges for photocopying, this is a modest disbursement. |
| [20] In summary, the bill of costs is presented at $5,356.95. The portion of it which is good, in my view, is $5,281.95. |
CONCLUSION
| [21] I recommend to the Court, that the Plaintiff Judgment Creditor, Marlon Bradford Watts, be awarded as against the Kincolith Indian Band Council, the Kincolith Indian Band, Stuart Christopher Doolan Senior, Percival Desmond Barton Junior, James Stevens, Peter Stevens Junior, Raymond Allan Stewart and William C. Stewart Senior, jointly and severally: |
| 1. Damages and interest to issuance of the statement of claim on September 13, 1996, in the amount of $10,300.00 |
| 2. Costs and disbursements, which include the attendance on the Reference, in the amount of $5,281.95 |
| 3. Pre-reference compounded interest on $10,300.00, from date of issuance of the Statement of Claim, 13 September 1996, to 22 March 2000 at 5.8% being an average of the rates during this period as used by the appraiser, brought up to date, rates based on the interest on capital and revenue accounts utilized by the Government of Canada. This interest totals, in round figures, $2,000.00. |
| 4. Post reference interest at the Royal Bank prime commercial rate plus 1% from 2 March 1999 until the date of satisfaction. |
and that these funds be forwarded in trust to counsel for Mr. Watts, David Patterson, in exchange for an appropriate release, no discontinuance of the present proceedings being required as the action has proceeded to judgment.
| [22] I thank counsel for the Plaintiff for a proper presentation. I thank Mr. Moore, the Band manager, for his clear presentation of the Band"s circumstances and possible future claim. |
(Sgd.) "John A. Hargrave"
Prothonotary
March 22, 2000
Vancouver, British Columbia
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS ON THE RECORD
| COURT FILE NO.: T-2044-96 |
| STYLE OF CAUSE: Marlon Bradford Watts |
v.
The Kincolith Indian Band et al.
PLACE OF REFERENCE: VANCOUVER
DATE OF HEARING: March 15, 2000
| REFEREE"S REPORT OF MR. JOHN A. HARGRAVE, PROTHONOTARY |
| DATED: March 22, 2000 |
APPEARANCES:
Mr. David Paterson
| Barrister & Solicitor for Plaintiff |
Mr. George Moore
| Kincolith Band Manager for Defendant |
SOLICITORS OF RECORD:
David Paterson
Barrister & Solicitor
| Surrey, BC for Plaintiff |
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