Executive Summary: Key Legal and Evidentiary Issues

• Dispute centered on alleged negligent culvert installation and nuisance causing flooding on plaintiff’s property.

• Summary trial used to resolve liability without a full trial, emphasizing the need for clear evidence.

• Defendant PGT relied on hydrological expert evidence to rebut the plaintiff's claims.

• Plaintiff's evidence lacked sufficient strength to establish liability for negligence or nuisance.

• Complexity of the case was ruled as ordinary, not warranting elevated (Scale C) costs.

• Court declined to impose double costs due to timing and substance of settlement offers.

Facts and procedural background

This case arises from a long-standing dispute between Corine Lebourdais, the plaintiff and self-represented litigant, and the Public Guardian and Trustee (PGT), acting as administrator of the estate of Carlo Rupert Eugene Asquini. Lebourdais sued the PGT for damages resulting from the flooding of her property, which occurred during an unusually high water flow event involving Cherry Creek. She claimed that the PGT had negligently installed and maintained a culvert on its property and that the dislodging of that culvert created a nuisance that led to the flooding.

The Ministry of Transportation and Infrastructure and the Thompson Nicola Regional District were initially also involved in the case, but the decision in question focuses on the PGT's role and subsequent costs ruling. The case proceeded through several procedural stages, including three summary trial applications. One was brought by a co-defendant and dismissed. The second was brought by the PGT and dismissed as well. The third was initiated by the plaintiff herself and ultimately led to the dismissal of her entire action on December 27, 2024.

Outcome of the summary trial

Justice Hori of the Supreme Court of British Columbia ruled in favor of the PGT, dismissing Lebourdais's claims. The judgment found that the PGT had successfully rebutted the allegations through expert hydrological evidence and that the facts did not support a finding of negligence or nuisance.

The plaintiff had argued that her damages exceeded $2 million, but the court never adjudicated the issue of damages because the matter was disposed of on the question of liability alone.

Costs decision and reasoning

Following the dismissal, both parties made written submissions on the issue of costs. As the successful party, the PGT requested that costs be awarded at Scale C (reserved for more complex cases) and that it be granted double costs under Rule 9-1 due to multiple settlement offers made since 2018.

The court rejected the request for elevated costs, finding that the litigation was not of more than ordinary difficulty. Although the action involved expert evidence and several pre-trial applications, Justice Hori ruled that the legal and evidentiary issues were straightforward and did not warrant Scale C treatment.

On the matter of double costs, the court examined whether the plaintiff should have reasonably accepted any of the PGT's offers to settle, including a final offer of $200,000 plus costs. However, the court found that the plaintiff was not in a position to properly assess her case until after receiving expert reports. Moreover, the significant disparity between her claimed damages and the settlement offer (only about 10% of her claim) did not justify penalizing her with double costs.

Final order

Justice Hori awarded the PGT costs at Scale B, the standard level under British Columbia’s Supreme Court Civil Rules. The application for double costs and elevated cost scale was denied. As neither party achieved total success on the costs application itself, no further costs were awarded in relation to that hearing.