DAMAGES |
Watts v. Kincolith Indian Band
T-2044-96
Hargrave P.
22/3/00
10 pp.
Continuing wrong--Report to determine, recommend damages, costs arising out of action based on trespass to, resulting loss of use of land held pursuant to certificate of title to Indian reserve land--In 1985 Kincolith Indian Band Council, installing radio antenna, satellite dishes, wooden frame building on plaintiff's land without his permission--Settlement attempts fruitless--Action commenced in September 1996--Plaintiff obtained default judgment in March 1999--Radio antenna, frame building still on land--Appraiser's rent for use of land as $710 per year accepted--But statement of claim issued in September 1996 thereby cutting off present claim as of September 1996--As land still encumbered, plaintiff suffering continuing wrong; remedy currently incomplete--Possibility of actions to recover damages continuing until all appurtenances belonging to Band removed from land--McGregor on Damages, 16th ed., London: Sweet & Maxwell, 1997, stating where single act constituting continuing wrong, damages at common law only awarded in respect of loss accruing before commencement of action--Reference to Battishill v. Reed, [1856] 18 C.B. 696; 139 E.R. 1544 wherein Court holding only loss, to commencement of action, might be awarded--Thus each time wronged plaintiff harmed enough to make it worthwhile to try to deter wrongdoer, must sue to recover for damage accumulated since last writ, statement of claim issued--McGregor characterizing this as inconvenient--Litigation luxury for all concerned, including taxpayer who must pay for use of scarce judicial resources--Long recognized in some jurisdictions--In England Rules of Court, as early as Hole v. Chard Union, [1894] 1 Ch. 293 (C.A.) providing for award of damages, for continuing cause of action, right up to time of assessment--Similar rule in Ontario, but no such provision in Federal Court Act or British Columbia Supreme Court Rules which could have been imported by way of analogy pursuant to gap rule--Should plaintiff wish to make further claim, based on trespass or loss of use since issuance of statement of claim in September 1996 will have to commence new action at which time Band might claim as set-off outstanding community fee against property--Based on recoverable damages period of 11 years, 2 months, damages recommended at $10,300--As to bill of costs, counsel fees, disbursements accepted--Appraisal fee of $3,745 properly reflecting work performed, taking into consideration only sensible transportation to Kincolith by chartered float plane--Costs of service of statement of claim on defendants whom process server could not find, identify substantial, again reflecting cost of charter plane--Pre- and post-judgment interest recommended.