BURST
An Okanagan couple faces $200,000 in legal and other fees for not immediately following evacuation orders during a wildfire near Vernon five years ago. They may also lose their leased property in a retirement community.
It is the third lawsuit Parker Cove Properties has filed against Robyn and Carmen Gerow, alleging they put the lakeside retirement community at risk during the 2021 Interior B.C. wildfires by not leaving their property when first ordered to, according to a lawsuit filed in B.C. Supreme Court.
Despite earlier rulings by the Supreme Court and the B.C. Appeal Court about who should pay for legal costs, Parker Cove is again demanding the Gerows to pay all its legal fees. It argues that the terms of the Gerows’ subleases on their properties entitle the company to the full payment.
The Gerows haven’t filed a response to the lawsuit and they did not return a request for comment left with their lawyer.
In the summer of 2021, the White Rock Lake fire raged close to the community of 600 homes on Lake Okanagan. Provincial officials said they would not drop fire retardant on the community or waterbomb it while residents were still there, according to the lawsuit.
A mandatory evacuation order was issued Aug. 1, 2021, but Robyn Gerow stayed “to carry out various activities that he believes were of assistance to the authorities and residents,” according to the original Supreme Court judgment.
He ferried supplies back and forth to the community by boat and helped some residents return to collect belongings and check on their homes, it said.
In court, he denied his presence prevented firefighters from dropping fire retardant or using waterbombers, but during pretrial submissions admitted he knew that was the case.
Gerow finally left on Aug. 14, 2021, after the RCMP provided him with a letter from the Okanagan Lake (N̓k̓maplqs) Indian Band, urging holdouts to leave, because he didn’t want to risk an issue with the First Nation, according to the judgment.
Parker Cove, which subleased the Gerows their two adjoining properties on the land it leased from the N̓k̓maplqs, filed the first lawsuit in 2022, asking the courts to terminate the couple’s subleases for breaching its terms, according to court documents.
A Supreme Court judge in 2023 found the couple had breached subleases that required them to comply with all laws or orders, but ruled that didn’t entitle Parker Cove to end their subleases.
Robyn Gerow’s failure to immediately follow the evacuation order “did not cause a fundamental breach of the subleases” and didn’t entitle Parker Cove to end the subleases, wrote Justice Elizabeth McDonald.
The B.C. Appeal Court dismissed Parker Cove’s appeal, agreeing with the Supreme Court that Robyn Gerow’s “failure to obey the evacuation order did not deprive Parker Cove of a substantial benefit of the sublease.”
The Supreme Court judge in her ruling on who should pay whose court costs said she would award the Gerows increased costs because they were successful in having the claim dismissed, but not the higher special costs they sought.
On appeal, Parker Cove was successful in having the increased costs reduced to a normal scale.
After those costs were settled and the amounts claimed by the Gerows offset by what they owed, Parker Cove maintains the couple owes it $181,000 more in legal costs, plus outstanding lease payments.
“To date, the Gerow defendants have not made that payment,” according to the latest claim.
Parker Cove wants the court to allow it to terminate the subleases and retake possession of the properties for failure to pay.
The net sales proceeds of their properties would then be used to pay realtors, the outstanding mortgage, and Parker Cove its $197,000, with the Gerows receiving the balance, according to the lawsuit.
Parker Cove argues it is legally entitled to be reimbursed for its full legal fees and not just a portion of them as courts usually award.
It based that argument on the finding by the Supreme Court judge the Gerows had breached the subleases and the Appeal Court’s confirmation its lawsuit “was not brought for an improper purpose.” It also said the Appeal Court ruled the Gerows’ conduct was “offensive and blameworthy.”
And it argues the court should not “depart from the clear and unequivocal terms of the contract.”
The Gerows “by committing multiple and repeated breaches of the subleases are not entitled to claim any equitable relief and do not come to the court with ‘clean hands’,” it said. “There was serious misconduct by the defendants, which has contractually serious consequences.”
None of the allegations have been tested in court.
Requests for comment from Parker Cove were not returned.