Ordering Court Costs Against a Non-Party

Ordering Court Costs Against a Non-Party

Hollander v Mooney 2017 BCCA 238 discussed the Court’s jurisdiction to order costs against a non-party and held that it is limited to special circumstances such as fraudulent conduct, abuse of process, gross misconduct, or circumstances where the non-party is the “real litigant”: Anchorage Management Services Ltd. v. 465404 B.C. Inc., 1999 BCCA 771at para. 21; Perez v. Galambos, 2008 BCCA 382at paras. 17 — 18; and Animal Welfare at paras. 53 — 58.

55      This Court summarized the jurisdiction to award costs against a non-party in Perez, where Madam Justice Rowles said:

[17] The court does have jurisdiction to order costs against a non-party: Oasis Hotel Ltd. v. Zurich Insurance Co. (1981), 28 B.C.L.R. 230 (C.A.). However, an award of costs against a non-party is unusual and exceptional, and should only be made in “special circumstances”: Anchorage Management Services Ltd. v. 465404 B.C. Inc., 1999 BCCA 771, 72 B.C.L.R. (3d) 389, at para. 21.

[18] “Special circumstances” have been held to include situations where the non-party has engaged in fraudulent conduct, an abuse of process, or gross misconduct in the commencement and/or conduct of the litigation, or when the non-party is the “real litigant”: Anchorage.

56      More recently, the Court in Animal Welfare applied Anchorage Management and Perez in setting aside an award of costs against the principal of a litigant company. 

Anchorage management Services Ltd v 465404 BC Inc. 1999 BCCA 771 stated interia:

21      That the court has an inherent jurisdiction to impose costs to achieve justice between parties is undeniable but the imposition of costs upon non-parties is an unusual event and such a costs order should, I venture to suggest, be made only in special circumstances. Such an order is very much an exception to the usual rules governing costs. In the Sturmer case, a case challenging a local option by-law, the court upheld Chancellor Boyd’s order for costs against non-parties who were found to have put up “a man of straw” in whose name the litigation would be carried on so as to avoid anticipated liability for costs upon dismissal of the action. The court agreed with Chancellor Boyd that the proceedings were in the nature of an abuse of the process of the court. Middleton J. in the Divisional Court put it this way:

Can there be a fraud which this court ought to visit more strongly than the conduct pursued in this case in which in order to avoid the payment of the costs of a doubtful litigation to which the plaintiff might be made liable, the real plaintiff procures a pauper to become the nominal plaintiff?

 

Trevor Todd

Trevor Todd is one of the province’s most esteemed estate litigation lawyers. He has spent more than 40 years helping the disinherited contest wills and transfers – and win. From his Kerrisdale office, which looks more like an eclectic art gallery than a lawyer’s office, Trevor empowers claimants and restores dignity to families across BC. He is a mentor to young entrepreneurs and an art buff who supports starving artists the world over. He has an eye for talent and a heart for giving back.

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