Special Costs Refused In Ng “Right To Life Case”

Right To Life Case

Ng v Ng 2013 BCSC 1492 discusses in detail the law relating to special costs, as claimed by the winning party in the previous litigation where the family of Kenny Ng, who had been in a coma for 7 years, in their unsuccessful attempt to prevent the committee of Kenny from cutting off his life support.

The court rejected the claim for special costs, which likely would have well exceeded $100,000 and instead ordered costs on scale B which will be more likely in the range of $15,000.

[12] Rule 14-1(9) of the Supreme Court Civil Rules, B.C. Reg. 168/2009 [Rules] provides:
Costs to follow event

(9) Subject to subrule (12), costs of a proceeding must be awarded to the successful party unless the court otherwise orders.
[13] The Patients Property Act, R.S.B.C. 1996, c. 349 provides pursuant to s. 27: Costs
27 The costs of all proceedings under this Act are in the discretion of the court.

[14] While costs generally follow the event, there are circumstances where costs
may still be awarded to the unsuccessful party.

[15] In Lee v. Lee Estate (1993), 84 B.C.L.R. (2d) 341 (S.C.), the plaintiff, Michael Lee, claimed that he was the son of the testator and that he was entitled to a share of the estate. Genetic testing proved that he was not related to the testator and his claim was dismissed. Mr. Lee claimed special costs from the estate. At paras. 12 – 14, Master Horn found:
An order for costs in favour of a completely unsuccessful party against a completely successful party is a most exceptional order. The general rule is that costs follow the event and while a court may depart from this rule, any departure is usually in the way of depriving a successful party of costs and not of awarding costs to an unsuccessful party. In either case, the usual rule should not be departed from simply because an unsuccessful party did not expect to lose. [Citations omitted]

In probate or administration actions or in proceedings for the construction of wills, the rule may be more frequently departed from. In such cases where the validity of a will or the capacity of the testator to make a will or the meaning of a will is in issue, it is sometimes the case that the costs of all parties are ordered to be paid out of the estate. This is upon the principle that where such an issue must be litigated to remove all doubts, then all interested parties must be joined and are entitled to be heard and should not be out of pocket if in the result the litigation does not conclude in their favour. The estate must bear the cost of settling disputes as a cost of administration. … The question to be asked in such case is whether the parties were forced into litigation by the conduct of the testator or the conduct of the main beneficiaries.

But the case is different where the litigation does not relate to the validity of the will or the capacity of the testator or the construction of the will. Actions brought under dependants relief legislation presume the validity of the will and the capacity of the testator and that his intentions are clear. There are not doubts to be settled. The remedies provided by such legislation are directed to the maintenance and support of the dependants of the testator and are based on public policy. The legislation does not invalidate the will, it merely permits the court to vary the provisions made by the testator. So an unsuccessful action under such legislation cannot be said to have been caused by a testator, or to be have been necessary to enable the estate to be distributed. The action does not benefit the estate.

[Emphasis added.]
[16] According to Lee, in considering whether costs are payable from the estate to an unsuccessful party, the court must consider whether the petitioner was forced to bring the petition

Despite Master Chamberlist’s focus upon the motive of the petitioners in Re Bush, the analysis still turns on whether the application was necessary in any event. The motive of a party in bringing the application is not a determinative factor. In Janzen v. Janzen (2002), 45 E.T.R. (2d) 99, [2002] O.J. No. 1372 (S.C.), Mr. Justice Aitken concluded that the patient’s wife was the appropriate guardian in an application brought by a sibling of the patient to be named as guardian. In deciding which party was entitled to costs, Aitken J. noted that all of the parties to the litigation were motivated by their concern for the patient’s wellbeing. Despite that, Aitken J. held the sibling’s application was unnecessary for the following reasons:
[4] Under s. 20(1) of the Health Care Consent Act, 1996, S.O. 1996, c. 2, Schedule A, in the absence of a court order, the spouse of an incapable person is considered to have a higher right than a sibling to give or refuse consent to medical treatment on behalf of the incapable person. The assumption presumably is that in the normal course, a spouse will have been more intimately involved than a sibling in the recent life of the incapable person, will know the wishes of the incapable person, and will act in a way that is respectful of those wishes and that will meet have strong reasons to do so or be prepared to pay all or part of the spouse’s legal costs necessitated by the litigation.
[5] In this case, I consider it significant that Edward Janzen’s siblings were not prepared to listen to the opinion of several doctors who were telling them there was no possibility of recovery of brain functioning by Edward. The difficulty Edward’s siblings had in accepting this terrible news and their acting in a way which they considered in Edward’s best interests does not insulate them from the cost consequences of unsuccessful and more importantly unnecessary litigation.

[19] He ordered the siblings pay a significant amount of the wife’s costs. best interests of the spouse

Special Costs
Legal Framework
[37] I recently reviewed the law with respect to special costs in Westsea Construction Ltd. v. 0759553 B.C. Ltd., 2013 BCSC 1352. My conclusions on the state of the law of special costs in Westsea are relevant to the issues in this case and I have summarized those conclusions here.

[38] The leading authority for special costs in British Columbia is the Court of Appeal’s decision Garcia v. Crestbrook Forest Industries Ltd. (1994), 9 B.C.L.R. (3d) 242 (C.A.). In that decision, Mr. Justice Lambert determined the threshold for awarding special costs is “reprehensible” conduct. He held at para. 17:
Having regard to the terminology adopted by Madam Justice McLachlin in Young v. Young, to the terminology adopted by Mr. Justice Cumming in Fullerton v. Matsqui (District), and to the application of the standard of “reprehensible conduct” by Chief Justice Esson in Leung v. Leung in awarding special costs in circumstances where he had explicitly found that the conduct in question was neither scandalous nor outrageous, but could only be categorized as one of the “milder forms of misconduct” which could simply be said to be “deserving of reproof or rebuke”, it is my opinion that the single standard for the awarding of special costs is that the conduct in question properly be categorized as “reprehensible”. As Chief Justice Esson said in Leung v. Leung, the word reprehensible is a word of wide meaning. It encompasses scandalous or outrageous conduct but it also encompasses milder forms of misconduct deserving of reproof or rebuke. Accordingly, the standard represented by the word reprehensible, taken in that sense, must represent a general and all-encompassing expression of the applicable standard for the award of special costs.
[39] Lambert J.A. recognized that the meaning of “reprehensible” conduct was still quite broad. He found that in order for a special costs award to be justified, the circumstances had to be exceptional. He continued at paras. 23 and 25:
However, the fact that an action or an appeal “has little merit” is not in itself a reason for awarding special costs. … Something more is required, such as improper allegations of fraud, or an improper motive for bringing the proceedings, or improper conduct of the proceedings themselves, before the conduct becomes sufficiently reprehensible to require an award of special costs.

If the proceedings are taken, not in the reasonable expectation of a satisfactory outcome, but in order to impose the burden of the proceedings themselves on the opposing party in circumstances where one party is financially much stronger than the other, then the absence of merit, coupled with the improper motive, is in my opinion a combination which may well amount to reprehensible conduct sufficient to require an award of special costs.
[Emphasis added.]
[40] Garcia instructs that the purpose of a special costs order is to chastise a litigant and to distance the court from the conduct at issue. Special costs are not compensatory: Grewal v. Sandhu, 2012 BCCA 26 (leave to appeal refused, [2012] S.C.C.A. No. 120) at para. 106.
[41] In Westsea, I suggested that the legal standard of reprehensibility has at times been difficult to apply in cases where the misconduct is of a milder form. As a consequence, reprehensibility has been found even where there are no exceptional circumstances, or as Lambert J.A. termed it, “something more”.

7] The law is quite clear that unsuccessful allegations alone cannot support an order for special costs. I note the reasons of Lambert J.A. in Garcia excerpted above.
[58] As found by Mr. Justice Joyce in Hung v. Gardiner, 2003 BCSC 285:
[16] In order to justify an award of special costs, it is not sufficient simply to establish that the plaintiff’s allegations of bad faith and malice were not proven. It is necessary to show that the plaintiff acted improperly in making or maintaining the allegations in this proceeding or otherwise acted improperly in the manner in which she conducted the litigation before special costs will be awarded. It must be shown, not just that the allegation was wrong, but that it was obviously unfounded, reckless or made out of malice. The matter must be considered from the point of view of the plaintiff at the time she made or maintained the allegations (see Native Citizens Fisheries et al. v.
James Walkus, (July 10, 2002) 2002 BCSC 1030).

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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