Ellis v. BC Public Guardian and Trustee 2019 BCSC 1006 is an example of the risk of cost awards to the losing party in a contested committeeship under the Patient’s Property Act being denied and the losing party incurring personal costs .
There had long been a false notion that both the winning party and the losing litigant would both be awarded their costs on a special cost basis from the patient’s estate, but that never really was the case, and the Ellis case is an example of that risk. It ultimately depends if the litigation was in the best interests of the patient or not and was it necessary.
The petitioner had filed an application to be named the committeeship in the place of the Public Guardian and Trustee. The Public Guardian and Trustee did not oppose the application, but an estranged half-sister did.
The court found that both sisters were suspicious of the other’s motives for wanting to be the committee. The litigation became acrimonious and all parties ultimately consented to the appointment of the Public Guardian and Trustee as committee of both the affairs and person of the patient.
After reviewing the law on costs, the court concluded that the factual situation did not warrant a departure from the ordinary rule of costs, namely that the unsuccessful litigant should not be entitled to her costs from the estate, special or otherwise. Accordingly , the petitioners application for costs to be paid out of the estate was dismissed.
Law on Costs
Section 27 of the Patient’s Property act provides that the costs of all proceedings under the act are in the court’s discretion.
As set out in rule 14-1(9) of the Rules of Court, an unsuccessful party typically bears their own costs.
However, in probate litigation, the court may decide to order special costs be paid out of the estate to unsuccessful parties in committee disputes where they participated not to advance their own interests, but to protect the best interest of the patient.
For example, special costs were awarded to both parties seeking committeeship in Pritam Kaur Atwal 2005 BCSC 660 where the court followed Bush Estate (1995) 56 ACWS 589 at paragraph 24:
“ the master awarded special costs to the petitioners, who were unsuccessful in having their mother declared incapable of managing herself and her affairs. The intentions of the petitioners are thus described:
The petition was commenced not to advance the interests of the petitioners, but to protect the interest of the patient. The petitioners were not advancing some right, or some interest or even some perceived right or interest that had vested in them as would be the case in a wills variation application or in the case of interparty litigation. There was no benefit to be obtained by them at law. They were simply acting in what they perceived to be in the best interest of their mother, the proposed patient.
The court cited Royal Trust Corporation of Canada v . Clarke (1989) 35 BCLR 82 that found although the case concluded the successful petitioner for a committeeship should be awarded special costs, this ratio could also be extended to unsuccessful petitioners whose actions were motivated by concern for the best interest of the proposed patient. In the specific circumstances of that case, the special costs were limited in time to exclude certain expenses.
The court also referred to Re Sangha 2013 BCSC 1965 at paragraph 114 “ whether the unsuccessful party brought the petition in good faith for the benefit and in the best interests of the patient, and whether her conduct in doing so should be discouraged.”
Both parties relied upon Ng v Ng 2013 BCSC 1494 at paragraph 16 for the proposition that in considering whether costs are payable from the estate to an unsuccessful party, the court must consider whether the petitioner was forced into bringing the petition. In other words, was the petition necessary in any event? In Ellis the petition was not necessary.