Personal Costs Against Lawyer

Personal Court Costs Awarded Against Lawyer - Disinherited

C.A.S. of the R.M.of W. v C.T.and J.B. 2017 ONSC 318 awarded personal court costs of $100,000 against a lawyer for her role in a custody battle involved in the Children’s Aid Society.

The court found that the lawyer’s tactics and strategy had caused an unnecessary duplication of effort of counsel, unnecessary extra court attendances, and a significant consumption of court and counsel’s resources and taxpayer funding.

While this is an unusual development, it is not unheard of in Canadian jurisprudence were counsel’s behaviour is unacceptable irresponsible at it best reprehensible, at worst.  In fact, I sense it is a growing trend the courts attempts to deal with over crowded court lists that are made worse by the few lawyers that ultimately waste limited  court resources.
In a nutshell, decision to require a lawyer to pay court costs to a person is not predicated upon a finding of ineffective or inadequate counsel or upon that councils negligent conduct. Although such a finding may be relevant, the test is whether the lawyer has” wrote up costs without reasonable cause, or has wasted costs.”

Court costs are traditionally intended to:

a) indemnify the successful litigant;
b) encourage parties to settle disputes; and
c) sanction a parties unreasonable behaviour or parties that are unprepared ie costs wasted

[76] InRand Estate v Lenton (2009 ONCA 251 (CanLII)) at para. 5, the Ontario Court of Appeal found that the determination of costs against counsel requires a holistic and contextual approach to the entirety of the solicitor’s behaviour (not just during the trial only, as Ms. Sack argues) in order to “…produce an accurate tempered assessment” of costs.

Further, other case law confirms that the test for determining costs against counsel is a two-part test:

(1) did counsel cause costs to be unnecessarily incurred?

(2) should the court exercise its discretion to impose costs against counsel despite the requirement that it use extreme caution before doing so? (see Galganov v Russell (Township) )2012 ONCA 410 (CanLII)) at para 22. This decision reiterates the “extreme caution principle” set out in Young v Young (1993 CanLII 34 (SCC), [1993] 4 SCR 3 at para 263) which was also followed by Justice Hackland, in Carleton v Beaverton Hotel, 2009 CanLII 92124 (ON SCDC), [2009] 96 OR (3d) 391; 314 DLR (4th) 566 where, at para 15, he noted:

anLII 92124 (ON SCDC), [2009] 96 OR (3d) 391; 314 DLR (4th) 566 where, at para 15, he noted:

I agree with the appellant’s submission that the “extreme caution” which courts must exercise in awarding costs against a solicitor personally as stated in Young v. Young, means that these awards must only be made sparingly, with care and discretion, only in clear cases,

[76] In F. (V.) v F. (J.) (2016 ONCJ 759 (CanLII) at paras. 11-15) Kurz, Prov. J. elaborated  on the first part  of the test, as set down by the Ontario Court of Appeal in Galanov:

11          The Ontario Court  of Appeal offered the following directions in regard to the first part of the two-part test in Galganov:

a.    The first step is to determine whether the conduct of the lawyer comes within the rule; that is, whether his or her conduct caused costs to be incurred unnecessarily. To do so, the court must consider the facts of the case and the particular conduct attributed to the lawyer.

b.  The rule allowing costs against a lawyer is not intended as punishment for professional misconduct. Rather, it is as indemnity for the time wasted and expenses unnecessarily expended as a result of the conduct of a lawyer.

c.   Neither negligence nor bad faith is a requirement for imposing costs against a lawyer.

d.  Mere negligence or conduct that does not meet the level of negligence may be sufficient to attract costs against a lawyer.

e.   The costs rule is intended to apply “…only when a lawyer pursues a goal which is clearly unattainable or is clearly derelict in his or her duties as an officer of the court…”

f.   In determining whether the rule applies, the court must examine “the entire course of the litigation that went on before the application

Judge’.” This requires a “holistic examination of the lawyer’s conduct” in order to provide an “accurate tempered assessment”. But a general observation of the lawyer’s conduct is not sufficient. Instead, the court must look to the specific incidents of conduct that are subject to complaint, (my emphasis)

How the Award of Court Costs are Made in British Columbia

This video is about court costs. Typically and historically, court costs often came out of the estate. The unsuccessful party did not have to pay the winning party and that was the way it was for many, many years. Approximately 20 years ago in British Columbia, the courts began to be more discriminated on how the award of court costs was made.

There are typically a few different scenarios that can have different implication for costs. If for example, the reason of the court application is the testator’s own fault, for example, the will is ambiguous, then the court will typically award court costs out of the estate. If on the other hand, the parties are having a legal dispute over the validity of a will or such things, the court has a discretion to award cost and might very well award court costs to the winning party against the losing party, that is, the losing party would have to pay a contribution towards the legal fees of the winning party.

Typically an executor is entitled to be reimbursed for his or her legal fees if incurred properly. There’s a great number of different scenarios of cost in this video. The one I caution litigants about is the award of special costs. If for example a litigant claims undue influence against another party and fails to prove it at court, the trial judge may very well award special costs against the losing party which means that the losing party has to pay 100 percent of the winning party’s legal fees. That can be a very significant sum of money.

Determining Legal Fees When No Retainer Agreement is Present

Determining Legal Fees When No Retainer Agreement is Present

If a lawyer does not have a contingency fee agreement or retainer agreement then the courts will use various criteria to determine the appropriateness of the legal fees based on quantum meruit (a reasonable fee for services rendered).

One of the chestnuts in this area of law is the Court of Appeal decision from Saskatchewan – Yule v City of Saskatoon  1955 , 17 WWR 296 which adopted the criteria set out in Re Solicitor: 

11.  Re Solicitor (1920) 47 O.L.R. 522, supra.: the matters to be considered in arriving at a proper amount on the basis of a quantum meruit;  are:

1)  the extent and character of the services rendered,

2) the labour, time and trouble involved,

3) the character and importance of the litigation in which the services were rendered,

4) the amount of money or the value of the property involved,

5)  the professional skill and experience called for,

6) the character and standing in his profession of the counsel and

7) the results achieved.

Costs: The Standard of Review

Costs: The Standard of Review

The BC Court of Appeal in Giles v Westminster Savings Credit Union 2010 BCCA 282 reviewed the standard of awarding costs and the various purposes for an award of costs.

The case was recently followed in Kyle Estate v Kyle 2017 BCSC 752 which stated inter alia  that the discretion to order the payment of double costs must be exercised in a just, principled and consistent way: Giles v. Westminster Savings Credit Union (2010, 5 B.C.L.R. (5th) 252 at para. 88 and such an order is permissive, not mandatory: Buttar v. Di SpiritoI, 2009 BCSC 72 at para.

Standard Review of Costs

72      Before considering the various challenges to the trial judge’s costs orders, I note that such orders are discretionary and appellate review is limited in scope. As Arbour J. stated in Hamilton v. Open Window Bakery Ltd. (2003), 2004 SCC 9, [2004] 1 S.C.R. 303 (S.C.C.), “[a] court should set aside a costs award on appeal only if the trial judge has made an error in principle or if the costs award is plainly wrong”: para. 27. More recently, in Victoria (City) v. Adams, 2009 BCCA 563, 313 D.L.R. (4th) 29 (B.C. C.A.), this Court said:

[180] The general rule with respect to costs is that they follow the event and are assessed on a party and party basis unless the court otherwise orders: Rules 57(9) and 57(1) of the Rules of Court. Courts retain the discretion to depart from the general rule where the circumstances justify a different approach: British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71, [2003] 3 S.C.R. 371 at para. 22. It is a broad discretion, and this Court will only interfere “if there is misdirection or the decision is so clearly wrong as to amount to an injustice”: Agar v. Morgan, 2005 BCCA 579 at para. 26.

Misdirection may include making an error as to the facts, taking into consideration irrelevant factors, or failing to take into account relevant factors, all of which would amount to an error in principle: Sutherland v. Canada (Attorney General), 2008 BCCA 27, 77 B.C.L.R. (4th) 142 (B.C. C.A.) at para. 24.

73      However, the discretion with respect to costs is not wholly unencumbered. As Mr. Justice Seaton stated in Royal Trust Corp. of Canada v. Clarke (1989), 35 B.C.L.R. (2d) 82 (B.C. C.A.) at 88:

Costs are in the discretion of the court, but it does not follow that the judge is to do whatever pleases him at the moment. Rules and decisions offer guidance that should ensure that different judges in similar cases make similar decisions.

74      The purposes for which costs rules exist must be kept in mind in determining whether appellate intervention is warranted. In addition to indemnifying a successful litigant, those purposes have been described as follows by this Court:

• “Deterring frivolous actions or defences”: Houweling Nurseries Ltd. v. Fisons Western Corp. (1988), 37 B.C.L.R. (2d) 2 (B.C. C.A.), leave ref’d, [1988] 1 S.C.R. ix;

• “To encourage conduct that reduces the duration and expense of litigation and to discourage conduct that has the opposite effect”: Skidmore v. Blackmore (1995), 2 B.C.L.R. (3d) 201 (B.C. C.A.) at para. 28;

• “Encouraging litigants to settle whenever possible, thus freeing up judicial resources for other cases: Bedwell v. McGill, 2008 BCCA 526, 86 B.C.L.R. (4th) 343 (B.C. C.A.) at para. 33;

• “To have a winnowing function in the litigation process” by “requir[ing] litigants to make a careful assessment of the strength or lack thereof of their cases at the commencement and throughout the course of the litigation”, and by “discourag[ing] the continuance of doubtful cases or defences”: Catalyst Paper Corp. v. Companhia de Navegação Norsul, 2009 BCCA 16, 88 B.C.L.R. (4th) 17 (B.C. C.A.) at para. 16.

75      Lastly, it must be also remembered that “the person who seeks to displace the usual rule [as to costs] has the burden of persuading the judge that the rule should be displaced”: Grassi v. WIC Radio Ltd. 2001 BCCA 376, 89 B.C.L.R. (3d) 198 (B.C. C.A.) at para. 24.


Special Costs Not to Include Pre Litigation Conduct

Special Costs Not to Include Pre Litigation Conduct

The BC Appeal court in Smithies Holdings Inc. v. RCV Holdings Ltd., 2017 BCCA  extensively reviewed the law relating to an award of special costs and held that reprehensible pre litigation conduct should not be included when a judge exercises his or her discretion  as to award or not award special costs.

The court stated that oppressive or reprehensible conduct by a party in pre litigation might instead be awarded punitive damages, but any costs award for such behaviour should be limited to during the course of the litigation and not before.

Special costs are typically awarded when there has been some form of reprehensible conduct on the part of one of the parties: Young v. Young [1993] 4 SCR 3 at 134–138. Special costs are not compensatory; they are punitive: Grewal v. Sandhu, 2012 BCCA 26 at para. 106. They are awarded when a court seeks to disassociate itself from some misconduct: Fullerton v. Matsqui (District) (1992), 74 B.C.L.R. (2d) 311 (C.A.) at para. 23. There are circumstances where special costs may be ordered where there has been no wrongdoing: Gichuru v. Smith, 2014 BCCA 414 at para. 90. These reasons are not concerned with such types of cases.

[57]         The leading authority on special costs is this Court’s decision in Garcia v. Crestbrook Forest Industries Ltd. (1994), 9 B.C.L.R. (3d) 242 (C.A.). There, Mr. Justice Lambert, writing for the Court, set out that the threshold for special cost awards is “reprehensible conduct”. He noted the continuum of circumstances in which special costs could be awarded, ranging from “milder forms of misconduct deserving of reproof or rebuke” to “scandalous or outrageous conduct”:

[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,  and to the application of the standard of “reprehensible conduct” by Chief Justice Esson in Leung v. Leungin 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.

[100]    At the outset, it is important to emphasize that in exercising the power to fix costs a judge cannot act arbitrarily or capriciously. He or she must act in a manner consistent with the Rules and the principles that have long governed such awards. In Stiles v. B.C. (W.C.B) (1989), 38 B.C.L.R. (2d) 307 (C.A.) at 310, Lambert J.A. articulated the limits on a judge’s power to award costs:
…Generally, the decisions on costs, including both whether to award costs, and, if awarded, how to calculate them, are decisions governed by a wide measure of discretion. See Oasis Hotel Ltd. v. Zurich Insurance Co. (1981), 28 B.C.L.R. 230, [1981] 5 W.W.R. 24, 21 C.P.C. 260, [1982] I.L.R. 1-1459, 124 D.L.R. (3d) 455 (C.A.). The discretion must be exercised judicially, i.e. not arbitrarily or capriciously. And, as I have said, it must be exercised consistently with the Rules of Court. But it would be a sorry result if like cases were not decided in like ways with respect to costs. So, by judicial comity, principles have developed which guide the exercise of the discretion of a judge with respect to costs. Those principles should be consistently applied; if a judge declines to apply them, without a reason for doing so, he may be considered to have acted arbitrarily or capriciously and not judicially.
[Emphasis added in [131]     As has been set out in many authorities reviewed here, pre-litigation conduct that gives rise to a cause of action will already be the subject of a damage award flowing from the objectionable conduct. Where a party’s misconduct is so malicious, oppressive and high-handed that it offends the court’s sense of decency, an award of punitive damages may also follow. Whiten provides a principled structured framework for such awards.

[132]     Special costs are an inherently unsatisfactory mechanism to punish pre-litigation conduct. Special costs are intended to punish reprehensible conduct which as per Garcia includes scandalous or outrageous conduct as well as milder forms of misconduct deserving of reproof or rebuke. The case law has considered a range of pre-litigation conduct, including breach of contract, negligence, breach of fiduciary duty, fraud, misappropriation, deceit, sexual assault, failure to follow a constitutionally mandated process and murder. All such conduct could be said to be deserving of rebuke.

[133]     Attempting to draw the line on a principled basis as to what pre-litigation conduct should be sanctioned by special costs and which should not is, as amply demonstrated by the case law, a near impossible task. It is also an unnecessary task as the law already provides appropriate relief and remedies for such conduct. In my respectful opinion, special costs should only be awarded to punish reprehensible conduct in the litigation.

[134]     In the result, I am of the view that a bright line can and should be drawn so that judges will be able to exercise their discretion in like cases in a like manner. Special costs should be reserved to punish and deter reprehensible conduct in the course of litigation. Pre-litigation conduct should not be considered in determining whether such an award is appropriate. There are other suitable mechanisms to censure pre-litigation conduct.


[135]     It is clear from the trial judge’s reasons that special costs were awarded in this case because of the pre-litigation conduct. That conduct was the central issue in the trial. It is the basis of RCV’s claim for loss of opportunity. I note in his costs reasons the trial judge stated that RCV did not claim punitive damages and in the circumstances of this case, it could not have done so. While it is true that RCV did not seek punitive damages, I am not aware of any reason why it could not have done so.

[136]     For the reasons I have set out, pre-litigation conduct should not have been considered in determining the cost award. I thus find the trial judge erred in principle. In the result, I would allow the appeal and set aside the award of special costs. RCV is entitled to the costs of the trial on a party and party basis. The Appellants are entitled to the costs of the appeal.

Double Costs: Rule 9-1(5)

Double Costs: Rule 9-1(5)

The plaintiff’s claim was dismissed with costs and the defendant sought double costs under Rule 9-1(5) on the basis that the defendant made an offer to settle that should have been accepted by the plaintiff.

The application for double costs was dismissed as the court stated:

15      However, I do not consider the defendants’ offer to have been one that ought reasonably to have been accepted by the plaintiffs. In assessing reasonableness, I cannot consider the ultimate decision in the case. At the time of the defendants’ offer they were essentially asking the plaintiffs to give up their claim entirely and, in addition, pay the future premiums for the life insurance policy. Accepting the offer would have required the plaintiffs to completely accept the defendants’ position. Furthermore, no rationale was provided by the defendants to the plaintiffs for the terms of the offer.

In Hartshorne v. Hartshorne, 2011 BCCA 29, our Court of Appeal offered some guidance when a trial court is asked to award double costs.

11      At para. 25 the Court of Appeal states:

[25] An award of double costs is a punitive measure against a litigant for that party’s failure, in all of the circumstances, to have accepted an offer to settle that should have been accepted. Litigants are to be reminded that costs rules are in place “to encourage the early settlement of disputes by rewarding the party who makes a reasonable settlement offer and penalizing the party who declines to accept such an offer. (Authorities are cited)

12      The Court goes on to state, at para. 27:

[27] The first factor — whether the offer to settle was one that ought reasonably to have been accepted — is not determined by reference to the award that was ultimately made. Rather, in considering that factor, the court must determine whether, at the time that offer was open for acceptance, it would have been reasonable for it to have been accepted . . . the reasonableness is to be assessed by considering such factors as the timing of the offer, whether it had some relationship to the claim (as opposed to simply being a “nuisance offer”), whether it could be easily evaluated, and whether some rationale for the offer was provided.

Court Costs Awarded Against Lawyer Personally

Court Costs Awarded Against Lawyer Personally

The Supreme Court of Canada dismissed an appeal of the Ontario Court of Appeal upholding a a substantial award of court costs against a  lawyer personally for his handling of a case found to be vexatious and an abuse of process.  The client was also jointly liable for the costs award (see Paul Slansky v Kingsland Estates Ltd et al February 2,2017 case # 37175).

The amount was assessed at $160,000 at the Superior Court level by Justice Healey  2015 ONSC 6269.

Mr. Slansky was further ordered to pay an additional $30,000 for costs of the appeal.

Justice Healey applied Ontario Rule 57.07 of the Rules of Court that allows the Court to order lawyers to pay costs personally when they ” cause costs to be incurred without reasonable cause or to wasted by undue delay, negligence or other default.”

The trial justice stated that ” Mr. Slansky counselled the plaintiff or otherwise allowed his client to proceed with a series of unmeritorious steps and to take unreasonable positions to achieve goals in this action.”

The Justice stated that the second action did not have a ” scintilla of merit” and that it was the most ” vexatious and abusive” claim she had ever ruled upon.

In 2007 the client Donald Best , before he was represented by Mr. Slansky sued 62 defendants for negligence and economic loss.

In the course of the proceedings Mr. Best was found to be in contempt of court and served 60 days in prison.

Mr. Best continued to assert allegations that were found to be baseless and vexatious and an award of full indemnity for costs was ordered against him (2013 ONCA 695).

Mr. Best then commenced a second action against 39 defendants where he was represented by Mr.  Slansky, who alleged misconduct on the part of the opposing lawyers, police and private investigators.

Many of the allegations in the second law suit were similar or identical to the first court action that was found to be baseless, vexatious and an abuse of process.

Many in the legal profession are concerned about the reasoning of the court as it may act to deter and punish  lawyers who take on “difficult cases”.

The decision has pointed out the fine line between lawyers taking on unpopular or difficult cases that might require the lawyer to adopt aggressive tactics, so that lawyers will therefor have to constantly evaluate whether their actions are consistent with their ethical obligations.

Wills Variation and Court Costs

Wills Variation and Court Costs

Two recent wills variation cases awarded the usual order of court costs to a winning party, namely Scale B.

In Dakin v Patry 2016 BCSC 1006 a plaintiff won a summary  trial and was awarded scale B .

In Ciarniello v James 2016 BCSC 1805 the plaintiff again won the trial and was awarded Scale B court costs.

The court in Ciarniello restated some case law re the usual orders in estate litigation depending on who was responsible for the court claim in the fist place.

4) Clearly the plaintiff was the successful party. However, in some circumstances costs in estate litigation are handled differently and this was generally described by Dardi J. in Massam Estate (Re), [2015] B.C.J. No. 1607, 2015 BCSC 1306, where she said at para. 49:

The costs analysis in certain types of estate litigation is informed by specific principles unique to estate litigation: Mawdsley v. Meshen, 2011 BCSC 923. For example, if the litigation was brought about or sprung from the will-maker’s own conduct — such as ambiguous wording in the will requiring an application to construe the will — the general judicial approach has been that all parties should be awarded their costs out of the estate: Lee v. Lee Estate (1993), 84 B.C.L.R. (2d) 341 (S.C.); Vielbig v. Waterland Estate (1995), 1 B.C.L.R. (3d) 76 (C.A.). Otherwise, the usual rule is that costs follow the event, so that the successful litigant is entitled to recover costs from the unsuccessful opposing party. The court, however, retains the discretion to order otherwise if the circumstances warrant it. Any discretionary exceptions to the usual costs rules must be made judicially: Bailey v. Victory (1995), 4 B.C.L.R. (3d) 389 (C.A.) at 393.

[5]             The leading case on the usual approach to costs in estate litigation is the Court of Appeal’s decision in Vielbig v. Waterland Estate (1995), 1 B.C.L.R. (3d) 76. Hinds J.A. referred to the decision of Master Horn in Lee v. Lee Estate (1993), 50 E.T.R. 297 at pp. 301-302 for the proposition that “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”. However, quoting further from Master Horn he referred to litigation such as the case at bar where the issue was not the validity of the will or the testator’s capacity but the provisions directed to the support and maintenance of dependants and said in part:

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 have been necessary to enable the estate to be distributed. The action does not benefit the estate.

[6]             Hinds J.A. continued at para. 45:

Here there was no question of the validity of the will, the testamentary capacity of the Testator, or of the meaning of the will. The Testator was not at fault in some way, thereby contributing to the appellant making an unsuccessful claim against his estate. In my view the general rule must prevail; costs should follow the event. …

[7]             There is no reason, exercising my discretion judicially, to make an order different from that sought by the plaintiff’s counsel. The plaintiff was successful. I was not shown any offers to settle by either party that showed the result was better than a result they were prepared to settle

Fertility and WESA

Fertility and WESA: Is This Reproductive Matter Property?

A deceased husband’s frozen sperm at a fertility centre was declared to be personal property under WESA and previous case law and thus could be inherited by the widow on an intestacy.

The court in KLW v Genesis Fertility Centre 2016 BCSC 1621 ordered to release of the frozen sperm to the widow as the sole beneficiary despite the deceased not having signed the required consent under the Assisted Human Reproduction Act and it’s  Regulations to create an embryo.

There was evidence that the wife and the deceased had spoken to a number of professionals of their plan to conceive a child even if he died.

The court held that the reproductive material which includes sperm, ovum and other cell or human g3ene or any part of them is  a product under WESA that can pass to beneficiaries.

The fertility centre did not oppose the application and  required  a court order to release the sperm without the proper consent of the deceased.

The court held to deny the wife the use of the reproductive material would be both unfair and an affront to her dignity.

Is the Reproductive Material Property?

[59]        In particular contexts, courts in various jurisdictions have held that human sperm or ovums stored for reproductive purposes are property: C.C. v. A. 1/1/., 2005 ABQB 219; J.C.M. v. A.N.A., 2012 BCSC 584Lam v. University of British Columbia, 2015 BCCA 2Yearworth v. North Bristol A/HS Trust, [2009] EWCA Civ 37; Kate Jane Bazley v. Wesley Monash IVF Pty. Ltd., [2010] QSC 118 (Queensland SCTD); Jocelyn Edwards: Re the Estate of the late Mark Edwards, [2011] NSWSC 478.

[60]        In C.C. v. A.W., the parties disputed access to twins born to C.C. through a donation of sperm from A.W. Each party also claimed the four fertilized embryos that remained in a Toronto clinic. A.W. refused to consent to the release of the remaining embryos to C.C. for her use in another attempt to become pregnant.

[61]        At paras. 20 and 21, the court found that A.W. had provided his sperm as an unqualified gift to C.C. to assist her to conceive children. The remaining fertilized embryos remained C.C.’s property. They were chattels she could use as she saw fit.

[62]        In J.C.M. v. A.M.A., the parties, during the course of their spousal relationship, each gave birth to one child using artificial insemination from sperm provided by a single donor. When the parties separated, they entered into a separation agreement that divided all joint property of their relationship. Through inadvertence, the separation agreement did not divide the 13 remaining sperm straws stored at Genesis. Madam Justice Russell concluded that the remaining sperm straws should be treated as property for the purpose of dividing them upon the dissolution of the parties’ spousal relationship. In reaching that conclusion, Russell J. relied primarily upon C.C. and the decision of the England and Wales Court of Appeal in Yearworth v. North Bristol NHS Trust, [2009] EWCA Civ 37.

[63]        In Yearworth, the Court held that stored sperm was property for the purposes of an action for negligent damage to property. The appellants were all diagnosed with cancer. They received treatment at a hospital operated by North Bristol NHS Trust and accepted advice that before undergoing chemotherapy, they could produce semen samples that the respondent would store for their future use. Before any of the appellants attempted to use the sperm, the hospital’s freezing system failed and the sperm perished.

[64]      The Court of Appeal began its analysis at para. 28:

28. A decision whether something is capable of being owned cannot be reached in a vacuum. It must be reached in context; and in this section of our judgment the context is whether an action in tort may be brought for loss of the sperm consequent upon breach of the Trust’s duty to take reasonable care of it. The concept of ownership is no more than a convenient global description of different collections of rights held by persons over physical and other things. In his classic essay on “Ownership” (Oxford Essays in Jurisprudence, OUP, 1961, Chapter V) Professor Honore identified 11 standard incidents of ownership but stressed that not all of them had to be present for ownership to arise. He suggested that the second incident was “the right to use” and he added, at p.116, that:

“The right (liberty) to use at one’s discretion has rightly been recognised as a cardinal feature of ownership and the fact that… certain limitations on use also fall within the standard incidents of ownership does not detract from its importance…”

We have no doubt that, in deciding whether sperm is capable of being owned for the purpose which we have identified, part of our enquiry must be into the existence or otherwise of a nexus between the incident of ownership most strongly demonstrated by the facts of the case (surely here, the right, albeit limited, of the men to use the sperm) and the nature of the damage consequent upon the breach of the duty of care (here, their inability to use it notwithstanding that this was the specific purpose for which it was generated).

[65]        In Yearworth, the Court recognized that historically, the common law did not allow any property interest in the human body, or body parts, living or dead. The Australian High Court in Doodeward v. Spence, (1908) 6 C.L.R. 406 created an exception to this rule when it recognized the right of ownership in a two-headed fetus preserved for commercial display as a curiosity. For the majority, Chief Justice Griffith held:

[W]hen a person has by the lawful exercise of work or skills so dealt with a human body or part of the body in his lawful possession that it has acquired some attributes differentiating it from a mere corpse awaiting burial, he acquires a right to retain possession of it …

[66]        The Court in Yearworth held at para. 45(a) that developments in medical science “now require a re-analysis of the common law’s treatment of and approach to the issue of ownership of parts or products of a living human body, whether for present purposes (viz. an action for negligence) or otherwise.”

[67]        At para. 45 (d), the Court stated that it was not content to see the common law in this area founded upon the principle in Doodeward, “which was devised as an exception to a principle, itself of exceptional character, relating to the ownership of the human corpse. Such ancestry does not commend it as a solid foundation.”

[68]        At para. 45(f), the Court held that for the purposes of their negligence claims, the appellants had ownership of the sperm which they had generated and ejaculated for the sole purpose of its later use for their benefit. Although their rights to use the sperm were limited by legislation, no person other than the appellants had any right in relation to the sperm.

[69]        In Yearworth, at para. 45(b), the Court of Appeal emphasized the claim concerned products of a living human body intended for use by the persons whose bodies had generated them. The Court was not asked to consider whether there was any significant difference between such claims and claims in respect of donated products intended for use by others brought by the donors or by the donees of such products.

[70]        In J.C.M., Russell J., referring to Yearworth, commented at para. 63 that the need for the common law to keep up with medical science is compelling. At para. 69, she found that in the context of the dispute before her, the sperm was the property of the parties. Madam Justice Russell observed that the sperm had been treated as property by everyone involved in the transaction, including the donor, Genesis and the parties.

[71]        Equally, in the case at bar, [A.B.], Genesis and the petitioner all treated the Reproductive Material as property.

[72]        In Lam v. University of British Columbia, the Court of Appeal upheld the trial judge’s finding that frozen human sperm is property for the purposes of the Warehouse Receipt Act, R.S.B.C. 1996, c. 481 (“WRA”). The facts of Lam are similar to Yearworth. The respondent, Mr. Lam, was the representative plaintiff in a class proceeding against the University of British Columbia. Members of the class had cancer. Before undergoing radiation treatment, they stored their frozen sperm in the appellant’s freezer. As the result of a power failure, the stored sperm was damaged or destroyed.

[73]        In Lam, Chiasson J.A., at para. 51, considered the Court in Yearworth had taken the correct approach to the development of the common law in holding that developments in medical science required a re-examination of the issue of ownership of parts or products of a living human body. However, in concurring reasons for judgment, Bennett J.A., writing for herself and Frankel J.A., emphasized at para. 110 that in Yearworth, the Court was determining whether human sperm was property in a very narrow context, and was not determining whether sperm in other contexts, such as probate or matrimonial law, could be considered property.

[74]        At paras. 113 and 114, Bennett J.A. stated:

[113]   The nature and scope of property interests that a person can have in human sperm need not be decided on the facts of this case. This case, unlike for example, J.C.M. v. A.N.A., 2012 BCSC 584, does not deal with competing property interests in human sperm. This case considers whether Mr. Lam, a cancer patient, has ownership of the sperm he produced, such that he can contract for its storage to enable his personal use of the sperm at a later date. If so, the sperm is property, as something must be property if it is capable of being owned. There may also exist things that are property that cannot be owned, but that is not something that needs to be decided in the context of this case.

[114]   Not all of Professor Honore’s 11 incidents of ownership need to be present for ownership to arise (Yearworth at para. 28). Ownership of body parts must be contextual, and often limited by legislation because of public policy reasons. No one would argue that if a cancer patient cut her hair and stored it for the purpose of later making a wig after treatment that she did not “own” her hair in that context. On the other hand, legislation prevents the selling of sperm and organs such as kidneys, but does not prevent their donation. The prohibition on sale does not necessarily mean the legislation is inconsistent with ownership. It has provided limits to ownership in some contexts.

[75]        In concluding that each of the sperm donors had sufficient ownership of their stored sperm for it to be “property” and thus “goods” within the meaning of the WRA, Bennett J.A. applied the same analytical framework as the Court had adopted in Yearworth. The donors had ejaculated the sperm; contracted to store the sperm for their own future use; paid a fee for storage; and could consent to the sperm being tested. Further, they could terminate the storage agreement; could consent to the release of the sperm to their physician to be used by their spouse; and could exclude all others from using the sperm. Although legislation or the storage agreement precluded the donors from disposing of the sperm by leaving it to someone in their will or from selling the sperm, they nonetheless had sufficient rights in relation to their own sperm for it to be defined as property.

[76]        In Bazley v. Wesley Monash IVF Pty. Ltd., the applicant’s husband was diagnosed with liver cancer. Before his death, he provided a semen sample before undergoing chemotherapy. The respondent continued to store the semen samples following Mr. Bazley’s death. When the applicant requested that the respondent continue to store the sperm, a spokesperson for the respondent informed her that in the absence of specific reproductive and assisted technology legislation in Queensland, the respondent operated under national guidelines for the use of assisted reproductive technology. The guidelines provided that clinics must not store or use gametes from deceased persons unless there was a clearly expressed written directive from the donor consenting to the use of the gametes. Mr. Bazley had died without providing such a direction. The respondent informed the applicant that in the absence of such a directive, it was prevented by the guidelines from continuing to store Mr. Bazley’s sperm or using it to procure a pregnancy.

Taxation of a Lawyers Account

Taxation of a Lawyers Account

Lawyer client relationships sometimes go off the rails and a dispute may arise about an unpaid account. The remedy is taxation of the account before a registrar of the Supreme  Court and both the client and the lawyer have the right to have the matter determined  in that manner pursuant to the Legal Professions act.

Master Taylor sitting as a registrar allowed an unpaid family lawyer’s account in full for $25,356 after reciting many pages of letters between the lawyer and the client that clearly demonstrated a severely strained relationship, and a client who would not follow advice.

The lawyer had the client sign a retainer agreement that provided for such possible  lawyer client problems and the procedure for resolving them which the court found useful in determining the proper account for services rendered under  the circumstances.

I recommend reading Lindsay Kenney LLP v Yehia 2016 BCSC 2121 for an inside look into how lawyers on occasion have to deal with clients who the court found to be ” one of the most difficult clients a lawyer could possibly have.”

That case was a heated matrimonial proceeding but estate litigation files certainly have the tendency to also become extremely emotional to the expense of common sense and reason.

Lawyers invariably give good advice to their clients and when the clients fail to follow the advice, it usually costs the client dearly as it did with Mr. Yehia.

The court set out the Provisions of S 71 Legal Professions Act governing the taxation of lawyers accounts:

Matters to be considered by the registrar on a review

71 (1) This section applies to a review or examination under section 68 (7), 70,77 (3),

78 (2) or 79 (3).

(2)           Subject to subsections (4) and (5), the registrar must allow fees, charges and disbursements for the following services:

(a)  those reasonably necessary and proper to conduct the proceeding or business to which they relate;

(b)  those authorized by the client or subsequently approved by the client, whether or not the services were reasonably necessary and proper to conduct the proceeding or business to which they relate.

(3)           Subject to subsections (4) and (5), the registrar may allow fees, charges and disbursements for the following services, even if unnecessary for the proper conduct of the proceeding or business to which they relate:

(a)  those reasonably intended by the lawyer to advance the interests of the client at the time the services were provided;

(b)  those requested by the client after being informed by the lawyer that they were unnecessary and not likely to advance the interests of the client.

(4)           At a review of a lawyer’s bill, the registrar must consider all of the circumstances, including

(a)  the complexity, difficulty or novelty of the issues involved,

(b)  the skill, specialized knowledge and responsibility required of the lawyer,

(c)  the lawyer’s character and standing in the profession,

(d)  the amount involved,

(e)   the time reasonably spent,

(f)    if there has been an agreement that sets a fee rate that is based on an amount per unit of time spent by the lawyer, whether the rate was reasonable,

(g)   the importance of the matter to the client whose bill is being reviewed, and

(h)   the result obtained.

(5)   The discretion of the registrar under subsection (4) is not limited by the terms of an agreement between the lawyer and the lawyer’s client.