The BC Court of Appeal in Hollander v Mooney 2017 BCCA 238 discussed the rare circumstances where the court may award costs against non parties.
One or more of the circumstances that might warrant an award of costs against a non party are occasionally seen in estate litigation
The Court’s jurisdiction to order costs against a non-party 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 771 at para. 21; Perez v. Galambos, 2008 BCCA 382 at paras. 17–18; and Animal Welfare at paras. 53–58.
The previous appeal decision Perez v Galambos summarized the jurisdiction to award costs against a non-party:
“ The court does have jurisdiction to order costs against a non-party: Oasis Hotel Ltd. v. Zurich Insurance Co. (1981), 1981 CanLII 433 (BC CA), 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.
“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”: