Our Patients Property Act, Committee application and Vancouver estate litigation lawyers note that legal costs for good faith applications to take over management of and to look after the person and estate of someone who becomes incapable of managing their affairs are routinely paid from the patient’s estate itself. The area is complicated and you should not delay in getting legal advice in order to protect your relative’s finances.
Our estate litigation department has 4 conveniently located offices in downtown Vancouver, South Surrey, Kelowna and Fort St John.
Our BC Court of Appeal recently awarded full reimbursement of legal costs to a spouse of an infirm patient -who lived in a rest home- who had not succeeded in being appointed committee under the Vancouver and BC Patients Property Act and Committee legislation. In this case the children of the patient could not agree who could act in the best interests of the patient and as materials from the care home and others was absent or conflicting. The Judge hearing the application appointed the Public Guardian. In Vierra 2013 BCCA the official headnote summarizes the law and the result: On an application by the appellant to the Supreme Court under the Patients Property Act, the chambers judge made an order appointing the Public Guardian as committee of the person of her husband, Mr. Vieira. The appellant sought an order for special costs to be paid out of the estate of Mr. Vieira, but the judge declined to award her costs. She appeals, with leave, from the denial of costs. Held: Appeal allowed. A chambers judge has broad discretion over costs in a matter under the Patients Property Act. In this case, however, the basis for the judge’s exercise of discretion is not clear. Given that the judge was departing from what would have been the usual order, it was incumbent on him to provide some basis for doing so. In the circumstances of this case, it is appropriate that the appellant be granted special costs in this court and below.
How Do Costs Work In Committee Applications Under the Patients Property Act?
[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:
• “[D]eterring frivolous actions or defences”: Houweling Nursuries Ltd. v. Fisons Western Corp. 1988 CanLII 186 (BC CA), (1988), 37 B.C.L.R. (2d) 2 at 25 (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 CanLII 1537 (BC CA), (1995), 2 B.C.L.R. (3d) 201 at para. 28 (C.A.);
• “Encouraging litigants to settle whenever possible, thus freeing up judicial resources for other cases: Bedwell v. McGill, 2008 BCCA 526 (CanLII), 2008 BCCA 526, 86 B.C.L.R. (4th) 343 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 Corporation v. Companhia de Navegação Norsul, 2009 BCCA 16 (CanLII), 2009 BCCA 16, 88 B.C.L.R. (4th) 17 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 (CanLII), 2001 BCCA 376, 89 B.C.L.R. (3d) 198 at para. 24. [17] In applications for committeeship, it appears that the usual practice of the Supreme Court is to award the successful applicant costs from the estate. This is a sensible position where the application is brought in good faith and where the applicant receives no obvious benefit from the appointment of a committee. Where a committee is appointed, it is because the court has concluded that it is in the best interests of the patient. A party who has brought an application that is found to be in the best interests of the patient, and with no ulterior motive, should be reimbursed for their costs in doing so. [18] While it appears to be the usual practice for a successful applicant on a committeeship application to be granted an order for special costs to be paid from the patient’s estate, there is wide discretion to depart from this practice. If, for example, there are concerns about the motives of the applicant, the applicant’s conduct of the application, or the ability of the estate to bear an order for costs, a different order might be called for. I do not suggest in any way that this is an exhaustive list of considerations. [23] For all practical purposes, therefore, the order of the chambers judge is the final order in this matter, and costs ought to be finally determined.
[24] In making an order, I take into account that:1. The application for committeeship was successful – while I recognize that the appellant originally sought to be granted committeeship herself, she quickly accepted the suggestion that the Public Guardian might be a more reasonable choice;
2. The application was brought in good faith;
3. The appointment of a committee was found to be in the best interests of the patient; and<
4. The application was made without any expectation or possibility of personal benefit to the applicant.
[25] In the result, I am satisfied that the appropriate order is that the appellant have special costs, to be paid from the patient’s estate, both in this court and below. I would so order.
Our Wills Variation, Patients Property Act Committee and estate litigation lawyers are pleased to help. Call us now to find out how we can help you protect your spouse, parent or relative 604-602-9000.
