It is common in committeeship disputes for families and loved ones to have diametrically opposed views of the best interests of the patient. Disagreements about the best interests of an incapable adult may need to be settled by litigation. Costs in BC committeeship proceedings serve the function of encouraging parties to behave reasonably in contentious family disputes. In McCoy (Re), 2020 BCSC 2182, the court considered the threshold of conduct deserving of rebuke by a costs order.
The McCoy (Re) matter came before the court as two contested petitions under the Patients Property Act, R.S.B.C. 1996, c. 349 regarding the committeeship of Brian McCoy. Mr. McCoy was declared incapable of managing his person or his estate, and Maryanne Csizmazia was appointed his committee of person and estate on certain terms. Ms. Csizmazia argued that her special costs and the special costs of Mr. McCoy should be paid by the unsuccessful petitioner, Silise Lebedovich, and further, that Ms. Lebedovich should bear her own costs. The facts upon which Ms. Csizmazia relied to support a special costs order centred around a number of actions Ms. Lebedovich took that interfered with Ms. Csizmazia’s contact with Mr. McCoy and Mr. McCoy’s contact with his lawyer. Ms. Csizmazia also alleged that Ms. Lebedovich drove up the cost of litigation by insisting that all communication go through the lawyers and refused to engage in any good faith efforts to resolve the application. Ms. Levedovich said she was prepared to bear her own costs, but took the position that she should not be liable for the costs of anyone else.
Section 27 of the Patients Property Act states that the determination of costs is in the discretion of the court. The case authorities have developed the following general rules for costs on committeeship applications:
On the other hand, where the court is not persuaded that a party, successful or unsuccessful, has acted with the best interests of the patient in mind because the party had improper motives, was seeking to advance their own interests, or otherwise failed to act in the best interests of the patient, a court will not hesitate to deprive a party of special costs from the estate. This can take the form of requiring parties to bear their own costs, ordering one party to pay party‑and‑party costs of another party, or depriving a party of some portion of their costs from the estate.
Punitive special costs orders can also be made by the court in estate and incapacity litigation to sanction conduct by a party that is deserving of rebuke. However, the order sought by Ms. Csizmazia (that Ms. Lebedovich be personally liable to pay her special costs and the special costs of Mr. McCoy) was unusual in the context of Patients Property Act proceedings. Ms. Csizmazia asked the court to order special costs not from the estate of Mr. McCoy but against Ms. Lebedovich personally, absent a finding of reprehensible conduct deserving of rebuke by the court. The court found no case authority for such an order. For Ms. Lebedovich to be sanctioned with special costs, her behaviour must reach the threshold of conduct deserving of rebuke. That was not found on the facts, per the court:
 I accept that the evidence shows a pattern of conduct by Ms. Lebedovich that was sometimes heavy handed. I also find that the refusal of her solicitor to engage in discussions with the other parties suggests a civil litigation mindset that is not particularly helpful when seeking to resolve a dispute involving an incapable adult and disagreements about his best interests amongst those who love him. However, I do not find that any of the alleged poor conduct of Ms. Lebedovich amounts to conduct deserving of censure by the court.
 As I found in the reasons for judgment, at all times Ms. Lebedovich was acting in good faith, doing what she believed was in Mr. McCoy’s best interests. It is exceedingly common in committeeship disputes for families and loved ones to have diametrically opposed views of the best interests of the patient. These views are often deeply felt. Where a party is acting in good faith and genuinely seeking to protect the best interests of the patient, with no personal interest or improper motive, it would be highly unusual for the court to make a punitive costs order against them. Doing so could discourage family members and others from coming forward to engage in this kind of protective litigation and could have a chilling effect that would leave incapable adults more vulnerable than they already are.
Consistent with the position taken by Ms. Lebedovich, the court ordered that Ms. Csizmazia receive her special costs from the estate of Mr. McCoy and not from Ms. Lebedovich personally. Ms. Lebedovich was to bear her own costs.
Costs in committeeship proceedings serve the function of encouraging parties to behave reasonably in contentious family disputes. Where a party is acting in good faith and genuinely seeking to protect the best interests of the patient, with no personal interest or improper motive, it would be highly unusual for the court to make a punitive costs order against them.
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