Our Vancouver estate litigation lawyers have recently been discussing adult incapacity, the nature of committeeship, and the issues for determination on a BC committeeship application. In today’s post, we will examine the issue of who pays the legal costs relating to the committeeship application.
Costs of application for committee of person or estate
In BC, the Patients Property Act, R.S.B.C. 1996 c. 349 (“PPA”) governs applications to the court for an order to be appointed a committee of another individual’s person or estate. Section 27 of the PPA gives to the judge hearing the application broad discretion to make costs awards. However, the usual practice is that a successful applicant on a committeeship application will be entitled to special costs paid out of the patient’s estate. This means that the applicant is entitled to recover reasonable legal fees at a rate higher than a normal costs award, plus disbursements such as the fees charged by the Public Guardian and Trustee (”PGT”) and the fees to obtain affidavits of two medical practitioners in support of the application. Exceptions may arise, however, on contested applications. One or both of the parties may be ordered to bear their own costs if there are concerns about motive, or if the judge does not view the dispute as being in the best interests of the patient but rather the product of personal animosity.
Committeeship application gives rise to Vancouver litigation
In a recently decided Vancouver litigation matter, both parties to a contested application for committeeship were awarded special costs to be paid by the estate of the patient, despite what was characterized as a “regrettably adversarial” approach taken by both parties. In Cameron (Re), 2020 BCSC 157 two sisters were locked in an unfortunate conflict over the care of their mother, who was 84 years old and suffering from progressively worsening dementia. The younger sister applied for a declaration under section 3 of the PPA that their mother was incapable of managing herself and her affairs because of mental infirmity arising from disease, age or otherwise. She further applied under section 6 of the PPA for an order appointing her committee of her mother’s person and estate, or alternatively, appointing an independent party as committee of her mother’s estate.
Contested application for committeeship
The elder sister opposed the younger sister’s application and applied for an order transferring the issues of capacity and committeeship to the trial list, or alternatively, an order appointing her as committee instead of her sister. Each sister sought to impugn the motives of the other. It was noted that the elder sister seemed to view the proceeding as an adversarial one that was at least partly personal. The court expressed concerns that the elder sister was communicating and influencing the mother by giving an inaccurate and biased understanding of the younger sister’s actions (e.g., telling their mother that the younger sister was trying to take control away from her, and get at her money). The elder sister also attempted to block the mother’s doctor from responding to the request for an affidavit in support of the younger sister’s application. The elder sister was noted to have been disingenuous about inquiries that the younger sister made of the family’s accountant and lawyer, framing it to their mother as the younger sister trying to “meddle” in her affairs or take her money.
Both sisters awarded special costs paid by their mother’s estate
Mr. Justice Grauer found on the basis of the evidence filed that the mother was incapable of managing herself or her affairs within the meaning of the PPA and made a declaration of incapacity. On the question of who should be appointed committee, however, triable issues arose and the matter was remitted to the trial list. The PGT was ordered to act as committee pending further court order. In subsequent reasons (indexed at Cameron (Re), 2020 BCSC 580) the court clarified that both sisters were entitled to their special costs, payable out of their mother’s estate. Despite the deep distrust and animosity between the sisters, Mr. Justice Grauer did not deviate from the usual practice with respect to costs as he was satisfied that each sister firmly believed, in good faith, that her respective position was in her mother’s best interests.
Take home point on costs of BC committee applications
BC courts have broad discretion with respect to the costs of an application for committeeship. The general rule is that a successful applicant will be entitled to special costs, payable out of the patient’s estate. However, the court may deviate from the general rule if the application is not found to be in the adult’s best interests or there are concerns about a party’s conduct or motives.