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Commiteeship, Costs

Special Costs Granted from the Estate in Protracted BC Committeeship Proceedings

By Candace Cho

In BC, a committee can be appointed on application to the Supreme Court to make personal, legal, or financial decisions for an adult who is found to be mentally incapable. We recently discussed the issue of who pays the legal costs of a committeeship application. The general rule is that a successful applicant on a committeeship application will be awarded special costs from the estate of the “patient” (that is, from the estate of the adult who has been declared incapable of managing his or her person or affairs in accordance with section 3(1) of BC’s Patients Property Act, R.S.B.C. 1996 c. 349 (“PPA”)). This is because it is generally understood that such applications are brought for the benefit of the patient to assist with the management of the person and estate. In today’s post, we will discuss the costs decision in Swereda (Re), 2020 BCSC 701 and the factors the courts will consider in fashioning a costs award.

Patient died before hearing of committeeship application  

The petition was filed seeking a declaration that Joyce Swereda (the “patient”) was incapable of managing herself and her affairs by reason of mental infirmity arising from disease, age or otherwise. The petitioner, Deborah Anne Jumaga, sought to be appointed committee of Ms. Swereda’s person and estate. However, Ms. Swereda passed away on October 22, 2019 at the age of 82, before the petition could be heard. Costs of the proceedings became the sole question before the court. The petitioner sought costs of the application to be paid out of the patient’s estate as special costs. The Public Guardian and Trustee (“PGT”) opposed the application and sought its own award of special costs payable from the estate of Ms. Swereda.

Cognitive decline and financial abuse necessitated PGT involvement

The 58-year-old petitioner, Ms. Jumaga, referred to Ms. Swereda as her aunt, though she was not related to the patient by blood. Ms. Jumaga had known Ms. Swereda for 29 years and they had a close personal bond right up until Ms. Swereda’s death. Over time, Ms. Jumaga witnessed a gradual decline in Ms. Swereda’s health. Ms. Swereda was suffering from memory loss, had her driver’s license revoked, became socially isolated, and unfortunately became the victim of financial abuse from another relative. Consequently, the bank and Ms. Jumaga contacted the PGT with concerns about Ms. Swereda’s welfare. The PGT commenced an investigation. In 2018, a Certificate of Incapability was issued for Ms. Swereda pursuant to the Adult Guardianship Act, R.S.B.C. 1996, c. 6 (“AGA”), and by operation of the AGA, the PGT became the patient’s statutory property guardian and took control of the patient’s assets and financial affairs. Over the next year, Ms. Jumaga became unhappy with the PGT’s level of involvement with the patient and decided to pursue committeeship. One of the effects of the orders sought under the petition would have been to remove the PGT as statutory property guardian.

Highly contested committeeship proceedings

The PGT opposed Ms. Jumaga’s application for committeeship, taking the position that she had a history of conflict with Ms. Swereda’s caregivers such that her increased involvement in the patient’s affairs posed risks to her care. The protracted and costly proceedings that followed were found by Madam Justice Shergill to be in large part due to the unnecessarily antagonistic position taken by the PGT. In support of her petition, Ms. Jumaga filed her own affidavit, and affidavits from two doctors attesting to Ms. Swereda’s medical condition. The various affidavits filed in support of the PGT set out a number of concerns about Ms. Jumaga’s behaviour, which included that Ms. Jumaga was rude to caregivers, critical of care provided to the patient, overly emotional with hospital staff, and overbearing and intimidating with the patient. In the intervening months before Ms. Swereda’s death, a total of 23 affidavits were filed between the parties on the committeeship application.

Factors that merit an award of special costs in BC committeeship proceedings

In rendering her decision, Madam Justice Shergill affirmed the following factors that merit an award of special costs in BC committeeship proceedings:

  • Was the applicant successful?
  • Was the application in the best interests of the patient?
  • Was the application brought in good faith?
  • Would the applicant receive a benefit from appointment as committee?
  • Does the estate have the ability to bear an order for costs?

In Madam Justice Shergill’s view, Ms. Jumaga had satisfied the requisite criteria and was awarded her special costs payable out of Ms. Swereda’s estate. It was evident from the voluminous affidavit material filed by both sides that Ms. Jumaga was a vocal and forceful advocate who at all times was trying to act in good faith and in the patient’s best interests. Ms. Jumaga stood to derive no personal benefit from the appointment. She was a supportive and loving family member and had a good prospect of succeeding in her application for committeeship. The estate, which exceeded $1 million in assets, could bear the costs award.

PGT also awarded special costs out of the patient’s estate

Ms. Jumaga submitted that the PGT should not receive its special costs in light of the unnecessarily aggressive stance it took against the petitioner by making personal attacks. Rather than working with the only person that was taking an interest in the patient’s wellbeing, the PGT took a needlessly adversarial stance with Ms. Jumaga. What should have been a fairly straightforward matter took an enormous amount of resources to complete. Madam Justice Shergill agreed that the PGT was “far more aggressive than necessary, and took steps that were not always logical.” Nevertheless, the PGT was awarded special costs, payable out of Ms. Swereda’s estate, for the same reasons which supported the making of an award of special costs to the petitioner. The PGT was attempting to act in the best interests of the patient, and while its actions may have been overzealous, Madam Justice Shergill did not find that the PGT’s position was motivated by any improper reasons.

Take home point on costs consequences to the patient’s estate

Special costs are a discretionary award and may be ordered in committeeship proceedings. A successful party in BC committeeship proceedings is typically awarded special costs from the patient’s estate, as it is generally understood that such applications are brought for the benefit of the patient. The court may deviate from the usual practice if, for example, the application was not brought in good faith. Overzealousness and aggressiveness do not necessarily preclude an award of special costs, as the Swereda case demonstrates. However, this standard may only apply to the PGT.