In a recent B.C. decision, the applicant sought “special costs” against the respondent. The Applicant described the respondent Mary’s behaviour as “that of a ‘poster child’ for bad behavior.” 

The respondent was appointed as Estate Trustee of her mother’s estate. The respondent was removed as Estate Trustee. The Estate then brought proceedings against the respondent, claiming that she held joint accounts for the benefit of the Estate. The Estate was ultimately successful, and recovered $235,000 for the Estate. 

On the issue of costs, the new Estate Trustee sought “special costs” from the respondent. (Special costs are akin to substantial indemnity costs in Ontario: they are awarded in limited circumstances where the conduct of one of the parties is “reprehensible”. It included behavior that is scandalous or outrageous, and encompasses “milder forms of misconduct deserving of reproof or rebuke.”) 

In the matter before the court, the misconduct of the respondent included: 

• Advising the Master that she would represent herself at trial, then seeking an adjournment of the trial on the morning of the trial to obtain counsel; 
• Claiming that she was sick and not able to proceed with the trial. She was instructed to obtain a doctor’s note. She did not. “… when that tactic failed, she immediately recovered and participated in the trial, displaying none of the lack of composure evidenced earlier”; 
• Asked for permission to submit written submissions, then failed to do so; 
• Failed to produce relevant documents; 
• Gave evidence that was “non-responsive, transparent, inconsistent, and not believable”; and 
• Failed to disclose the existence of estate funds when she knew they were estate funds. 

In summary,  

Clearly, Mary’s failure to produce relevant documents, attempts to seek adjournments to retain counsel and an unsubstantiated illness, delayed the trial. Indeed, Mary appeared to be feigning illness in order to disrupt and delay the trial. During the course of the litigation, she was represented by a number of counsel. None lasted long. These were all attempts to prevent the litigation from reaching a conclusion. Such misconduct is deserving of reproof and rebuke. Her behavior was reprehensible. Her actions were an abuse of the court’s process. She sought to mislead the court and frustrated the process. 

Special costs were awarded, and the matter was referred to the Registrar of the court for the assessment of those costs. 

The decision is reported in Kolic v. Kolic, 2022 BCSC 1448 (CanLII). 

Thanks for reading. 

Paul Trudelle