10.29: General rule for payment of litigation costs
10.31: Court-ordered costs award
10.47: Liability of litigation representative for costs

Case Summary

The Appellants were the Trustees of the Sawridge Trust, who sought advice and direction from the Court with respect to changing the designation of beneficiaries under the Trust. The Chambers Justice, dealing with preliminary matters, noted that children who could be affected by the change were not represented by counsel and ordered that the Public Trustee be notified. Subsequently, the Public Trustee applied to be named as a litigation representative for potentially interested children. That Application, which was opposed by the Trustees, was granted. The Public Trustee was awarded advance Costs on a solicitor-client basis to be paid by the Trust, and was exempted from liability for any other Costs of litigation. The Trustees appealed the Order as it related to Costs and the exemption.

The Trustees argued that the Chambers Justice erred in awarding advance Costs on a solicitor-client basis and in concluding that the criteria set by the Supreme Court of Canada for awarding advance Costs did not apply. The Court disagreed, and held that the Chambers Justice correctly found that the criteria with respect to advance Costs did not apply. The criteria are applicable to adversarial situations in which an impecunious private party wishes to sue another private party or public institution, and wants the party to pay its Costs in advance. The Court held that such circumstances were not applicable in the case before it. The role of the Public Trustee, while perhaps not neutral, could not be characterized as adversarial. A wide discretion was conferred with respect to the granting of Costs under the Trustee Act, the appointment of a litigation representative pursuant to the Rules of Court, and in the exercise of parens patriae. The Court held that this discretion was sufficiently broad to encompass an award of advance Costs in the circumstances. As such, the Chambers Justice did not err in awarding advance Costs in these circumstances. The children’s interests required protection and it was necessary to award advance Costs in order to secure the independent representation of the Public Trustee.

The Appellants further argued that the Chambers Justice erred in exempting the Public Trustee of any responsibility to pay Costs. The Court held that an independent litigation representative could be dissuaded from accepting an appointment if it were subject to liability for a Costs award. An exemption from Costs, while unusual, was not unheard of, and had been granted in other circumstances involving litigation representatives. In this context, the Court dismissed the Appeal.

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