Adams v. Emmott

2000 BCSC 1812 Citation: Adams v. Emmott Date:20001215 2000 BCSC 1812 Docket: C945219 Registry: Vancouver

IN THE SUPREME COURT OF BRITISH COLUMBIA BETWEEN: JESSICA SUSAN ADAMS, AN INFANT, BY HER MOTHER AND GUARDIAN AD LITEM, STEPHANIE ELIZABETH DEERING, AND THE SAID STEPHANIE ELIZABETH DEERING

PLAINTIFF AND: KIRSTEN BARBARA EMMOTT AND CONSTANTINOS M. PAPADOPOULOS

DEFENDANTS

SUPPLEMENTARY REASONS FOR JUDGMENT

OF THE HONOURABLE MR. JUSTICE W. G. PARRETT Counsel for the plaintiff: Nathan Smith Counsel for the defendants: Duncan Manson Date and Place of Hearing/Trial: Written Submissions Prince George, BC [1] In my reasons delivered November 6, 1997 I gave leave to counsel to speak to any outstanding issues. [2] Since then counsel have raised the issue of the Public Trustee's entitlement to recover its special costs from the infant's estate. It was agreed between counsel that submissions would be made in writing and I have had the benefit of those submissions. [3] This matter originally came before me on January 9, 1997 at which time I approved the infant settlement and adjourned generally the application to approve the infant plaintiff's counsel's fees, to enable counsel for the Public Trustee to review the relevant files. [4] On October 23 and 24, 1997 I heard submissions concerning the fees. On November 6, 1997 I delivered reasons assessing those fees at $600,000 plus applicable taxes. [5] The Public Trustee now seeks an order that he is entitled to recover its special costs of this proceeding from the infant's estate, and a further order that these costs be summarily assessed. [6] The issue is addressed by s. 9 of the Infants Act, R.S.B.C. 1979, c. 196 which provides that: 9. The court may direct that the costs of a proceeding commenced by the Public Trustee, or which it is

necessary or expedient for him to attend, be taxed and paid either out of the estate of the infant or by any other person who is a party to the proceedings. [7] The leading decision on this issue is Chong v. Royal Columbian Hospital et al, May 30, 1997, Vancouver Registry No. C953391, Taylor, J. in addressing the issue found that even where no "savings" to the infant had been achieved, the Public Trustee could, in appropriate circumstances, be entitled to special costs. [8] The relevant part of the decision begins at paragraph 20: 20. I consider that it would be inappropriate were the Public Trustee to be indemnified only if successful in having the Court approve a reduced fee of an infant plaintiff's counsel. If that were the principle on which such fees were to be paid it would introduce the concept of "loser pays" into this assessment which I conclude is inconsistent with the Public Trustee's function under s.31. that function is to be of assistance to the Court in providing representation of the infant's interests independent of those of the infant's parents. While I would not foreclose the possibility of disentitlement to indemnification where an unreasonable position is taken by the Public Trustee, given the discretionary provision of s. 9 of the Infants Act, that is not the case before me.

21. What really distinguishes this case from others is that there has been no benefit conferred upon the infant's estate by virtue of Mr. Manson's efforts, as the fees were approved as presented. In my view, while that may provide the basis to argue against indemnification on the principle that the loser must pay, that concept does not apply in the context of the s. 31 mandate of the Public Trustee and her counsel, given that the role of counsel is to assist the Court by stepping into a role that may conflict with the position of the guardian, who might approve the fee.

22. Here, the position taken by the Public Trustee was one which, if accepted by the Court, would have assisted the infant. The position of the Public Trustee cannot be said to have been unreasonable; it was merely a position that was not accepted in the Court's approval of a reasonable proposed fee. 23. . . .Accordingly, I conclude that it was expedient for the Public Trustee through counsel to participate in these proceedings. The Public Trustee is entitled to indemnification of her counsel's costs of participation in these proceedings on a special costs basis out of the infant's settlement. [9] I am in complete agreement with the reasoning expressed. [10] In the present case Mr. MacLeod had entered into a 35% contingency fee agreement with the infant's guardian ad litem. Based on the $3 million settlement this would have generated a fee of $1,050,000. Mr. MacLeod argued initially to the Public Trustee and eventually at the hearing in October of 1997 that the authorities had established 25% fee as being appropriate and advanced a claim for $725,000 plus taxes and disbursements. [11] The Public Trustee rejected this formula approach and retained counsel to represent the infants interests. [12] In reasons delivered on November 6, 1997 I ruled that there was no overriding principle of an "acceptable percentage" and that every case must be carefully considered on its own facts.

In the end I found that a reasonable fee was $600,000 plus applicable taxes. [13] The net "saving" realized by the infant plaintiff were some $125,000 plus taxes. These savings flowed directly from the position taken by the Public Trustee and counsel instructed by that office. [14] I have no hesitation in finding that it was both expedient and in the infants best interest that the Public Trustee embark upon the course of action they did. [15] I have carefully reviewed the Bill of Special Costs presented on behalf of the Public Trustee. I am satisfied on the basis of that Bill of Special Costs and the details of Mr. Manson's experience and expertise, that this is a case like Richardson v. Low (May 2, 1996) Vancouver Registry No. C927555 and Cook v. Mission Memorial Hospital (May 13, 1996) Vancouver Registry No. C932683 where it is appropriate to assess the fees summarily. I assess and approve an award of special costs in favour of the Public Trustee and order that they recover a total of $12,885.61 comprised of $10,948 on account of fees, $480.95 on account of disbursements and $1,456.66 on account of taxes from the infants estate. "W.G. Parrett, J." The Honourable Mr. Justice W.G. Parrett