Aujla v. Dhaliwal

2025 BCSC 72 Aujla v. Dhaliwal

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Aujla v. Dhaliwal, 2025 BCSC 72 Date: 20250117 Docket: S246089 Registry: New Westminster Between: Kashmir Kaur Aujla and Shinder Aujla Plaintiffs And Randeep Dhaliwal Defendant - and - Docket: S246533 Registry: New Westminster In the Matter of the Estate of Bhabjit Singh Aujla, Deceased Before: The Honourable Mr. Justice Tindale (Appearing by videoconference) Reasons for Judgment In Chambers Re: Costs Counsel for the Plaintiffs appearing by videoconference: J.J. Wingson, KC K. Hemmati Counsel for the Defendant appearing by videoconference: J.L. Porciuncula Place and Date of Hearing: New Westminster, B.C. October 24, 2024 Place and Date of Judgment: New Westminster, B.C. January 17, 2025 Background [1] On October 1, 2020 Bhabjit Singh Aujla (the "Deceased") died intestate in a boating accident. The Deceased is survived by his mother Kashmir Kaur Aujla and his father Shinder Aujla (collectively the "Parents"). [2] Prior to the Deceased's death he was in a romantic relationship with Randeep Dhaliwal ("Reenu"). [3] On October 13, 2022 the Parents filed a Notice of Civil Claim court file no. S-246089 in the New Westminster Registry (the "Action") seeking the following relief: a) a declaration that the Defendant, Randeep Dhaliwal, was not a spouse of the Deceased, pursuant to s. 2 of the Wills, Estates and Successions Act, S.B.C.

2009, ch. 13 ("WESA") at the time of the Deceased's death on October 1, 2020; b) a declaration that the Plaintiffs, Kashmir Kaur Aujla and Shinder Aujla as the parents of the Deceased are the intestate heirs of the Deceased's estate, pursuant to s. 23 of WESA; c) costs; and d) such further and other relief as to this Honourable Court seems just and fit. [4] On November 7, 2022 Reenu filed a Response to Civil Claim opposing all of the relief sought by the Parents in the Action. [5] On November 7, 2022 Reenu also filed a Petition court file no. S- 246533 in the New Westminster Registry (the "Petition") seeking the following relief: a) A declaration that Randeep Dhaliwal is a spouse of the Deceased, Bhabjit Singh Aujla, pursuant to s. 2 (1) of the Wills Estates and Succession Act, S.B..C 2009 c. 13 ("WESA"); b) A declaration that Randeep Dhaliwal is the sole intestate heir of the Deceased's estate pursuant to s. 20 of WESA; c) An order that the Notice of Dispute (Caveat V24582) filed in relation to the estate of Bhabjit Singh Aujla, Deceased, by Kashmir Kaur Aujla be removed; d) costs; and e) for such other relief as to this court may deem appropriate. [6] On November 28, 2022 the Parents filed a Notice of Application in the Petition proceeding (the "Parents' Application") seeking procedural orders that the Petition be stayed in favour of the Action or in the alternative that the

Petition be consolidated with the Action. [7] On December 7, 2022 Reenu filed an Application Response to the Parents' Application opposing all of the relief sought. [8] On December 2, 2022 Reenu filed a Notice of Application in the Action ("Reenu's Application") seeking an order that the Action be dismissed. [9] On December 12, 2022 the Parents filed an Application Response to Reenu's Application opposing all of the relief sought. [10] On April 30, 2024 Reasons for Judgment (the "Reasons") were pronounced with regard to the Parents Application and Reenu's Application (the "Applications"). The following orders were made: a) The Petition is stayed in favour of the Action; b) Reenu's Application is dismissed; c) The Parents are entitled to their costs of these applications; and d) The parties are granted leave to address the court as to whether or not these costs should be special costs. [11] The Parents seek special costs for the Applications. [12] Reenu is opposed to the Parents being awarded special costs. Position of the Parties Parents [13] The Parents argue that they were proactive in encouraging Reenu that if she commenced any proceedings it should be by way of a notice of civil claim. The Parents say that they sent letters on April 14, 2022 and October 11, 2022 stating that petition proceedings were not appropriate in the circumstances of the case at bar. [14] The Parents

note that after Reenu filed the Petition they sent a letter on November 18, 2022 to Reenu outlining their position that the Petition was a mirror image of the Action and indicated they would be seeking special costs if the Petition was not abandoned. [15] The Parents argue that the Petition was unnecessary and that Reenu was made aware that the Parents would be seeking special costs. [16] The Parents argue that the Petition is a duplicative proceeding to the Action. [17] The Parents argue that inconsistent pleadings can amount to an abuse of process because principles such as judicial economy, consistency, finality and the integrity of the administration of justice are violated: Glover v. Leakey 2017 BCSC 1287 at para. 42. [18] The Parents argue that Reenu's filing of the Petition based on the same facts and seeking substantially the same relief as in the Action is reprehensible and they should be awarded special costs. Reenu [19] Reenu argues that special costs should only be ordered if this court is satisfied that she has engaged in some form of reprehensible misconduct deserving of rebuke. [20] Reenu argues that the Parents must present this court with evidence of improper motive, abuse of the court's process, misleading the court and persistent breaches of the rules of professional conduct and the Rules of Court that prejudiced the applicant before an award of special costs

can be made. [21] Reenu argues that the decision to file the Petition was done with proper motivation and good faith. Reenu says that she made several attempts to have the Parents mediate a resolution to this dispute. She also made extensive disclosure of documents to the Parents which she was not required to do in the Petition proceeding. [22] Reenu says that the Parents were aware that she was going to file a Petition and they filed the Action in any event. [23] Reenu argues that the case law does not provide a single definitive answer as to whether or not a determination of spousal status pursuant to WESA should be by way of a petition or a notice of civil claim. Reenu believed that her proceeding seeking a declaration of spousal status was properly done by either petition or notice of civil claim. [24] Reenu argues that caselaw such as Knelson Estate, 2020 BCSC 134 allowed cross-proceedings to be heard together. [25] Reenu argues that despite being unsuccessful in her argument she did not maliciously or intentionally take any frivolous positions and conducted herself in a manner that she believed was supported by the law. [26] Reenu argues that in estate litigation the court has discretion to decide that costs are appropriately borne by the estate. Reenu argues that the Parents' costs should be payable by the estate and assessed following the conclusion of the Action. [27]

Reenu argues that there is no evidence that her positions amount to an abuse of process. Her actions were taken in good faith and there should not be an award of special costs made. Decision [28] The following findings in the Reasons are relevant to the issue of costs: (54) There does not appear to be a single definitive answer in the case law as to whether or not a determination of spousal status pursuant to WESA should be by way of a petition or a notice of claim. The WESA does not specify how such a proceeding should be commenced. (63) The Action and the Petition are practically mirror images of one another which involve the same parties, the same relief and the same witnesses. (65) litigating both the Action and the Petition would create inefficiencies and waste for the parties and the court as well as raising the possibility of inconsistent or conflicting judgments. (71) The Action and the Petition ultimately seek declarations as to who the intestate heirs of the Deceased's estate are pursuant to WESA. The core objective of both the Action and the Petition is the resolution of the competing claims by the Parents and Reenu for the Deceased's estate. (73) In my view the Petition was unnecessary as the Action had already been commenced. Further the Petition seeks substantially the same relief as in the Action and the Action is the proper manner in which to proceed given the

significant conflicting evidence regarding the spousal status of Reenu. [29] Rule 14-1 (9) of the Supreme Court Civil Rules provides that costs of a proceeding must be awarded to the successful party unless the court otherwise orders. [30] The Court of Appeal for British Columbia in Garcia v. Crestbrook Forest Industries Ltd., 1994 CanLII 2570 established the test for awarding special costs at para. 17: Having regard to the terminology adopted by Madam Justice McLachlin in Young v. Young, to the terminology adopted by Mr. Justice Cumming in Fullerton v. Matsqui, and to the application of the standard of "reprehensible conduct" by Chief Justice Esson in Leung v. Leung in awarding special costs in circumstances where he had explicitly found that the conduct in question was neither scandalous nor outrageous, but could only be categorized as one of the "milder forms of misconduct" which could simply be said to be "deserving of reproof or rebuke", it is my opinion that the single standard for the awarding of special costs is that the conduct in question properly be categorized as "reprehensible". As Chief Justice Esson said in Leung v. Leung, the word reprehensible is a word of wide meaning. It encompasses scandalous or outrageous conduct but it also encompasses milder forms of misconduct deserving of reproof or rebuke. Accordingly, the standard represented by the word

reprehensible, taken in that sense, must represent a general and all encompassing expression of the applicable standard for the award of special costs. [31] In Westsea Construction Ltd. v. 0759553 B.C. Ltd. 2013 BCSC 1352 Madam Justice Gropper derived the following principles from the authorities for awarding special costs at para. 73: a) the court must exercise restraint in awarding specials costs; b) the party seeking special costs must demonstrate exceptional circumstances to justify a special costs order; c) simply because the legal concept of "reprehensibility" captures different kinds of misconduct does not mean that all forms of misconduct are encompassed by this term; d) reprehensibility will likely be found in circumstances where there is evidence of improper motive, abuse of the court's process, misleading the court and persistent breaches of the rules of professional conduct and the rules of court that prejudice the applicant; e) special costs can be ordered against parties and non-parties alike; and f) the successful litigant is entitled to costs in accordance with the general rule that costs follow the event. Special costs are not awarded to a successful party as a "bonus" or further compensation for that success. [32] Prior to the Action or Petition being filed the parties had exchanged correspondence relating to resolution of their dispute, the proper manner to

commence any proceedings and disclosure of documents. [33] I accept Reenu's explanation that she believed commencing her proceedings by Petition was proper however she was aware that the Action had been commenced and she filed a Response to Civil Claim prior to filing the Petition. [34] As I found the Action and the Petition were mirror images of one another. [35] In my view it should have been clear to Reenu at the time she filed the Petition that the Petition was unnecessary. While filing the Petition was ill-advised not all forms of misconduct amount to reprehensible behaviour. [36] The Parents argue that filing the Petition amounts to an abuse of the court's process. The Parents rely on the decision in Woodward & Company Lawyers LLP v. The Tsilhqot'in National Government, 2021 BCSC 16, where Madam Justice Horsman (as she then was) in discussing the nature of duplicative proceedings stated the following at para. 70: It has been well established for over a century that the commencement by a plaintiff of more than one action in the same jurisdiction against the same defendant in relation to the same dispute is an abuse of process. As observed by Lord Jessel over a century ago, "[i]t is prima facie vexatious to bring two actions where one will do": McHenry v. Lewis, [1883] 22 Ch D 397. See also: Lacharity v. University of Victoria Students' Society, 2012 BCSC 1819 at paras.

24-25 [Lacharity]; Stanford v. Beazley, 2019 BCSC 671 at paras. 39-40 [Stanford]; Englund v. Pfizer Canada Inc. 2007 SKCA 62 at paras. 33-35. The fact that the plaintiffs are not the same in the duplicative proceedings is immaterial provided that there is a sufficient community of interest to establish privity between them: Lacharity at para. 27. [37] It is clear that duplicative proceedings can amount to an abuse of process however the case at bar is not a situation where Reenu commenced more than one action in the same jurisdiction, against the same defendant, in relation to the same dispute. [38] In my view based on evidence that I have before me on this application the actions of Reenu in filing the Petition while ill-advised do not amount to an abuse of process. There were no attempts by Reenu to mislead the court nor was there any persistent breaches of the rules of professional conduct. [39] There is no evidence of an improper motive for Reenu filing the Petition. [40] For all the above noted reasons I am not prepared to order special costs against Reenu. [41] I am also not satisfied given the Petition was filed after the Action that the estate should bear the costs of the Applications. Reenu took a course of action in filing the Petition which was unnecessary and as such she should be responsible for paying the Parents costs. [42] The Parents will have ordinary costs for these Applications payable by Reenu forthwith. "The Honourable Mr. Justice Tindale"