Ellis v. British Columbia (Public Guardian and Trustee)

2019 BCSC 1006 Ellis v. British Columbia (Public Guardian and Trustee) IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Ellis v. British Columbia (Public Guardian and Trustee), 2019 BCSC 1006 Date: 20190620 Docket: S182155 Registry: Victoria In the Matter of The Patients Property Act, R.S.B.C. 1996, c. 349, and Amendments Thereto Between: Karen Ellis Petitioner And The Public Guardian and Trustee as Committee of the person and estate of Peter John Dean Respondent Before: The Honourable Madam Justice Gropper Reasons for Judgment Counsel for the Petitioner: E.C. Thomas Counsel for the Respondent: J. Horton Place and Date of Trial/Hearing: Victoria, B.C. February 6, 2019 Written Submissions: March 4, 2019 May 15, 2019 Place and Date of Judgment: Victoria, B.C. June 20, 2019 [1] Karen Ellis filed a petition to be named Peter Dean's committee in place of the Public Guardian and Trustee (PGT) on May 4, 2018. The PGT did not oppose her petition, but sought that certain terms regarding finances be put in place should this Court grant the petition. Janushka Auermann opposed Ms. Ellis' petition and took the position that the PGT should remain Mr. Dean's committee. [2] Ms. Ellis and Ms. Auermann are half-sisters. They are Mr. Dean's daughters. [3] I heard the petition on February 6, 2019 and provided oral reasons that same day. I granted the petition with the terms sought by the PGT and ordered special costs, except costs relating to two affidavits, be paid to Ms. Ellis out of Mr. Dean's estate. [4] These reasons address Ms. Auermann's submission that she should also be awarded special costs out of Mr. Dean's estate. Background [5] Mr. Dean suffers from Parkinson's disease and dementia. He lives in a care facility in Victoria. He is incapable of managing himself and his affairs. [6] In 2016, Ms. Auermann, formerly known as Janis Dean, filed a petition to be appointed Mr. Dean's committee. Ms. Ellis opposed her petition, as did Mr. Dean's brother, Russell, who filed a competing petition. [7] The litigation became acrimonious. All parties ultimately consented to the appointment of the PGT as committee of Mr. Dean's affairs and person, reflected in the order of Master Bouck on October 18, 2016. [8] Ms. Ellis and Ms. Auermann are estranged. Both sisters are suspicious of the other's motives for wanting to be committee. Prior to the PGT being appointed committee, Ms. Ellis had serious concerns about Ms. Auermann's choices relating to their father's finances and care. Upon receiving the subject petition, Ms. Auermann was concerned that Ms. Ellis would not communicate updates as to their father's status should she be successful. Law [9] Section 27 of the Patients Property Act, R.S.B.C. 1996, c. 349 [Act], provides that the costs of all proceedings under the Act are in the court's discretion. As set out in R. 14-1(9) of the Supreme Court Civil Rules, an unsuccessful party typically bears their own costs. However, as in probate litigation, the court may decide to order special costs be paid out of the estate to unsuccessful parties in committee disputes where they participated not to advance their own interests, but to protect the best interests of the patient. [10] Mr. Justice Ralph awarded costs to both parties seeking committeeship in In the matter of the Patient's Property Act re: Pritam Kaur Atwal, 2005 BCSC 660. He relied on Bush Estate (1995), 56 A.C.W.S. (3d) 589 (B.C.S.C. Chambers) at para. 24 in doing so: [24] In [Bush Estate], Master Chamberlist awarded special costs to the petitioners, who were unsuccessful in having their mother declared incapable of managing herself and her affairs. The intentions of the petitioners are thus described: The petition was commenced not to advance the interests of the petitioners but to protect the interest of the patient. The petitioners were not advancing some right or some interest or even some perceived right or interest that had vested in them as would be the case in a wills variation application or in the case of inter-party litigation. There was no benefit to be obtained by them at law. [The petitioners] were simply acting in what they perceived to be in the best interest of their mother, the proposed patient. The court cites Royal Trust Corporation of Canada v. Clarke (1989), 35 B.C.L.R. (2d) 82, [1989] 4 W.W.R. 319, and finds that although this case concluded that the successful petitioner for a committeeship should be awarded special costs, this ratio could also be extended to unsuccessful petitioners whose actions were motivated by concern for the best interests of the proposed patient. In the specific circumstances of that case, the special costs were limited in time to exclude certain expenses. [11] Mr. Justice Punnett set out the following considerations for awarding costs in Sangha (Re), 2013 BCSC 1965 at para. 114: whether the unsuccessful party brought the petition "in good faith for the benefit and in the best interests of the patient, and whether her conduct in doing so should be discouraged." [12] Both parties rely on Ng v. Ng, 2013 BCSC 1494 at para. 16 for the proposition that "in considering whether costs are payable from the estate to an unsuccessful party, the court must consider whether the petitioner was forced into bringing the petition. In other words, was the petition necessary in any event?" Position of the Parties [13] Ms. Auermann submits that she should be awarded special costs from the estate because she responded to the petition out of concern for her father. Ms. Auermann would not have received any benefit, financial or otherwise, from Mr. Dean's estate had she been successful. [14] Ms. Auermann also emphasizes that s. 18(1) of the Act requires the committee to exercise her powers for the benefit not only of the patient, but also of the patient's family. In responding to the petition, Ms. Auermann had "real concern" that Ms. Ellis would fail to act in the patient's family's interest, as she is required to by statute, were she to become committee. [15] Ms. Auermann submits the arrangement with the PGT was working for her father and so Ms. Ellis' petition was unnecessary. She submits that she "had no choice but to oppose Ms. Ellis' Petition due to her concern about the motives of Ms. Ellis, her father's well-being and to ensure she would be kept informed about her father's health." This is particularly so since she had not heard from Ms. Ellis in over two years and had no information as to why Ms. Ellis filed a new petition to be appointed committee. [16] Ms. Ellis submits the petition was necessary, since the case law makes it clear that the role of committee is better suited to a family member, and that it is Ms. Auermann's response that was unnecessary. Ms. Ellis submits that Ms. Auermann opposed the petition not out of concern for her father's well-being, but out of her own self-interest and assumption that Ms. Ellis would not keep her apprised of her father's health status. [17] Ms. Ellis submits that this Court should apply the general rule on costs, meaning that Ms. Auermann should not be awarded costs as the unsuccessful party. She argues that there was "no substantial or valid basis to oppose the application" and Ms. Auermann should have been prepared to pay the ensuing litigation costs in filing her response. Analysis [18] In my view, Ms. Auermann was not primarily motivated by her father's best interests in responding to the petition, although I do not doubt she wants what is best for her father. Ms. Auermann submits that she opposed the petition because she was concerned for her father's well-being, but she did not provide details as to why Ms. Ellis was ill-suited to be committee or how such an appointment would negatively impact Mr. Dean. [19] Her primary concern about Ms. Ellis becoming committee was not that Ms. Ellis was unqualified or would mishandle their father's affairs, but that Ms. Ellis would fail to keep her informed of any updates regarding Mr. Dean. The fact that Ms. Ellis and Ms. Auermann had not spoken in the two years prior to this petition being brought is not evidence that Ms. Ellis would fail to provide her with information upon being appointed committee. Ms. Ellis was not Mr. Dean's committee during that period and therefore had no specific reason to contact Ms. Auermann. While I understand the parties effectively do not have a relationship, personal acrimony is not cause to award special costs out of Mr. Dean's estate. [20] As for whether it was necessary for Ms. Auermann to respond, as she argues it was, I disagree. The PGT, which Ms. Auermann trusted to be her father's committee, responded to the petition promptly and consented to Ms. Ellis being appointed. Ms. Auermann was certainly allowed to respond, but I fail to see why it was necessary that she do so. [21] This situation does not warrant a departure from the ordinary rule on costs: Ms. Auermann was the unsuccessful litigant. Nevertheless, she is not required to bear Ms. Ellis' costs. However, there is no reason that she should be entitled to her costs from the estate, special or otherwise. [22] Ms. Auermann's application for costs to be paid out of Mr. Dean's estate is dismissed. "Gropper J."