31420-12-1 SAWRIDGE, Indian vs. ROLAND, Twinn et al

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1 Ifwelook at the Caron case, which is at Tab 12 of our brief, and at page 31, the court
2 there said that the question that was to be asked was, was the cost intervention essential to
3 enable to the provincial court to administer justice fully and effectively. And that’s in the
4 paragraph just following the quote at the top of the page. And we would submit that
5 again this doesn’t fit in this category. Here, it’s not essential to administer justice because
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justice will continue. The case will be heard. The children’s interests will be argued.
8 We--Ithink we can imagine the passion which cases like Little Sisters or Okanagan
9 were argued, because they didn’t have resources. They wouldn’t continue with important
10 litigation. And I would say that here that same passion doesn’t exist because there’s no
11 evidence of there being no money. It’s a very clear case that will continue with a full
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hearing. And so I just don’t think it is the kind of case that will proceed.
14 I think we can all assume that if the Public Trustee decides to voluntarily be here, they
15 will be able to fund the litigation as it goes, and then address costs at the end of the day,
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which is what we think is the appropriate way to proceed.
18 You had asked about the surrogate rules, and I think both you and Ms. Hutchison said it
19 is the normal course that costs are paid out of the estate. But, in fact, that is not the new
20 way that courts look at it. And in estate cases, the courts have said we now need to
21 assess it as a normal litigation case. And at the end of the day, we will say, Was this
22 appropriate. Iabsolutely admit that in trust cases, in estate cases, where it’s in issue that
23 had to come forward where the parties have acted appropriately, then at the end of the
24 day often the courts will say that costs can come -- the reasonable costs can come. But
25 it’s done at the end, not in advance. And that’s why I think the Supreme Court has been
26 so clear that the advance costs are an extraordinary remedy and you have to meet these
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tests, that the normal course is that you assess it at the end of the day.
29 THE COURT: But isn’t -- you know, everybody going into
30 estate litigation, and I don’t know if you’ll agree with this, but I mean, for years it’s -- as
31 long as the parties are litigating in good faith and it’s not just the extremely disgruntled
32 child who was never around to help mom anyway but wants a big chunk of the estate,
33 everybody going in, if it’s a good faith kind of dispute over interpretation of a Will, it’s a
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pretty safe assumption that at the end of the day the costs would come out of the estate.
36 MS. BONORA: With respect, I would say that the new trend is
37 that that is not the case. And, in fact, there have been a few decisions that have been
38 very clear saying that litigants in estate matters should not make that assumption anymore,
39 that at the end of the day litigation costs will be assessed as they normally have. And
40 there in fact have been, in my opinion, some astounding decisions where executors have
41 had to personally pay some of the costs, where in litigation that wasn’t -- which the court