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

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F25 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 6 7 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 12 13 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, 16 17 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 27 28 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 34 35 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
F26 1 atthe end of the day determined was not appropriate. And so I think that the new trend 2 inestate litigation is that it is now normal litigation and that you will look at how the 3 parties, at how they litigated, you will look at what the issues were, whether the issues 4 5 were necessary, and then determine the costs. 6 Itisour submission on the -- I don’t know if you have any other costs or questions about 7 8 the issue of costs. Ithink -- 9THE COURT: Well, one thing. You say there’s some recent 10 cases. Can you -- is that -- can you tell me any in the Court of Queen’s Bench of Alberta 11 12 or? I’m not going to put you on the spot. 13 MS. BONORA: 14 I can certainly -- 15 THE COURT: Maybe you can identify them and send them 16 17 along to me. 18 MS. BONORA: I certainly can, and I’ll certainly send them to 19 20 everyone. 21 THE COURT: 22 Okay. 23 MS. BONORA: I think Justice Moen has written a couple of 24 25 decisions about it, but I can certainly -- 26 THE COURT: 27 I’m sure she has. 28 MS. BONORA: -- get them. And Justice Veit. And I think 29 30 Justice Graesser. But Iwill certainly let you -- 31 THE COURT: 32 Okay. 33 MS. BONORA: -- give you some names of cases that you can 34 look at to see what I believe and what I would submit is the newest trend in estate 35 36 litigation. 37 THE COURT: 38 Okay. 39 MS. BONORA: I’m going to move on to the exemption from 40 liability for costs. Again, I think that it’s premature to exempt the Public Trustee from 41 costs at this stage. No one expects them to act badly. They should not be worried about
Page 4 and 5: P01 Clerk’s Stamp: COURT FILE NUM
Page 6 and 7: P03 10. The minors affected by this
Page 8 and 9: F01 Action No.: 1103 14112 E-File N
Page 10 and 11: F03 1Proceedings taken in the Court
Page 12 and 13: F05 1THE COURT: 2 3 Submissions by
Page 14 and 15: F07 1 2 The only other point I woul
Page 16 and 17: F09 1 point the Court to the author
Page 18 and 19: F11 1 inL.C. as to what exactly the
Page 20 and 21: F13 1 entire history of the members
Page 22 and 23: F15 1 make the sorts of inquiries w
Page 24 and 25: F17 1 aside this money, and now we
Page 26 and 27: F19 1 Certainly we would say that t
Page 28 and 29: F21 1 Sothat -- Imean, that’s one
Page 30 and 31: F23 1 2 Wehave, in our brief, set o
Page 34 and 35: F27 1 that exemption. Ithink that,
Page 36 and 37: F29 1 resources, have no significan
Page 38 and 39: F31 1 2 Where we look at the L.C. c
Page 40 and 41: F33 1 the, what I’ll call, the ol
Page 42 and 43: F35 1 that they have. And I’ll ju
Page 44 and 45: F37 1 she had a concern, the approp
Page 46 and 47: F39 1 Court to seek judicial review
Page 48 and 49: F41 1 Certificate of Record 2 3 I,
Page 50 and 51: F43 1Proceedings taken in the Court
Page 52 and 53: F45 1 rights, which was fundamental
Page 54 and 55: F47 1MR. MOLSTAD: Yeah. They were o
Page 56 and 57: F49 1 2 ifIcould? 3THE COURT: 4 All
Page 58 and 59: F51 1THE COURT: -- be a party? 2 3M
Page 60 and 61: F53 1 MyLord, was a very conditiona
Page 62 and 63: F55 1THE COURT: 2 Yes. Just -- 3MS.
Page 64 and 65: F57 1 2THE COURT: 3 -- you know. 4M
Page 66 and 67: F59 1 evidence before you in this a
Page 68 and 69: F61 1THE COURT: Just so you are --
Page 70 and 71: F63 1 anyone who isn’t a benefici
Page 72 and 73: F65 1 2MR. PORETTI: -- your attenti
Page 74 and 75: F67 1 Certificate of Record 2 3 I,A
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31420-12-1 SAWRIDGE, Indian vs. ROLAND, Twinn et al

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