BARRISTERS and SOLICITORS - Liability for costs

Appeal by a lawyer from an order requiring him to pay special costs for an unsuccessful application brought by his clients, the estate executors, in the context of acrimonious estate litigation. The executors of the estate applied for the destruction of certain affidavits that had the signed settlement agreement attached and were filed in support of requests by the respondents for court‑ordered relief relevant to implementation of the settlement. The chambers judge summarily dismissed the application as unnecessary and misconceived and with costs. The chambers judge did not specify who would be responsible for those costs and asked the parties to provide a written summary of their respective positions. He then ordered the appellant to personally pay special costs.

HELD: Appeal allowed. The executors were ordered to pay party and party costs. The order was procedurally unfair. The appellant did not receive notice of the potential for a special costs award. None of the parties sought costs against the appellant personally. The appellant’s post‑hearing submissions evinced an understanding on his part that costs on the application had been ordered against his clients and that the only issue left for him to address on the matter was whether those costs should be assessed as special costs or party and party. Because of the lack of notice, the appellant was deprived of an opportunity to make submissions on whether an order for costs should be made against him personally. The failure to give the appellant notice of the potential for personal payment resulted in an unfairly imposed sanction.

Walsh v. Walsh, [2020] B.C.J. No. 1229, British Columbia Court of Appeal, R.J. Bauman C.J.B.C., D.C. Harris and J. DeWitt-Van Oosten JJ.A., August 11, 2020. Digest No. TLD-September212020006