Costs Award in Gould v. Royal Trust

Barbara Gould applied to vary the will of her late mother, Sylvia Gould, under the Wills Variation Act. The Court ruled against her on that issue, but did award her $75,000 out of her mother’s estate for unjust enrichment for the care she provided to her mother, and the funds she expended on her. I wrote about this decision here.

In British Columbia, the court usually awards the successful party court costs against the unsuccessful party. What happens in a case like this where Barbara Gould’s brothers were successful as beneficiaries of their mother’s will in defending the Wills Variation Act claim, but Barbara Gould was successful in her claim for unjust enrichment?

Although in most cases the court will determine who was substantially successful, and award that party his or her costs, the court may apportion costs where the court finds that success was divided between the parties.

Mr. Justice Pearlman, in Gould v. Royal Trust Corp. of Canada, 2010 BCSC 16, released on January 8, 2010, found that it was appropriate to apportion costs between the plaintiff, on the one hand, and her brothers, on the other. There were two separate and discrete issues in the lawsuit: the Wills Variation Act claim, and the unjust enrichment claim. The court could weigh the approximate amount of time spent on each issue, and the relative importance of each issue to the parties. Apportionment would be just in this case.

Applying these criteria, Mr. Justice Pearlman wrote:

[28] In my view, taking into account not only the allocation of trial time between the two discrete issues in this litigation, but also the relative importance of those issues to the parties, a fair apportionment of costs is 30 percent to the plaintiff and 70 percent to the personal defendants. That apportionment produces a just result in so far as it reflects the plaintiff’s partial, but limited success at trial, and also recognizes the measure of success achieved by the personal defendants in opposing the Wills Variation Act claim.

[29] The plaintiff is entitled to 30 percent of her costs assessed at Scale B from the personal defendants and the personal defendants are entitled to 70 percent of their costs assessed at Scale B from the plaintiff.

These Scale B costs do not reflect the full amount each party’s legal fees and expenses, but are determined according to tariffs under the Supreme Court Rules.

The executor, Royal Trust Corp. of Canada, which played a neutral role in the lawsuit, is entitled to be fully indemnified for its reasonable legal expenses out of Sylvia Gould’s estate.