Catastrophically Injured Infant Ordered to Pay Public Trustee $79,000 in legal fees for legal fee review

Reasons for judgement were released this week by the BC Supreme Court, Victoria Registry, discussing the circumstances when BC’s Public Guardian and Trustee can recover legal fees for their involvement in the scrutiny of the settlement of an injury claim involving an infant.
In this week’s case (E.B. v. Basi) the infant plaintiff was catastrophically injured while in foster care during an alleged intentional ”shaken baby” assault.  The incident led to profound lifelong disability requiring a lifetime of care needs.  A $13,000,000 settlement was ultimately reached and judicially approved.   The lawfirm involved sought contingency fess of over $3,000,000.  The Public Trustee, who was required by statute to weigh in on the matter, intervened and submitted that fees of $2,000,o00 were appropriate .  Ultimately the Court approved fees of $2.4 million.
The Public trustee incurred legal fees of over $79,000 in the process of intervening in the fee approval process.  They sought, pursuant to Section 10 of the Infants Act, to recover this from the infant’s lawyers or, in the alternative, from the infant’s estate.  Mr. Jutice Macaulay held that while the Public Trustee’s legal fees were “clearly high” they were ultimately reasonable.
The Court went on to hold that while section 10 of the Infants Act would technically allow for these fees to be payable from the Infants lawyers, absent ‘reprehensible conduct‘ by the lawfirm such an order would be inappropriate   The Court held that the infant’s estate was liable to pay the Public Trustee’s costs.  In finding that the fees should not be levied against the Plaintiff’s counsel the Court provided the following reasons:
[21]         I now turn to whether the Firm can be held partially responsible for this sum. As was noted earlier, indemnification of the PGT is governed by s. 10 of the Infants Act, which allows the court to direct that the PGT’s costs be paid out of either the estate of the infant or by “any other person who is a party to the proceeding.”
[22]         On its face, s. 10 does not appear to contemplate that the infant’s lawyer could be responsible for the PGT’s costs. However, returning to the analysis in Harrington, the Firm is properly characterized as a party in this proceeding. In Harrington, the Court of Appeal awarded special costs against the lawyer on the basis of that determination. The logical conclusion is that I have jurisdiction to make an award of ordinary costs against the Firm, although I am not aware of the court ever making such an award.
[23]         This case differs from Harrington in that there are no grounds here for an award of special costs. The Firm did not engage in reprehensible conduct deserving of rebuke (Garcia v. Crestbrook Forest Industries Ltd. (1994), 119 D.L.R. (4th) 740). In my view, the Firm took a position on time spent that was unreasonable, but I would not characterize it as reprehensible based on the continuum of behaviour discussed in Garcia and other cases. As such, the only remaining possibility is that the Firm be liable for an award of ordinary costs.
[24]         I have already discussed the potential dangers of shoehorning the traditional analysis for an award of costs to the present proceeding. I am not convinced that there is any “successful” party with regard to fee approval.
[25]         The process mandated by the Infants Act is intended to ensure that the amount of the fee is in the infant’s best interests. The PGT, on behalf of the infant, does not take an adversarial role against the infant’s lawyer. The Firm has an obvious self-interest in the outcome but is not opposing the best interests of the infant.
[26]         Absent any basis to award special costs, I decline to award costs against the Firm.

bc injury law, E.B. v. Basi, Infants Act, Mr. Justice Macaulay, Public Guardian and Trustee, section 10 Infants Act

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ERIK
MAGRAKEN

Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

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