



COURT 
    OF APPEAL FOR BRITISH COLUMBIA




Citation:


J.A.S. 
          v. H.M.







2008 
          BCCA 5



Date: 20080109

Dockets: CA033543 and CA033861

Docket: CA033543

Between:

J. 
    A. S.

Respondent

(
Plaintiff
)

And

N. 
    J. S.

Respondent

(
Defendant
)

And

H. 
    M.

Appellant

(
Defendant
)

-  and  -

Docket: CA033861

Between:

J. 
    A. S.

Respondent

(
Plaintiff
)

And

H. 
    M.

Appellant

(
Defendant
)




Before:


The 
          Honourable Madam Justice Prowse




The 
          Honourable Mr. Justice Smith




The 
          Honourable Mr. Justice Chiasson








G.Turriff, 
          Q.C.


Counsel for the Appellant




M.A. 
          Dunnaway


Counsel for the Respondent




Place 
          and Date of Hearing:


Vancouver, British Columbia




October 9, 2007




Further 
          Written Submissions:


October 25 & 31, 2007




Place 
          and Date of Judgment:


Vancouver, British Columbia




January 9, 2008








Written 
          Reasons by
:




The 
          Honourable Madam Justice Prowse




Concurred 
          in by:




The 
          Honourable Mr. Justice Smith

The 
          Honourable Mr. Justice Chiasson



Reasons 
    for Judgment of the Honourable Madam Justice Prowse:

INTRODUCTION

[1]

These appeals arise from a bitterly contested custody and access battle 
    between J.A.S. and B. over their daughter and son, who were 4 and 2 years 
    of age when the litigation began in July 2000.  At the conclusion of the trial, 
    and based largely on B.s conduct in persistently disobeying court orders 
    providing that J.A.S. have access to the children, the trial judge awarded 
    sole custody and guardianship of their daughter to J.A.S.  The parties son 
    died shortly after the trial concluded as a result of a sudden illness.

[2]

The trial judge found that B.s mother, H.M., financed and actively 
    supported B. in this litigation, and that she aided and abetted B. in her 
    breaches of court orders.  In the result, he found that the conduct of both 
    B. and H.M. was reprehensible and justified orders for special costs against 
    them.  He dismissed a related application by J.A.S. for special costs against 
    one of the lawyers who had acted for B. prior to trial (Mr. Bjurman).

[3]

H.M. is appealing, with leave, from the two orders awarding special 
    costs against her.  The first appeal is from an order, made October 26, 2005, 
    providing that she is jointly and severally liable for J.A.S.s special costs 
    throughout.

[4]

The second appeal is from an order made February 8, 2006, providing 
    that H.M. is liable for special costs of the special costs application and 
    any subsequent proceedings to assess costs.

[5]

In pursuing these appeals, H.M. also challenges two orders (the waiver 
    orders) made by the trial judge during the course of the costs proceedings.  
    The first order, made September 9, 2003, requires that all of B.s previous 
    lawyers produce all records and notes in their possession of telephone conversations, 
    correspondence to and from, and meetings with [H. M.], with respect to this 
    proceeding, up to, during and after the trial of this matter, until March 
    26, 2003.

[6]

The second order, made July 9, 2004, provides that ... solicitor/client 
    privilege respecting Trevors Bjurmans retainer in this action be waived.

[7]

H.M. does not challenge a further order made by the trial judge on 
    March 29, 2004, waiving privilege over Mr. Bjurmans file in this matter to 
    the extent necessary to enable Mr. Bjurman to consult with and instruct counsel 
    with respect to the application for special costs against him.

ISSUES ON APPEAL

[8]

H.M. submits that the trial judge erred in:

(1)  
    Waiving privilege over B.s file, in whole or in part;

(2)  
    Making an order for special costs in circumstances where H.M. was not provided 
    with a fair process for defending herself against this claim;

(3)  
    Ordering that H.M. pay special costs of the special costs hearing in the absence 
    of any reprehensible conduct of H.M. in relation to that hearing;

(4)  
    Ordering that H.M. pay special costs for steps in the action, including an 
    assessment of costs, that had not occurred when the order for special costs 
    was made.

CONCLUSION

[9]

For the reasons which follow, I conclude that the appeal must be dismissed.  
    I am not persuaded that the process followed by the trial judge in making 
    the orders for costs against H.M. was unfair.  Further, I am satisfied that 
    he was correct in ordering H.M. to pay special costs of the special costs 
    proceedings and any subsequent proceedings for an assessment of costs.

[10]

While there is a basis for arguing that the trial judge erred in making 
    the waiver orders with respect to some or all of the contents of B.s file, 
    I am not persuaded that H.M. has any standing to challenge those orders for 
    her own benefit on this appeal, on the basis that the privilege waived by 
    the trial judge was that of B. and was a personal right to her.  I note that 
    B. is not a party to this appeal.

BACKGROUND

[11]

The background giving rise to the special costs orders is lengthy, 
    involving numerous applications before several judges with respect to custody 
    and access.  The proceedings were also complicated by parallel proceedings 
    for custody and access brought by B. in Hawaii where she had moved with the 
    children in 1999.  Those proceedings were eventually resolved by the courts 
    in Hawaii declining jurisdiction in favour of the B.C. Supreme Court.

[12]

As a matter of convenience, and to provide some context for the ensuing 
    discussion of the waiver orders and special costs orders which are the subject 
    of this appeal, I will refer to the more relevant litigation history in point 
    form, as follows:

1) 
     J.A.S. and B. were not married, but cohabited from August 1995 to October 
    1999.

2) 
     They had a daughter and a son, born July 10, 1996 and April 17, 1998, respectively.

3) 
     In 1998, J.A.S. told B. of intrusive sexual thoughts he had concerning their 
    daughter and advised her that he may have been abused as a child.  This revelation, 
    together with allegations that J.A.S. had threatened violence to B., the children 
    and H.M., became the focus of B. and H.M.s concerted and unrelenting efforts 
    to deny J.A.S. access to the children.  (I note at this point that the trial 
    judge accepted medical evidence which stated that J.A.S. did not represent 
    a danger to the children.)

4)  
    Around Christmas 1999, B. advised J.A.S. she was taking the children to Hawaii 
    for a vacation.

5)  
    On December 27, 1999, B. moved to Hawaii with the children with the financial 
    assistance of H.M.  (J.A.S. did not see the children again until October 2001.)

6)  
    In May 2000, B. married Mr. B., an American citizen she met in Honolulu.

7)  
    On June 30, 2000, J.A.S.s brother saw B. when she was in Vancouver for a 
    few days with the children staying at H.M.s apartment. J.A.S. sought and 
    obtained an interim
ex parte
order from Smith J. on July 2, 2000 giving 
    the parties interim joint custody of the children and ordering that B. not 
    remove them from British Columbia.  This order was served substitutionally 
    on H.M. on July 3, 2000.  The trial judge found that B. had notice of this 
    order before returning to Hawaii with the children that evening and rejected 
    the evidence of B. and H.M. to the contrary.  He eventually found B. in contempt 
    of this order.

8)  
    In September 2000, B. obtained an
ex parte
order in proceedings for 
    custody she had commenced in Hawaii, temporarily restraining J.A.S. from having 
    any contact with the children.  She used that order to deny J.A.S. telephone 
    access to the children which had been ordered by Madam Justice Satanove on 
    September 21, 2000.

9)  
    B. denied J.A.S. access in Hawaii in January 2001, contrary to the order of 
    Mr. Justice Hood made December 13, 2000, as amended by Master McCallum on 
    January 24, 2001 to provide for unsupervised access.  B. subsequently admitted 
    that she hid with the children at an address unknown to J.A.S. when he travelled 
    to Hawaii with his mother to exercise access in January.

10)  
    The custody and access trial began in August 2001 in Vancouver.  At the conclusion 
    of J.A.S.s case (as plaintiff), B. indicated her willingness to cooperate 
    in arranging access to the children by J.A.S.  The trial was then adjourned 
    on the understanding that there would be supervised access by J.A.S. to the 
    children in accordance with a report prepared pursuant to s. 15 of the
Family 
    Relations Act
, R.S.B.C. 1996, c. 28.

11)  
    In October, 2001, H.M. sent an 80 page unsolicited missive to the trial judge 
    attaching documents, including J.A.S.s medical records, a chronology of B.s 
    allegations, and documents relating to the Hawaiian proceedings, to demonstrate 
    why J.A.S. should not be granted access.  The trial judge returned this letter 
    unread by memorandum dated October 22, 2001.  (The letter was before him, 
    however, in the subsequent hearing for special costs.)

12)  
    B. removed the children to California in December 2001 to thwart J.A.S.s 
    court ordered access to them.  For this, she was found in contempt of court 
    by the trial judge on January 31, 2002 and was advised through her counsel 
    that she could purge her contempt by returning with the children by February 
    11, 2002 for the continuation of the trial on February 18, 2002.  B. did not 
    return with the children until February 15, 2002.

13)  
    At the continuation of the trial, B. acknowledged that she did not believe 
    or know that J.A.S. was a paedophile; that she had perjured herself in sworn 
    documents filed in Hawaii and in British Columbia; and that she had falsely 
    sworn that J.A.S. had threatened her, the children and H.M. with violence 
    and death.

14)  
    During the course of the trial, H.M. sent medical reports from the psychiatrists 
    who had provided opinions about J.A.S. directly to J.A.S.s relatives with 
    letters from her stating that one of the doctors had perjured himself in 
    providing an opinion that was an outright lie.  Those letters also contained 
    other scurrilous material concerning J.A.S. and his family.

15)  
    The 11 day trial concluded on March 6, 2002 and the trial judge reserved his 
    decision.

16)  
    On March 18, 2002, following the unexpected death of their son, the parties 
    and H.M. appeared before the trial judge with respect to H.M.s behaviour 
    in telling the daughter that J.A.S. was responsible for her brothers death 
    and in assisting the daughter in calling J.A.S. to advise if he did not return 
    the daughters belongings she would call 911.  H.M, B. and Mr. B. agreed that 
    they would do nothing more to interfere with the re-establishment of a normal 
    relationship between the daughter and J.A.S.

17)  
    On March 25, 2002, the trial judge issued reasons for judgment awarding J.A.S. 
    sole custody and guardianship of their daughter with liberal access by B., 
    to be exercised in Vancouver.

18)  
    On October 7, 2002, J.A.S. applied to add Mr. Bjurman and H.M. as parties 
    for the purpose of seeking special costs against them jointly and severally 
    with B., and requested directions as to the manner of hearing.

19)  
    On March 26, 2003, the trial judge made an order adding H.M. as a party and 
    ordering that the file be unsealed.  (Mr. Bjurman was not added as a party, 
    but special costs against him were pursued under Rule 57(37) of the
Rules 
    of Court
, B.C. Reg. 221/90 (the Rules)).

20)  
    On July 23, 2003, J.A.S. filed an application seeking, amongst other things, 
    an order:

2.  That 
    all previous counsel for [B.] including Trevors Bjurman, Jack Aaron, and Stephen 
    Mansfield, produce forthwith to counsel for [J.A.S.] all records and notes 
    in their possession of telephone conversations, correspondence to and from, 
    and meetings with, [H.M.], up to, during and after the trial of this matter 
    until the date that [H.M.] was named a party in this proceeding;

21)  
    On September 9, 2003, the trial judge made an order which included the terms 
    requested in the immediately preceding paragraph.

22)  
    On October 1, 2003, B. filed a Notice of Appeal with respect to this order, 
    followed by a Notice of Abandonment filed November 27, 2003.

23)  
    On March 5, 2004, Mr. Bjurman applied for an order seeking, amongst other 
    things:

2.  that 
    solicitor/client privilege respecting Trevors Bjurmans retainer in this action 
    be waived to the extent that Mr. Bjurman be permitted to provide his counsel, 
    Carla Forth, with a complete copy of his file and to discuss with his counsel, 
    Carla Forth, any and all communications between Mr. Bjurman and [B.] and/or 
    [H.M.] and any agents retained on their behalf;

24)  
    On March 29, 2004, the trial judge made an order in accordance with item 2 
    of the application referred to in para. 23,
supra
, and also requiring 
    that counsel for J.A.S. file and serve draft written submissions with respect 
    to the special costs application within two weeks.

25)  
    On July 6, 2004, Mr. Bjurman applied for an order:

1.  that 
    solicitor/client privilege respecting Trevors Bjurmans retainer in this action 
    be waived to the extent that Mr. Bjurman be permitted to swear an Affidavit 
    responding to the allegations made against him but that the waiver of privilege 
    will be limited to the specific communications set out in the Affidavit and 
    not a general waiver of solicitor/client privilege over the entire file;

pursuant 
    to the inherent jurisdiction of the court.

26)  On 
    July 9, 2004, the trial judge made an order waiving solicitor-client privilege 
    over the entire file.

27)  
    On October 26, 2005, the trial judge made an order dismissing the application 
    for special costs against Mr. Bjurman, but awarding special costs against 
    H.M. and B. jointly and severally throughout.

28)  
    On February 8, 2006, the trial judge made an order that H.M. pay special costs 
    of the special costs hearing and of all future proceedings to assess costs.

[13]

As earlier noted, it is the orders with respect to special costs referred 
    to in paras. 27 and 28 which are the direct subjects of this appeal.  However, 
    the orders referred to in items 21 and 26 dealing with waiver of solicitor-client 
    privilege were also challenged by H.M. on this appeal.

A PRELIMINARY ISSUE - WAIVER

[14]

Counsel for J.A.S. submits that this Court should not consider the 
    validity of the waiver orders on this appeal since no appeal was taken from 
    those orders at the time they were made in 2003 and 2004 (or, more accurately, 
    B. filed an appeal against the first waiver order, but then abandoned it). 
     Counsel for J.A.S. stated that H.M. never asserted an independent right of 
    privilege in relation to the communications covered by the waiver orders, 
    and submits that it is not open to her to assert a claim of privilege on appeal.

[15]

In reply, counsel for H.M. submits that the waiver orders should be 
    treated as rulings made in the course of the ongoing proceedings on costs 
    which were subsumed in the costs orders and which did not require a separate 
    application for leave to appeal.  Counsel acknowledges that H.M. did not assert 
    an independent right of privilege at trial with respect to the communications 
    in issue and, for that reason, he does not assert an independent right of 
    privilege on appeal.  He states, however, that none of the authorities before 
    the Court specifically precludes H.M. from challenging the waiver orders at 
    issue, and that it is a relevant consideration in that regard that H.M. acted 
    as an agent of B. for the purpose of communicating with her lawyers prior 
    to, and during the course of, the trial.

[16]

I do not find it necessary to determine whether the waiver orders should 
    have been the subject of a separate appeal or appeals.  In my view, it is 
    clear that H.M. has no standing to challenge those orders for her own benefit 
    in any event.  She did not, and does not, assert that she had any privilege 
    in the communications at issue.  She acknowledges that it was B. who enjoyed 
    the privilege in those communications with her counsel and that, at most, 
    H.M. acted as an agent or conduit of B. in facilitating those communications.  
    In my view, the fact that H.M. was an agent for the purpose of facilitating 
    B.s communications with counsel is of little moment in determining whether 
    H.M. can now rely on B.s privilege in seeking to overturn the waiver orders 
    on appeal.  B. is not participating in this appeal and there is no evidence 
    that H.M. is now acting as her agent to claim the privilege on her behalf.

[17]

Counsel did not refer the Court to any authorities which address this 
    issue directly.  It is apparent from the authorities to which we were referred, 
    however, that the solicitor-client privilege is a personal right of the client 
    which operates for the clients benefit.  The nature of the right is described 
    by Chief Justice Lamer, speaking for the court, in
Descôteaux v. Mierzwinski
, 
    [1982] 1 S.C.R. 860 at 871:

There 
    is no denying that a person has a right to communicate with a legal adviser 
    in all confidence, a right that is founded upon the unique relationship between 
    solicitor and client (
Solosky [ v. The Queen
, [1980] 1 S.C.R. 821],
supra
.)
It is a personal and extra-patrimonial right which follows 
    a citizen throughout his dealings with others.
Like other personal, extra-patrimonial 
    rights, it gives rise to preventive or curative remedies provided for by law, 
    depending on the nature of the aggression threatening it or of which it was 
    the object ...

[Emphasis added.]

[18]

The
Civil Code of Quebec
, S.Q. 1991, c. 64, arts. 2-3 
    distinguishes between patrimonial and extra-patrimonial rights, and gives 
    as an example of the latter the right of a person in the respect of his name, 
    reputation and privacy.  Extra-patrimonial rights are described as inalienable.

[19]

It is apparent from the authorities referred to in
Descôteaux
, 
    and in subsequent decisions of the Supreme Court of Canada, that the concept 
    of privilege as a personal, inalienable right is consistent in both the civil 
    and common law.  The essence of solicitor-client privilege is its personal 
    and confidential character.  While there may be instances when a third party, 
    for example, a partys solicitor, is expected (if not required) to assert 
    the privilege on behalf of his or her client, the privilege asserted is that 
    of the client for the benefit of the client.  Here, H.M. is purporting to 
    assert B.s right of privilege, not for the benefit of B., but for her own 
    benefit.

[20]

In the absence of specific authority on this point, I will refer to 
    only one case which directly addresses the question of whether a third party 
    can take the benefit of the solicitor-client privilege belonging to another.  
    In
Marston v. Downes
(1834), 1 Adol. & El. 31, 110 E.R. 
    1119 (K.B.), the attorney for a non-party gave parol evidence regarding a 
    deed to the detriment of the defendants in that case, in circumstances where 
    that evidence was arguably privileged.  On the point being reserved to the 
    full court, Denman C.J. held that, even if the judge had erred in admitting 
    the attorneys evidence, the defendants could not advance the error because 
    the privilege did not belong to them.  At p. 34 of the decision, he stated:

...whether 
    or not the privilege of the mortgagee extended to protect him from the attorneys 
    giving parol evidence of the contents of the deed, still the evidence having 
    actually gone before the jury, the defendants were not a privileged party; 
    and they, therefore, had no right of objection, even on the supposition that 
    the learned Judge had done wrong.

[21]

I also note that, in
Wigmore, Evidence in Trials at Common Law
, 
    McNaughton Revision, vol. 8 (Boston: Little, Brown & Co., 1961) at para. 
    2196, the author discusses the consequences of an incorrect ruling on privilege 
    (including solicitor-client privilege) on third parties adversely affected 
    by the result:

(2)  
    But what if the court
rules improperly
on the claim of privilege?  
    (a) If the ruling
denies the privilege
and compels the witness to testify, 
    there is no legitimate ground for exception by the party against whom the 
    evidence weighs. By hypothesis, the privilege does not exist for the benefit 
    of the party nor for the sake of the better ascertainment of the truth of 
    his cause.  The offered testimony is relevant and is, in all other respects 
    than the privilege, admissible.  The admission of it, by denying the privilege, 
    has not introduced material which in any way renders less trustworthy the 
    finding of the verdict.  On the contrary, only the exclusion of it could have 
    been an obstacle to the ascertainment of the truth.  The only interest injured 
    is that of the privileged person.  His remedy  if, as is usually the case, 
    he was a witness, was to refuse to obey and to appeal for vindication if the 
    court has attempted improperly to use compulsory process of contempt.

[Emphasis in original.]

[22]

In my view, this analysis can be applied to the solicitor-client privilege 
    in this case.  While B. had standing to appeal the orders denying her the 
    benefit of her solicitor-client privilege in the communications with her lawyers, 
    H.M., who claimed no personal privilege in those communications, had no basis 
    for appealing on her own behalf.

[23]

In summary, because H.M. has conceded that she is not in a position 
    to assert privilege on her own behalf with respect to the two waiver orders, 
    and because I have concluded that she has no right to assert or take the benefit 
    of any privilege B. enjoyed over the communications in issue, I find there 
    is no foundation for setting aside those orders on appeal.  Similarly, there 
    is no basis for finding that the trial judge erred in relying on the contents 
    of those communications in making his order for special costs.

[24]

Based on this conclusion, it is unnecessary for me to analyze the other 
    issues raised by counsel with respect to the issue of waiver.

DISCUSSION OF THE ISSUES

(a)
The Trial 
    Decision

[25]

The starting point for an analysis of the special costs orders are 
    the findings of the trial judge in his reasons for judgment of March 25, 2002 
    following the trial.  Those findings set the stage for J.A.S.s claims for 
    special costs against B., H.M. and Mr. Bjurman.  In that regard, it is noteworthy 
    that, although H.M. was not a party to the proceedings at the time those reasons 
    were rendered, she had provided affidavit evidence in the course of the proceedings 
    to which the trial judge made reference in his reasons.

[26]

The more significant findings of the trial judge in relation to the 
    eventual claim against H.M. for special costs include the following:

(1)  
    He rejected as a fabrication the evidence of H.M. and B. denying that they 
    had been served with the order of Mr. Justice Smith, made July 2, 2000, and 
    found that B. had taken the children to Hawaii in contravention of that order, 
    with the assistance of H.M. (para. 37).

(2)  
    He found B.s evidence that she and H.M. hated his [J.A.S.s] guts was consistent 
    with them embarking on a concerted plan to prevent J.A.S. from contacting 
    the children (para. 38).

(3)  
    He found that H.M. financed the plan by paying for lawyers in British Columbia 
    and Honolulu; by acting as a go-between for the lawyers and B.; and by financially 
    supporting B. and the children in Honolulu (para. 39).

(4)  
    He inferred that H.M. had called the police in Honolulu in an attempt to block 
    J.A.S.s access to the children in January 2001 (paras. 46 and 47).

(5)  
    He found that H.M., B. and Mr. Bjurman frustrated J.A.S.s access in January 
    2001 by wrongly insisting it be supervised (para. 49).

(6)  
    He found that This conduct amounted to a deliberate and egregious disobedience 
    of this courts orders. (para. 50).

(7)  
    He found that H.M., B. and Mr. B. made unjustified complaints about the supervision 
    of J.A.S.s access in late September and early October 2001 after the trial 
    was adjourned (para. 56).

(8)  
    He found that H.M. improperly disclosed J.A.S.s medical records to his family 
    together with letters containing groundless complaints impugning the professional 
    reputation of one of the doctors.  He observed that the tone and content of 
    H.M.s letters is so reckless and scurrilous as to indicate that she wrote 
    them for no other purpose than to denigrate the father and others, including 
    Dr. [name omitted], who H.M. regarded as supportive of the father.  If any 
    corroboration were necessary of the mothers statement that both she and H.M. 
    [sic] hated his guts these letters provide it. (paras. 68-70).

(9)  
    He found that both H.M. and B. were motivated to make false statements about 
    J.A.S. by their admitted hatred of him and their desire to get him out of 
    their lives and that of the children.  He further found that H.M. encouraged 
    B. in her actions by instructing counsel on the mothers behalf and by actively 
    discrediting the father in the letters just referred to, in affidavits and 
    in false reports she made about him to law enforcement authorities. (paras. 
    71-72).

[27]

At paras. 73 and 74 of his reasons, the trial judge made the following 
    findings directly implicating H.M. in B.s contempts of court orders:

I find the mother committed flagrant and repeated contempts 
    of this court by disregarding court orders of which she was aware, as she 
    admitted.  These contempts of the courts process cannot be condoned or excused.

I find [H.M.] aided and abetted the mother in her contempt 
    of court orders.  I have heard sufficient evidence to permit me to compel 
    [H.M.] to appear before the court to stand trial herself for contempt of court.
I refrain from doing so only because of the risk such a trial may serve to 
    enflame antipathy between the parties and divert their attention from the 
    urgent need to co-operate to ensure the best interest of [the daughter] is 
    met.  [The daughter] needs support from both her parents and her grandparents, 
    all the more so since the tragic death of her brother....  She does not need 
    further strife among them which can only be detrimental to her best interest.

However,
I put [H.M.] on notice that if it comes to 
    the courts attention that she has in future done or failed to do anything 
    which further encourages or assists the mother to disobey the letter and spirit 
    of orders of this court, [H.M.] will be compelled to appear before the court 
    to show cause why she should not be found in contempt for aiding and abetting 
    non-compliance with court orders in the past and for any contempt subsequent 
    to this judgment.

[Emphasis added.]

[28]

Unfortunately, the trial judges stated intention of avoiding further 
    strife between the parties by not initiating contempt proceedings against 
    H.M., proved fruitless.  Rather than contempt proceedings,
per se
, 
    J.A.S. relied on the trial judges findings in his reasons for judgment as 
    the foundation for an application to add H.M. as a party to the action and 
    to claim special costs against her, B. and Mr. Bjurman.

(b)
The First 
    Decision on Costs

[29]

In his reasons for judgment dated October 26, 2005, the trial judge 
    ordered special costs of the trial against H.M. to be paid jointly and severally 
    with B.   He dismissed the application for special costs against Mr. Bjurman.

[30]

Early in his reasons, the trial judge noted that he had awarded special 
    costs against B. because of her reprehensible conduct of the litigation, 
    including perjury she admitted at trial and blatant contempt of numerous orders 
    of this court.  He observed that H.M. and Mr. Bjurman had not been parties 
    to the action or participants in the trial.  He noted their submission that 
    he should disregard his earlier adverse findings regarding their conduct, 
    particularly in light of B.s admitted perjury and general lack of credibility.

[31]

The trial judge then referred to the materials he considered on the 
    application, including a 57 page affidavit with 140 exhibits sworn by Mr. 
    Bjurman detailing his conduct of the case and attaching much of his correspondence 
    with B. and H.M.; a written submission on behalf of Mr. Bjurman; an affidavit 
    from former counsel for J.A.S.; a 62 page argument and 11 page reply filed 
    on behalf of J.A.S.; a 16 page affidavit sworn by H.M. and a 67 page written 
    submission on her behalf adopting, in part, the submission of Mr. Bjurman. 
    The trial judge stated that he had thoroughly reviewed this material, together 
    with all of the relevant court record, and that it provided a comprehensive 
    picture of how the mothers side of this litigation was conducted during the 
    period of Mr. Bjurmans retainer.

[32]

The trial judge then dealt in detail with the claim for special costs 
    against Mr. Bjurman.  After so doing, he concluded that the adverse inference 
    he had initially drawn that Mr. Bjurman participated in B.s contemptuous 
    behaviour was incorrect in light of what is disclosed by his file.  He also 
    concluded that B.s testimony at trial to the effect that Mr. Bjurman and 
    H.M. had handled everything was incorrect, and that B. was much more involved 
    in the conduct of her file than she had admitted.  In the result, he concluded 
    that Mr. Bjurman had not acted reprehensibly, negligently or in bad faith.

[33]

The trial judge then went on to deal at length with the claim for special 
    costs against H.M.  He observed that, unlike B., H.M. had never recanted her 
    stated belief that J.A.S. was a paedophile and a dangerous person.  He inferred 
    from this that H.M. was the more intransigent of the two in denying J.A.S. 
    access, and that she exerted considerable influence over B.s choices because 
    she was financing the litigation (and B.s exodus to Hawaii).  In that regard, 
    the trial judge stated (at para. 73):

[H.M.]s involvement in these proceedings went far beyond 
    merely paying the mothers legal and other bills and acting as an agent or 
    conduit for instructions between the mother and Mr. Bjurman.  As noted in 
    2002 BCSC 440, [H.M.] and the mother acted in concert to deny the father court 
    ordered access.  [H.M.] aided and encouraged the mother in her contempt of 
    court orders.

[34]

The trial judge rejected H.M.s evidence that she was not motivated 
    by hatred for J.A.S. and found that the tone of her communications with Mr. 
    Bjurman completely belied this assertion.  The trial judge also rejected H.M.s 
    evidence that she was simply misdirected in sending J.A.S.s medical records 
    together with offensive comments about him to members of his family.  He found 
    that she sent this material contrary to Mr. Bjurmans advice and confirmed 
    that these letters were reckless, scurrilous, written to denigrate the father 
    and that they corroborated the mothers testimony that she and H.M. hated 
    his guts.

[35]

The trial judge accepted that, contrary to his earlier finding, H.M. 
    did not personally alert United States border officials to J.A.S.s  planned 
    trip to exercise access in Hawaii which resulted in him being detained and 
    questioned by the police.  However, he noted that H.M. had told a friend and 
    business associate who was a member of the Honolulu police of her concern 
    that J.A.S. was a paedophile and a dangerous person and said that it was 
    disingenuous for her to imply by swearing her affidavit that she had nothing 
    to do with the father being stopped at the airport and interviewed by the 
    police .

[36]

The principal conclusions of the trial judge underlying his order for 
    special costs against H.M. are found at paragraphs 90-92 of his reasons:

At paragraphs 70-74 of 2004 BCSC 440 I found that [H.M.] 
    was motivated by her hatred of the father to aid and abet the mother in flagrant 
    and repeated contempts of orders of this court and was susceptible to being 
    found in contempt herself.

The evidence on this application reinforces that finding.

I find [H.M.]s actions in respect of this litigation reprehensible.  They 
    warrant an award of special costs against her.  She will be jointly and severally 
    liable with the mother for the fathers costs throughout.

(c)
The Process 
    Leading to the First Order on Costs

[37]

Earlier in these reasons, I described the extensive background giving 
    rise to the costs orders under appeal.  I will focus here on the proceedings 
    commencing with the order of March 26, 2003 adding H.M. as a party to the 
    proceedings to enable J.A.S. to claim special costs against her.  This was 
    followed by the order of September 9, 2003 requiring former counsel for B. 
    to produce all communications they had received from H.M. in relation to the 
    action.  In making that order, the trial judge stated (at para. 19):

I am satisfied that in order to determine what role [H.M.] 
    played in this litigation, to properly adjudicate the claim for costs against 
    her, the order for disclosure of communications between [H.M.] and previous 
    counsel for the mother should be made in the terms set out in the Notice of 
    Motion.

[38]

At that time, the trial judge made a point of stating (at para. 29) 
    that he had formed no opinion as to H.M.s prospects in resisting the application 
    for special costs against her.

[39]

At the September 2003 hearing, the question of the appropriate process 
    to follow with respect to the issue of costs was canvassed at length between 
    the trial judge and counsel.  Issues were raised with respect to what evidence 
    would be called, the possibility of cross-examination (of B., in particular), 
    the fact that there were no pleadings
per se
, and the possibility 
    of treating the trial judges earlier findings with respect to H.M.s conduct 
    as being of a provisional nature by analogy with provisional orders in maintenance 
    enforcement proceedings.  The trial judge expressed concern that the costs 
    proceedings not mushroom into a full-blown trial with attendant costs and 
    delay.

[40]

The next relevant development was the order of March 29, 2004 providing 
    that solicitor-client privilege was waived to the extent necessary to permit 
    Mr. Bjurman to discuss the file with his lawyer with respect to the application 
    for special costs against him.  At that time, there were further discussions 
    regarding process.  In order to ensure that H.M. (and Mr. Bjurman) were fully 
    apprised of the case they had to meet, the trial judge ordered J.A.S. to file 
    written submissions which would set forth the details of his claim.  Once 
    H.M. (and Mr. Bjurman) had the opportunity to review J.A.S.s argument, the 
    trial judge made it clear that it was open to them to seek to cross-examine 
    B. or to lead
viva voce
or other evidence in reply.  The trial judge 
    also indicated that he was available to provide further directions for the 
    conduct of the hearing on costs, as required.

[41]

Mr. Bjurman then applied for an order for waiver of solicitor-client 
    privilege to the extent necessary to permit him to file an affidavit in defence 
    of the application for special costs against him.  He also sought an order 
    that B. be produced for cross-examination.  In reasons for judgment pronounced 
    July 9, 2004, the trial judge ordered that solicitor-client privilege over 
    the entire file be waived and he adjourned the application for cross-examination 
    of B., pending the filing of Mr. Bjurmans affidavit.

[42]

No further application was brought by any of the parties for cross-examination 
    of B. (or any other witness at trial); nor did H.M. raise further issues concerning 
    process.

(d)
Submissions of Counsel

[43]

Counsel for H.M. submits that the trial judge erred in adopting a summary 
    procedure to deal with the issue of special costs in circumstances where H.M. 
    was not a party at trial and, therefore, did not enjoy the advantages of pleadings 
    and full cross-examination of witnesses. He submits that H.M. was also at 
    a disadvantage because the trial judge had already adversely commented on 
    her conduct in his initial reasons for judgment.  Finally, he emphasizes what 
    he refers to as the unfairness arising from the disclosure of B.s file flowing 
    from the waiver order of July 9, 2004.

[44]

In reply, counsel for J.A.S. submits that H.M. was never in any doubt 
    as to the case she had to meet with respect to the issue of special costs.  
    This was provided both in the trial judges comments regarding her conduct 
    in his decision at trial and in J.A.S.s submissions.  Counsel submits it 
    is apparent that the trial judge did not regard the adverse findings in his 
    trial judgment as being immutable, as evidenced by the statement in his September 
    2003 reasons that he had not formed an opinion as to H.M.s liability for 
    special costs, and by the fact that he reversed his original view that Mr. 
    Bjurman was complicit in B.s contemptuous conduct.

[45]

Counsel for J.A.S. also notes that H.M. made no request for discovery, 
    or for cross-examination of any of the witnesses from the trial.  Finally, 
    with respect to H.M.s claim that she was prejudiced by the order of July 
    9, 2004 waiving privilege over B.s file, counsel observes that H.M. was prepared 
    at that time to consent to an order whereby B. would waive privilege over 
    the vast majority of the file such that it is now disingenuous of H.M. to 
    say that she was highly prejudiced by the order that was made.  (In any event, 
    I have determined that H.M. has no standing to challenge that order.)

(e)
Analysis and 
    Conclusion on Process

[46]

It is not disputed that it is open to the court to make findings of 
    costs against individuals who were not parties to the litigation by utilizing 
    a summary process, although such orders are relatively rare.  For example, 
    in
Young v. Young
, [1993] 4 S.C.R. 3, varying (1990), 75 D.L.R. 
    (4
th
) 46 (B.C.C.A.), revg (1989), 24 R.F.L. (3d) 193 (B.C.S.C.), 
    which involved contested custody proceedings, the trial judge made an order 
    for special costs against the husband, the husbands lawyer, and the Watch 
    Tower Bible and Tract Society (the Society), which had financially supported 
    the husband in his pursuit of custody.  While the order against the lawyer 
    and the Society were set aside by this Court on appeal, it was not suggested 
    that the trial court had no power to make such an order or that the process 
    followed in making the order on a summary basis was flawed. Rather, this Court 
    found that the order was not justified in the circumstances.  In relation 
    to the lawyer, this Court noted that there was no finding that the lawyer 
    was a party to the husbands attempt to mislead the court, or that he was 
    otherwise a party to any contempt of the court.  With respect to the Society, 
    the Court found that there was no evidence that the husband would not have 
    pursued his rights in relation to custody and access but for the financial 
    contributions from the Society, or that there was any basis for finding that 
    the tort of maintenance had been established.  A subsequent appeal to the 
    Supreme Court of Canada, including an appeal with respect to costs, was dismissed.

[47]

In this case, costs were not awarded on the basis of the tort of maintenance.  
    Rather, costs were awarded on the basis that H.M. was a party to B.s contemptuous 
    behaviour and that she had engaged in other reprehensible behaviour.

[48]

In making this order, the trial judge made every effort to ensure that 
    the process he followed was fair to all parties.  He invited counsel to make 
    submissions with respect to process, he took account of their stated concerns, 
    and he fashioned a process which would enable H.M. to know the case she had 
    to meet, and to make full answer to it.  I am unable to find that he restricted 
    H.M. in pursuing any and all avenues to defend the application.

[49]

Although there were no pleadings with respect to the issue of costs, 
    H.M. was placed on notice as of October 7, 2002, when J.A.S. applied to add 
    her as a party, that J.A.S. was seeking special costs against her.  In my 
    view, it is inconceivable given the nature of the proceedings to that date 
    that H.M. would have been in any doubt as to the nature of the case against 
    her on special costs.  In his reasons of March 25, 2002, the trial judge set 
    forth his findings arising from the evidence which supported the conclusion 
    that H.M. was a party to the contempts of court by B.  There is no suggestion 
    that it was not open to the trial judge to make those findings based on the 
    evidence he had heard (including evidence from H.M.).  Nor did counsel for 
    H.M. suggest that the trial judge should have recused himself from ruling 
    on the application for special costs.

[50]

The trial judge held several conferences with counsel with respect 
    to the issue of costs to ensure that Mr. Bjurman and H.M. were given the opportunity 
    to challenge the initial findings he had made in his reasons for judgment 
    associating them with B.s misconduct.  Counsel for J.A.S. provided the entire 
    transcript of B.s evidence to the parties to permit them to review it with 
    a view to conducting a cross-examination of her if they so desired.  H.M. 
    did not apply to cross-examine B., J.A.S. or any other witness.  This is significant 
    because B. had asserted that H.M. was a driving force behind the litigation 
    and her evidence indicated that H.M. fully participated in her ongoing efforts 
    to deny J.A.S. access.  Had H.M. wished to challenge her evidence in that 
    regard, it was open to her to do so.

[51]

The process followed required counsel for J.A.S. to file his submissions 
    first to ensure that H.M. was fully aware of the case against her before being 
    called upon to respond.  She was given the opportunity to file any affidavit 
    or other material which she considered relevant to the issue of costs and 
    to make full submissions.

[52]

It is also important to note that H.M. had filed affidavits at various 
    times throughout the proceedings, and that the 80 page missive she had sent 
    the trial judge after the trial adjourned was before him on the issue of costs.  
    Her voice did not go unheard.  Her real problem is that the trial judge found 
    that her evidence was either lacking in credibility, or, where credible, it 
    confirmed that she had acted reprehensibly.

[53]

Counsel for H.M. was unable to provide any authority for the proposition 
    that, where costs are sought against a person who was not a party to the proceeding, 
    that person is entitled to the full panoply of procedures available to a person 
    who was a party from the outset.  In
Young
, this Court observed 
    that the procedure to be followed when costs are sought against a third party 
    lawyer is a summary procedure.  Counsel for H.M. conceded in written submissions 
    that a summary procedure will suffice in most cases involving applications 
    for costs.  He simply says that it was not sufficient in this case.

[54]

Here, H.M. can point to no procedure or right which she requested and 
    was denied in relation to the claim for special costs against her.  At best, 
    she says that the process was unfair from the outset because the trial judge 
    had already made up his mind that she had acted reprehensibly.  I do not accept 
    that proposition.  As earlier stated (at para. 38,
supra
), in making 
    his waiver order of September 9, 2003, the trial judge expressly stated that 
    he had formed no opinion with respect to H.M.s prospects of success in resisting 
    the application for special costs against her.  It cannot be said that he 
    approached the issue of costs with a closed mind as evidenced by the fact 
    that he changed his opinion concerning Mr. Bjurmans complicity in B.s conduct.  
    It was open to H.M. to adduce further evidence, to request cross-examination 
    and to put forward any submissions which she regarded as necessary to enable 
    her to defend against the claim.  Having failed to avail herself of many of 
    the rights which were afforded her, H.M. cannot now legitimately complain 
    that she was deprived of a fair process or a fair hearing.

[55]

Apart from the claim of lack of fair process, H.M. does not suggest 
    that the finding of special costs against her cannot be supported on the evidence.  
    In my view, a fair reading of the evidence could not lead to any other result.

(f)
Costs of the 
    Special Costs Hearing and Further Assessments

[56]

The final issue on this appeal is whether the trial judge erred in 
    his order of February 8, 2006 by awarding J.A.S. special costs of the special 
    costs application and of any subsequent proceedings to assess costs.  In that 
    regard, the trial judge referred to various authorities, including
Szpradowski 
    (Guardian ad litem) v. Szpradowski Estate
(1992), 48 E.T.R. 122 (B.C.S.C.), 
    and this Courts decision in
Sarkodee-Adoo v. Sarkodee-Adoo
, 
    2004 BCCA 105, 2 R.F.L. (6
th
) 221
.
He noted that those 
    decisions appeared to support the proposition that where an award of special 
    costs includes the whole of the proceedings, costs of the assessment of special 
    costs are to be special costs.   He referred to the argument of counsel for 
    H.M. that there was a danger in making an order for special costs of proceedings 
    which had not yet occurred, since parties facing such costs would have nothing 
    to lose by continuing to act in a reprehensible manner, having been ordered 
    to pay special costs in any event.

[57]

The trial judge responded to this argument at paras. 61-63 of his reasons 
    for judgment as follows:

As regards the possibility that an award of special costs 
    throughout might encourage parties ordered to pay special costs to persist 
    in reprehensible conduct during post-trial applications and proceedings such 
    as assessments of costs, there is nothing to suggest that has occurred in 
    the several cases cited where special costs of assessments have been found 
    to follow from awards of special costs throughout.

In this case, I have no hesitation in finding that [H.M.]s 
    defence of the application for special costs against her was not exemplary 
    but was reprehensible, just as her involvement in these proceedings throughout 
    had been.  Her conduct was egregious as illustrated, for example, at paragraphs 
    84 to 89 of 2005 BCSC 1508 which describe how she swore an affidavit attempting 
    to mislead the court.

The duration and complexity of the plaintiffs special 
    costs application were both needlessly exacerbated by [H.M.]s refusal to 
    acknowledge her attitude, motivation and role in consistently frustrating 
    court ordered access by the plaintiff to his children, even after these were 
    abundantly demonstrated by the contents of Mr. Bjurmans file and his affidavit.

[58]

In my view, if there was ever a factual matrix calling for special 
    costs, including special costs of the special costs proceedings, this is it.  
    The trial judge found that H.M. acted reprehensibly throughout the proceedings, 
    and that she continued to attempt to mislead the court, and to underplay the 
    extent of her involvement in blocking J.A.S.s right to access, during the 
    special costs proceedings.  The effect of her misconduct will undoubtedly 
    be to increase the length and complexity of any assessment of costs which 
    may ensue.  It follows that there is no basis for interfering with the trial 
    judges order of February 8, 2006.

RESULT

[59]

I would dismiss the appeal.


The Honourable
Madam 
    Justice Prowse

I Agree:

The Honourable Mr. Justice Smith

I Agree:

The Honourable
Mr. Justice Chiasson

CORRECTION
 25 January 2008

The Appellant and Respondents names have been changed 
    to initials.


