Costs in trust litigation

Sun Indalex Finance, LLC v. United Steelworkers, 2013 SCC 6 is a complex and lengthy decision dealing with pensions.  In the course of the decision the Court considered an award of costs from a trust – comments which may have relevance broadly to estates and other similar circumstances:

 

 

[250]                      The decision whether to award costs from the pension fund remains a discretionary matter.  In Nolan, Rothstein J. surveyed the various factors that courts have taken into account when deciding whether to award a litigant its costs out of a pension trust. The first broad inquiry considered in Nolan was into whether the litigation concerned the due administration of the trust. In connection with this inquiry, courts have considered the following factors: (1) whether the litigation was primarily about the construction of the plan documents; (2) whether it clarified a problematic area of the law; (3) whether it was the only means of clarifying the parties’ rights; (4) whether the claim alleged maladministration; and (5) whether the litigation had no effect on other beneficiaries of the trust fund: Nolan, at para. 126.

 

[251]                           The second broad inquiry discussed in Nolan was whether the litigation was ultimately adversarial: para. 127. The following factors have been considered: (1) whether the litigation included allegations by an unsuccessful party of a breach of fiduciary duty; (2) whether the litigation only benefited a class of members and would impose costs on other members if successful; and (3) whether the litigation had any merit.