Trevor Todd and Jackson Todd have over 60 years experience in handling estate disputes including special costs where warranted.

 

Special costs are awarded by the court as a form of punitive costs where a party ahs been found to have acted with reprehensible conduct that deserves rebuke.

Parker Cove Properties Limited Partnership v. Gerow, 2024 BCCA 316, the BC  Court of Appeal stated:

The test for granting special costs is set out in Smithies Holdings v RCV Holdings Ltd 2017 BCCA 177at paras. 56–57:

…

[57]      The leading authority on special costs is this Court’s decision in Garcia v. Crestbrook Forest Industries Ltd. (1994), 9 B.C.L.R. (3d) 242 (C.A.). There the Court, set out that the threshold for special cost awards is “reprehensible conduct”. He noted the continuum of circumstances in which special costs could be awarded, ranging from “milder forms of misconduct deserving of reproof or rebuke” to “scandalous or outrageous conduct”:

Having regard to the terminology adopted  in Young v. Young, [[1993] 4 S.C.R. 3], to the terminology adopted  in Fullerton v. Matsqui [(District)(1992), 74 B.C.L.R. (2d) 311 (C.A.)],  and to the application of the standard of “reprehensible conduct”  in Leung v. Leung [(1993), 77 B.C.L.R. (2d) 314 (S.C.)] in awarding special costs in circumstances where he had explicitly found that the conduct in question was neither scandalous nor outrageous, but could only be categorized as one of the “milder forms of misconduct” which could simply be said to be “deserving of reproof or rebuke”, it is my opinion that the single standard for the awarding of special costs is that the conduct in question properly be categorized as “reprehensible”.

In Leung v. Leung, the word reprehensible is a word of wide meaning. It encompasses scandalous or outrageous conduct but it also encompasses milder forms of misconduct deserving of reproof or rebuke. Accordingly, the standard represented by the word reprehensible, taken in that sense, must represent a general and all encompassing expression of the applicable standard for the award of special costs.

As may be seen, the focus is upon whether the conduct in question may “be categorized as ‘reprehensible’”.

Hu v. Dickson, 2015 BCSC 218,  provided a useful review regarding the characterization of reprehensible conduct:

Special costs are awarded where a party’s litigation conduct can be characterized as “reprehensible”. In this context the word reprehensible encompasses both scandalous and outrageous conduct and also milder forms of misconduct deserving of reproof or rebuke: Garcia, para. 17. This does not mean that all forms of misconduct justify a special costs order – rather, the misconduct must be such as to be deserving of reproof or rebuke: Westsea Construction Ltd. v. 0759553 B.C. Ltd., 2013 BCSC 1352 at paras. 32 and 73.

The purpose for this high level of costs is punitive and intended to express the court’s disapproval of the party’s conduct. It is not necessary that all aspects of a party’s conduct in the litigation be reprehensible in order to make an award of special costs that applies to the entire action: Bradshaw v. Stenner, 2012 BCSC 237 at para. 9, leave to appeal ref’d 2012 BCCA 481. However, pursuant to Rule 16‑1(14) of the Supreme Court Family Rules, the court has the discretion to award costs that relate to only certain aspects of a proceeding and may do so where it would be disproportionate to award special costs of the entire proceeding: Gichuru v. Smith, 2014 BCCA 414], para. 91.

The court must exercise restraint in awarding special costs and as such the party seeking special costs must demonstrate exceptional circumstances to justify a special costs order: Westsea, para. 73.

In Kim v. Hong, 2013 BCSC 2248, Justice Griffin quoted extensively from the judgment  in Schwabe v. Dr. Lisinski, 2005 BCSC 1284, where he summarized a number of cases in an effort to discern the kinds of conduct that had been characterized as reprehensible and thus warranting an award of special costs. Justice Griffin also categorized the conduct that had been found to justify an award of special costs in a number of family cases.

From her reasons, it is apparent that the kinds of conduct that warrant an award of special costs include the following:

• acting with an improper motive, such as to intimidate, exhaust or financially drain the other party in the hopes that they will give up or soften their position in the litigation;
• dissipating and/or not disclosing assets;
• abusing the court’s process by, among other things, failing to disclose documents, delaying in disclosing documents, failing to respond to reasonable requests, causing unnecessary interlocutory applications, and breaching the Rules of Court in a manner that prejudices the other party;
• misleading the court, through outright fabrications or through evasive and/or equivocal responses; and
• disobeying a court order.