Tag: special costs

ICBC Hit With Special Costs Award For “Reprehensible” Lawsuit Tactics

Written by ERIK MAGRAKEN on April 15, 2021. Posted in BC Supreme Court Costs Cases.

Reasons for judgement were published this week by the BC Supreme Court, Vancouver Registry, finding ICBC is liable to pay special costs for ‘reprehensible’ conduct in litigation.

In the recent case (Zhang v. 328633 BC Ltd) the Plaintiff was injured while riding as a passenger in a bus. A truck driver made an unsafe lane change in front of the bus. This caused the bus driver to brake forcefully throwing the plaintiff from her seat leading to multiple injuries. The truck driver did not remain at the scene of the incident and was unknown. The Plaintiff sued both the bus driver and ICBC as a statutory defendant in place of the unidentified truck driver, a legal remedy available under s. 24 of the Insurance (Vehicle) Act. ICBC had video evidence from the bus as to what actually occurred but failed to produce this for years. They also denied that a s. 24 claim existed until deep into the trial.

The bus driver was not paying adequate attention at the time and the court found both the bus driver and truck driver shared liability.

As a result of ICBC’s late production of crucial evidence and unreasonable denial as to the merits of the s. 24 claim the presiding judge found ICBC should pay special costs. In reaching this conclusion Mr. Justice Branch provided the following reasons:

BC Court of Appeal Upholds Special Costs Award Against Disability Insurer Despite No Litigation Misconduct

Written by ERIK MAGRAKEN on September 23, 2019. Posted in Uncategorized.

Reasons for judgment were published today by the BC Court of Appeal finding that trial judges do have authority to award special costs against litigants even in circumstances where no litigation misconduct occurred.

In today’s case (Tanious v. The Empire Life Insurance Company) the Plaintiff was insured with the Defendant. She became disabled and sought long term disability benefits but the Defendant ‘rejected her claim’. The Plaintiff successfully sued and was awarded damages along with an order of special costs.

The Defendant appealed arguing the judge was wrong in awarding special costs absent litigation misconduct. The BC Court of Appeal disagreed and found that in “exceptional cases” such awards could be justified. In upholding the award the court provided the following reasons:

BC Court of Appeal Discusses When Special Costs Against Lawyers Personally Should be Ordered

Written by admin on September 19, 2018. Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 14, Uncategorized.

In exceptional circumstances lawyers can be ordered to be personally on the hook for costs when litigation goes awry. Today the BC Court of Appeal discussed when such orders are warranted and when they are not.
In today’s case (Nuttall v. Krekovich) the Plaintiff was seriously injured in a hit and run accident. A lawsuit was started suing ICBC as a nominal defendant pursuant to s. 24 of the Insurance (Vehicle) Act. As the litigation progressed the Plaintiff’s lawyer came to believe that the Defendant may have been the driver and brought an application to add him to the lawsuit. Shortly after obtaining this order the lawyer realized he was mistaken and discontinued the lawsuit against the Defendant.
The Defendant sought costs against the lawyer personally and the Chambers judge made such an order finding the lawyers actions were “indefensible and an abuse of process meriting sanction in the form of an order of special costs payable by him personally”.
The lawyer successfully appealed the order with the BC Court of Appeal noting the chambers judge made several errors in ordering special costs against the lawyer. In discussing the scope of special costs being ordered against a lawyer personally BC’s highest court provided the following reasons:

[25] It is my view that the chambers judge made several errors that warrant intervention by this Court.

[26] First, special costs have a punitive or deterrent element and are only appropriate where the conduct in issue is deserving of punishment or rebuke. This well-known principle stems from numerous cases, most recently enunciated in J.P. v. British Columbia (Children and Family Development), 2018 BCCA 325 at para. 28. The chambers judge erred in principle by failing to consider the cautious approach to an award of special costs against a lawyer personally, as well as the kind of reprehensible conduct that would justify such an award, mandated by the Supreme Court of Canada in Young v. Young, [1993] 4 S.C.R. 3 and more recently in Quebec (Director of Criminal and Penal Prosecutions) v. Jodoin, 2017 SCC 26.

[27] In Young the court directed judges to be “extremely cautious” in awarding costs personally against lawyers given their duties to guard confidentiality of instructions and to bring forward with courage even unpopular causes:

… A lawyer should not be placed in a situation where his or her fear of an adverse order of costs may conflict with these fundamental duties or his or her calling.

[28] In Jodoin, the court confirmed that the threshold for exercising the power to award costs against lawyers is high, such that there must be a finding of reprehensible conduct by the lawyer. Reprehensible conduct “represents a marked and unacceptable departure from the standard of reasonable conduct expected of a player in the judicial system” (at para. 27). Mr. Justice Gascon, for the majority, described the kind of conduct that would justify such an order at para. 29:

[29] In my opinion, therefore, an award of costs against a lawyer personally can be justified only on an exceptional basis where the lawyer’s acts have seriously undermined the authority of the courts or seriously interfered with the administration of justice. This high threshold is met where a court has before it an unfounded, frivolous, dilatory or vexatious proceeding that denotes a serious abuse of the judicial system by the lawyer, or dishonest or malicious misconduct on his or her part, that is deliberate…

[29] Consistent with these decisions, this Court has long held that such orders should be made only in “very special circumstances”, and not on the basis of mistake, error in judgment or even negligence: see Hannigan v. Ikon Office Solutions Inc. (1998), 61 B.C.L.R. (3d) 270 (C.A.); Pierce v. Baynham, 2015 BCCA 188 at para. 41.

[30] Second, the chambers judge erred in concluding that Mr. Krekovic’s failure to disclose the entire circumstances of his investigation was in itself sufficient to justify an order for special costs. A special costs order is not justified only because counsel fails to disclose evidence that ultimately proves to be material or incorrect: see Pierce at para. 43. The chambers judge made no finding of dishonesty, accepting that Mr. Krekovic’s motivation to bring the application was “in pursuance of his duty to his client”. Given that, his failure to disclose more about his investigation does not constitute reprehensible conduct sufficient to justify an award of special costs. This is particularly so in the context of the evidence in the application that Mr. Krekovic clearly informed the court that his own investigation had not yielded any reliable information and he was relying only on information provided to him from another lawyer, the basis for which had not been disclosed.

[31] Moreover, I cannot agree that disclosure of further information would necessarily have yielded a different outcome in the application. The chambers judge placed considerable importance on “the discrepancy between the date of birth that he had given for the Mr. Dhillon identified by Mr. Folick, and the date of birth of the Mr. Dhillon whom his investigation had previously identified as a potential defendant”. In fact, there was no discrepancy in the most recent date of birth provided by the investigator, Mr. Loncaric, and the date of birth later provided by Mr. Folick. The only discrepancy was with the earlier information Mr. Loncaric had given, which had not been confirmed. Had the application judge been informed of these or other details – such as the inconclusive information pointing to another Mr. Dhillon – the order may have nonetheless been granted. It is also important, in my view, that Mr. Dhillon did not attend himself to oppose the application. Instead, the application was opposed only by ICBC, who put the issue of the sufficiency of the information squarely before the court.

[32] Additionally, Mr. Krekovic’s conduct after the order was granted demonstrates an effort to be prudent. He did not enter the order or serve the amended notice of civil claim without making further inquiries of Mr. Folick’s office about the reliability of the information, and as soon as he learned that the information was in fact incorrect, he advised Mr. Dhillon’s’ counsel that the action would be discontinued against him.

[33] In my opinion, Mr. Krekovic’s conduct was far from being characterized as reprehensible.

[34] Finally, the chambers judge referred to Rule 14-1(33) as allowing for an order for special costs. Rule 14-1(33) gives the court discretion to make various orders if it considers that a party’s lawyer “has caused costs to be incurred without reasonable cause, or has caused costs to be wasted through delay, neglect or some other fault”. One of those orders is that the lawyer “be personally liable for all or part of any costs that his or her client has been ordered to pay to another party”.

[35] This rule, which does not distinguish between party and party costs and special costs, has expanded the scope of conduct which might support a costs order against a lawyer. As explained in Nazmdeh v. Spraggs, 2010 BCCA 131, there is no requirement for “serious misconduct” to justify an order that a lawyer pay party and party costs, but it is still necessary to find reprehensible conduct on the part of the lawyer to justify an order for special costs. Moreover, the lower standard mandated by Rule 14-1(33) must also be exercised with restraint, as the Court reasoned at paras. 103‒104:

[103] The power to make an order for costs against a lawyer personally is discretionary. As the plain meaning of the Rule and the case law indicate, the power can be exercised on the judge’s own volition, at the instigation of the client, or at the instigation of the opposing party. However, while the discretion is broad, it is, as it has always been, a power to be exercised with restraint. All cases are consistent in holding that the power, whatever its source, is to be used sparingly and only in rare or exceptional cases.

[104] The restraint required in the exercise of the court’s discretion is not to be confused with the standard of conduct which may support its use. Care and restraint are called for because whether the unsuccessful party or his lawyer caused the costs to be wasted may not always be clear, and lawyer and client privilege is always deserving of a high degree of protection.

[36] In conclusion, it is my view that Mr. Krekovic’s conduct in making the application to add Mr. Dhillon as a defendant did not approach the kind of reprehensible conduct required to justify an order for special costs against him as counsel.

[37] I would allow the appeal and set aside the order of the chambers judge that Mr. Krekovic personally pay the special costs of Mr. Dhillon. I would also award costs to the appellant of this appeal and for the application for special costs in the court below.

ICBC's Inconsistent Pleadings Following a Collision "Reprehensible"

Written by admin on July 26, 2017. Posted in BC Supreme Court Costs Cases.

Reasons for judgement were published this week by the BC Supreme Court, Vernon Registry, finding that ICBC taking inconsistent positions in lawsuits for fault after a collision is ‘reprehensible’ and awarded special costs as a deterrent.
In the recent case (Glover v. Leakey) the Defendant was involved in a crash and injured two passengers. One sued and fault was admitted and ultimately settlement reached. The second sued but fault was denied. In the midst of a jury trial the Plaintiff discovered the inconsistent pleadings and asked for a finding of liability.
Due to a misunderstanding the matter proceeded to verdict and the jury found the Defendant was not negligent. Before the order was entered the Court considered the matter and found that the liability denial was an abuse of process, stripped the defence and granted liability in favour of the plaintiff.
This week the Court went further and ordered special costs. In findings this appropriate Madam Justice Gropper provided the following reasons:

[42] I found that the inconsistent pleading by the defendant was an abuse of process because the principles such as judicial economy, consistency, finality and the integrity of the administration of justice were violated. The court cannot condone such conduct.

[43] Abuse of process can be a basis for special costs. I find that in this case, the conduct of the defendant is of the type from which the court wants to disassociate itself, referring to Fullerton.

[44] The defendant’s arguments about the merits of its position on the application and that special costs should only be for the application only, in my view, address the circumstances too narrowly. The plaintiff only discovered the inconsistent pleadings days as the jury trial was about to proceed; it was scheduled for 12 days; the jury panel had been summonsed; witnesses were on their way to or in Vernon to give evidence; expert witnesses were also arranged to be examined by video or in person; and the defendant’s counsel had threatened to apply for a mistrial if the inconsistent pleadings were raised before the trial judge or the jury. The application was made while the jury trial was underway.

[45] The repercussions of the abuse of process were wide spread and of significant expense to the plaintiff, who had marshalled all of her evidence. The defendant’s narrow approach fails to recognize that his conduct was not confined to the hearing of the application only; it went well beyond that.

[46] Referring to the principles distilled in Westsea, I am satisfied that in awarding special costs in these unique circumstances meets the test of restraint but addresses the full impact of the defendant’s conduct; there are exceptional circumstances that justify such an order; the inconsistent positions on liability as between this action and the Yeomans’ action is reprehensible in and of itself, and amounts to an abuse of process; and the award of special costs in this action cannot be characterized as a “bonus” or further compensation for the plaintiff’s success on the application.

[47] The plaintiff is entitled to special costs arising from my finding that the conduct of the defendant was an abuse of process, including the costs of preparation and attendance at trial, as well as special cost of this application. The assessment of special costs is postponed until the defendant has exhausted all avenues of appeal.

Uninsured, Self Represented Litigant Learns that Perjury is a Poor Idea

Written by admin on March 21, 2017. Posted in BC Supreme Court Costs Cases, Uncategorized.

From the vault of how not to represent yourself in court, reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, admonishing a self represented litigant for providing the Court with perjured evidence.
In today’s case (Dizon v. Losier) the Defendant rear-ended a vehicle driven by the Plaintiff. The Defendant was uninsured at the time and represented himself in court. As part of his defense strategy he called a witness who said he witnessed the collision and the Plaintiff stopped for no reason. On cross examination it became clear that this witness did not see the collision and colluded to provide this friendly evidence for the Defendant. The Court went on to find the Defendant largely at fault for the crash, ordering payment of almost $40,000 in damages, costs, and one day of ‘specical costs’ for the perjured evidence. In admonishing this evidence Madam Justice Russell provided the following comments:

[43] Mr. Losier called a witness who provided completely concocted evidence about seeing the plaintiff’s car stop for no reason just before the accident. This witness, Mr. Dale Carmount, was asked by this Court if he had known the defendant before the accident. This was done in order to test whether there had been any complicity with respect to this convenient account of events. Mr. Carmount denied having met the plaintiff before the accident. Instead, he said he had responded to a notice posted by Mr. Losier asking for witnesses to the accident.

[44] In cross-examination, plaintiff’s counsel referred to a Facebook page that Mr. Carmount denied existed, but which was clearly that of Mr. Carmount, and then asked him about family relationships. Mr. Carmount then revealed that, through family in Ontario, Mr. Carmount and Mr. Losier were acquainted before the accident.

[45] In light of this evidence, I find that the two of them developed a statement for Mr. Carmount to sign that was completely untrue. Mr. Carmount had not witnessed the accident occurring as he had stated under oath.

[46] That this evidence amounted to perjury, for which both participants could have been prosecuted, was not lost on Mr. Losier. He tendered an apology to the Court.

[47] This turn of events significantly undermined the reliability of the defendant’s evidence.

…

[84] … the plaintiff will be awarded one day of special costs for the unnecessary delay in this matter for the consideration of the perjured evidence from the defendant.

…

ICBC's "Casual Disregard" of Court Order Results in Steep Costs Punishment

Written by admin on August 9, 2016. Posted in Uncategorized.

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, hitting ICBC with a steep costs award for the “casual disregard” of a Court disclosure order.
In today’s case (Norris v. Burgess) the Plaintiff was injured in a 2010 collision and sued for damages. Prior to trial ICBC offered to settle the claim for $678,500. The Plaintiff rejected this offer and proceeded to trial where a jury awarded $462,374. After statutory Part 7 deductions the amount was reduced by $70,196.
Normally where a Plaintiff is awarded less than a defence formal settlement offer they are stripped of some of their costs and sometimes ordered to pay some of the Defendant’s costs. ICBC sought such a result but the Court refused. Mr. Justice Funt instead ordered that ICBC pay the Plaintiff an additional $155,340.86 in ‘special costs’ because the insurer disregarded a Court order to produce surveillance evidence. In reaching this decision Mr. Justice Funt provided the following reasons:
[65] As noted, at the October 20, 2015 trial management conference, Justice Koenigsberg ordered the listing and description of any surveillance or video to occur on or before October 23, 2015. The existence of the 2015 Video was not disclosed until the start of the fourth week of trial and was, as Mr. Miller stated, harmful to the defence.
[66] ICBC is a public insurance company and an agent of our provincial government. It is a sophisticated litigant which assumes conduct of trials on behalf of many insureds in our province.
[67] A simple “pilot check” by ICBC, possibly in the form of an email or call to Mr. Levy, a review of its paid surveillance video invoices, or a review of its file notes, would have revealed the existence of the 2015 Video. The Court finds that ICBC showed a casual disregard for the October 20, 2015 Court Order; an order designed to ensure that the scheduled jury trial was heard without surprises or ambush.
[68] Mr. Miller stated that an ICBC adjuster often handles a large number of files and that this may explain the late disclosure of the 2015 Video. If ICBC adjusters are overworked and therefore prone to make mistakes, then it was incumbent on ICBC, on being told by its counsel of the October 20, 2015 Court Order, to ensure that a mistake had not been made.
[69] The late disclosure affected the efficient administration of justice. It required plaintiff’s counsel to consider the plaintiff’s options, and likely discuss and receive instructions on a significant matter just as the plaintiff’s case was about to close, rather than be focused on the conduct of the plaintiff’s case..

[75] When a jury trial is disrupted and affected by the actions of a party, the court’s rebuke or reproof is more likely warranted.

[76] The reputation of the court was also affected. Especially with a jury trial, a reasonable member of the public would have questioned the efficient workings of the trial and, more generally, the efficient administration of justice. He or she would question the significance and respect ICBC gives a court order designed to avoid surprise and trial unfairness.

[77] Finally, the video surveillance for all three years was central to the trial generally. Of course, the actual weight given to this evidence remains in the jury room, as it properly must.

[78] In sum, ICBC’s casual disregard for the disclosure rules, especially when reinforced by the October 20, 2015 Court Order, warrants rebuke in the form of an award of special costs.

"Reprehensible" Conduct Results in Special Costs Order Against Plaintiff Following Injury Trial

Written by admin on August 27, 2015. Posted in BC Supreme Court Costs Cases, Uncategorized.

Reasons for judgement were released today by the BC Supreme Court, Chilliwack Registry, ordering a Plaintiff to pay ICBC special costs following ‘reprehensible‘ conduct.
In today’s case (Tambosso v. Holmes) the Plaintiff was injured in two collisions and sued for damages. Prior to trial the Plaintiff received $36,895 in tort advances from ICBC. After a largely unsuccessful prosecution the trial damages awarded were slightly less than this resulting in a ‘zero judgement’ award. As a result the Plaintiff was ordered to pay the Defendant costs.
The Court went further, however, and ordered that the costs be increased to special costs as a result of the Plaintiff’s conduct. In reaching this decision Mr. Justice Jenkins provided the following reasons:

[33] Commencing at para. 52 of my reasons for judgment in this matter, I embarked upon my findings related to the credibility of the plaintiff. Previously in those reasons I had come to a conclusion that the plaintiff’s evidence regarding the “triggering event” causing her alleged PTSD and other psychological concerns had not happened. To be clear, the event in which the plaintiff claimed she feared for her life and had to jump out of the way of the vehicle driven by the defendant Holmes, as per her evidence that “his eyes are imprinted on my mind” and “I thought he was going to kill me, drive over me…” did not occur. Her evidence in this respect was contradicted by the independent witness who stated she had not exited her vehicle, as well as by the evidence of the plaintiff’s friend and passenger that the plaintiff had exited her vehicle but had taken only a few steps before jumping back into their vehicle before the Holmes vehicle came up the hill and passed the plaintiff’s vehicle. I found it most likely the plaintiff learned of the look in Mr. Holmes eyes from the independent witness, Jeremy Leal, who was in close proximity to Mr. Holmes immediately after the accident.

[34] The plaintiff repeated her false version of the events of the 2008 accident to several of the expert witnesses who testified at trial which led those experts to come to opinions as to the plaintiff suffering PTSD and other cognitive damage as a result of the interaction with Mr. Holmes. The deception by the plaintiff continued for several years up to and including the trial.

[35] In addition, my reasons for judgment at trial referred to clear conflicts between the evidence of the plaintiff and the video surveillance recorded by the defence, her evidence that she was not able to drive after the 2008 accident which conflicted with her driving of a rental car within days of the accident for several months, her Facebook postings, and her evidence at trial which was selective, inconsistent, completely uncooperative, non-responsive and simply false. The plaintiff’s evidence on cross-examination resulted in me coming to a conclusion that she had deliberately lied to her disability insurer, to Community Futures where she was paid for attempting a business development plan, to Canada Pension Plan staff and more, all of which resulted in her maintaining an income from the time of the 2008 accident up to trial in 2014. The plaintiff would declare in one instance that she was disabled from the 2008 accident and when convenient to keep funds coming her way would declare she was not disabled by that accident.

[36] The conduct of the plaintiff which must be considered most outrageous and reprehensible for the purposes of a special costs award were the circumstances under which her former friend, Rebecca Aldous, came to be a witness at trial for the defence. Those circumstances are described commencing at para. 188 of my reasons for judgment, which included reference to a voice mail message left by the plaintiff two days before Ms. Aldous was to testify. That message can only be interpreted as an attempt to intimidate Ms. Aldous from testifying. Why the plaintiff would leave a voice mail message of that nature which could and did come back to haunt her is a mystery; however, it is reflective of the behaviour of the plaintiff throughout the trial.

[37] I have no doubt that the actions of the plaintiff at trial and outside the courtroom have amounted to an ongoing effort to deceive the court which conduct deserves rebuke.

[38] I agree with the principles in awarding special costs listed by Madam Justice Gropper in Westsea Construction Ltd. A court must show restraint and must be satisfied of special circumstances to justify the award. The conduct rationalizing an award of special costs must also be “reprehensible”. Those principles are present in this case and are supported by the conduct of the plaintiff detailed in the reasons for judgment for the trial and earlier in these reasons.

[39] The defence is entitled to special costs to be taxed by the registrar, such costs as incurred by the defence from the commencement of each action until the conclusion of the trial.

Defendant Ordered to Pay 25% Greater Trial Costs for "Reprihensible" Failure to Attend Examination for Discovery

Written by admin on December 31, 2012. Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 14, BCSC Civil Rule 7. 117 Comments on Defendant Ordered to Pay 25117 Greater Trial Costs for "Reprihensible" Failure to Attend Examination for Discovery

Parties to a BC Supreme Court lawsuit can be forced to attend an examination for discovery set up by opposing litigants. Failure to attend can have a variety of consequences. Demonstrating one such consequence in action, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, punishing a non-attending part with increased costs.
In the recent case (Stanikzai v. Bola) the Defendant was found 75% at fault for a motor vehicle collision and was ordered to pay damages of just over $189,000. Prior to trial the Defendant failed to appear at an examination for discovery. Mr. Justice Smith found this behaviour was “reprehensible” and ordered that the defendant pay post trial costs at a level greater than they otherwise would have been. In reaching this decision the Court provided the following reasons:
[6]             Parties to civil litigation are required by R. 7-2(1) of the Supreme Court Civil Rules, to make themselves available for examinations for discovery. It is not something a litigant can choose to do or not do on the basis of her own convenience. If Ms. Bola was unable to attend the examination on the day it was set, her obligation was to notify her counsel and discuss alternate dates. Instead, she simply failed to show up.
[7]             I also find it difficult to believe that she had no knowledge of the false information her husband was apparently providing to defence counsel when a second discovery was requested. Ms. Bola showed a complete and unacceptable disregard for her duties under the law. I stress this was not the fault of defence counsel, who attempted to get her cooperation…
[10]         I find that the defendant’s refusal to appear at discovery meets the definition of “reprehensible conduct” and I would not hesitate to award special costs if I thought that conduct had affected the outcome of the trial. But, in the specific circumstances of this case, I find that there is another, more proportionate rebuke available.
[11]         Under normal circumstances the plaintiff, having been found 25 per cent responsible for the accident, would recover only 75 per cent of his costs. This arises from s. 3(1) of the Negligence Act, RSBC 1996, c 333:
3 (1) Unless the court otherwise directs, the liability for costs of the parties to every action is in the same proportion as their respective liability to make good the damage or loss.
[12]         Although payment of costs in proportion to the degree of liability is the default rule, the court has discretion to depart from it. That departure must be for reasons connected with the case, with the principle consideration being whether application of the usual rule will result in an injustice: Moses v Kim, 2009 BCCA 82 at para 70.
[13]         In these circumstances, I find that the interest of justice can best be served by depriving the defendants of the reduction in costs that they would otherwise benefit from and I award the plaintiff the full costs of this action.

"Reprehensible" Government Conduct Results in Special Costs Order

Written by admin on September 28, 2012. Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 14.

Adding to my archived posts addressing tensions between BC’s Judiciary and the Government, reasons for judgement were released today by the BC Supreme Court, Victoria Registry, finding the Government acted in a ‘reprehensible‘ way when dealing with Provincial Court Judges salaries in resorting to “secretive…unconstitutional considerations“. This resulted in an order for payment of special costs.
Today’s case (Provincial Court Judges’ Association of British Columbia v. British Columbia (Attorney General)) is the latest chapter dealing with a salary dispute between the Provincial Court Judges’ Association of BC and the Government. The PCJA succeeded in their petition respecting the remuneration dispute. The PCJA then sought payment of special costs associated with the litigation Mr. Justice Macaulay agreed this was an appropriate remedy and provided the following rebuke to the Government:
[12]         The aggravating feature in the present case is the entirely inappropriate response of the AG in the Cabinet submission. The AG knew that the Cabinet submission focused on issues, including the question of linkage between judicial and other civil servant salaries, that the Supreme Court of Canada had expressly rejected in Bodner as unconstitutional. That is evident from the wording of the submission and is deserving of censure.
[13]         Given the importance of the process to the public and the PCJA, coupled with the need for transparency in this proceeding, two other matters also deserve censure. First, ordinarily a copy of the Cabinet submission would not be produced. It was only produced in this case as a result of court order. If the Cabinet submission had not been produced, the court may not have appreciated that the government response was based on constitutionally inappropriate considerations. In part, that is because the government affidavit material described the content of the Cabinet submission in a misleading way.
[14]         Second, the AG spoke to the media on May 25, 2011, and specifically raised the linkage to other salaries as “another factor” for consideration by government in formulating its response. The AG did not provide an affidavit or any sworn evidence in this proceeding but he did respond, albeit by letter of his counsel, to questions that counsel for the PCJA raised respecting the media interview. Counsel for the PCJA describes the response as disingenuous. I am not prepared to go that far in the circumstances but the response was certainly less than forthright. The actual content and context for the interview is only available because the media recorded it.
[15]         In my view, the government’s conduct relating to the important constitutional process of setting judicial remuneration as well as its conduct during the judicial review proceeding deserve judicial rebuke. I reach this conclusion reluctantly but have kept in mind that the effectiveness of the process necessarily depends on the goodwill of government. The secretive resort to unconstitutional considerations during the framing of the government response is entirely inconsistent with the obligation of government as was its failure to be forthright during the proceeding.
[16]         In the result, the Legislative Assembly made its decision not understanding how Cabinet arrived at its decision. The public, the PCJA and the court are all entitled to more from the AG and the government
[17]         As a result, the PCJA is entitled to its costs, to be assessed as special costs.

An Example of the Hefty Price of "Loser Pays"

Written by admin on June 26, 2012. Posted in Uncategorized.

As previously discussed, the BC Supreme Court operates on a “loser pays” system typically requiring a losing litigant to pay the winner’s costs and disbursements. This reality goes a long way towards discouraging frivolous lawsuits and encouraging pre-trial settlement. The Loser Pays system can create hefty consequences as was demonstrated in reasons for judgement released this week by the BC Supreme Court, New Westminster Registry.
In this week’s case (Pearlman v. Critchley) the Plaintiff was involved in litigation with a “lengthy and tortuous history“. His various claims had been “in one form or another, dismissed at the trial level” and the Court went further declaring that the Plaintiff was a vexatious litigant.
The Plaintiff was ordered to pay special costs after having his claims dismissed. Today’s case dealt with assessing these and ultimately Registrar Sainty ordered that the Plaintiff pay costs of $42,977 providing an expensive lesson of BC’s loser pays system in action.