What factors are considered in determining whether a party should be entitled to special costs?

British Columbia, Canada


The following excerpt is from Zigarlick v. Vernon (City), 2017 BCSC 512 (CanLII):

The seminal case on the factors to be considered in making an award of special costs is Mayer v. Osborne Contracting Ltd., 2011 BCSC 914, where Walker J. suggested at para. 11 that an award of special costs may be justified where a party: (a) … pursues a meritless claim and is reckless with regard to the truth; (b) … makes improper allegations of fraud, conspiracy, fraudulent misrepresentation, or breach of fiduciary duty; (c) … has displayed “reckless indifference” by not recognizing early on that its claim was manifestly deficient; (d) … made the resolution of an issue far more difficult than it should have been; (e) … who is in a financially superior position to the other brings proceedings, not with the reasonable expectation of a favourable outcome, but in the absence of merit in order to impose a financial burden on the opposing party; (f) … presents a case so weak that it is bound to fail, and continues to pursue its meritless claim after it is drawn to its attention that the claim is without merit; (g) … brings a proceeding for an improper motive; (h) … maintains unfounded allegations of fraud or dishonesty; and (i) … pursues claims frivolously or without foundation.

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