What is the test for denying costs on the basis of hardship?

British Columbia, Canada


The following excerpt is from Briante v. Vancouver Island Health Authority, 2015 BCSC 807 (CanLII):

The jurisprudence indicates that the financial circumstances of a litigant must be rather grim indeed to justify denying costs on the basis of hardship. For instance, in McHugh v. McHugh, [1996] B.C.J. No. 141 (S.C.), a family law proceeding, the court dismissed the successful respondent's claim for costs on the basis of hardship. In that case, the court held that the financial circumstances of the petitioner were “so precarious that any award of costs against her would work a very serious hardship.” At the time, the petitioner was pregnant, had no viable employment prospects, and historically had earned very little. Finally, the court noted that the costs award would destroy the petitioner's prospects of financial independence, a principle that is important in the area of family law.

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