What is the test for awarding costs in a personal injury action?

British Columbia, Canada


The following excerpt is from McKay v. Marx, 2012 BCSC 484 (CanLII):

The plaintiff places heavy emphasis on the reasons in Fotheringham v. Fotheringham, 2001 BCSC 1321 (“Fotheringham”), which articulate a four-step inquiry to determine whether to award costs. That inquiry is set out at para. 46: 1. First, by focusing on the "matters in dispute" at the trial. These may or may not include "issues" explicitly mentioned in the pleadings. 2. Second, by assessing the weight or importance of those "matters" to the parties. 3. Third, by doing a global determination with respect to all the matters in dispute and determining which party "substantially succeeded," overall and therefore won the event. 4. Fourth, where one party "substantially succeeded," a consideration of whether there are reasons to "otherwise order" that the winning party be deprived of his or her costs and each side then bear their own costs.

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