Can a judge award special costs for a number of trial days, attributable to reprehensible conduct?

While recognizing the general rule that special costs are to be awarded for the entire proceeding, it remains open to the court, in appropriate cases, to exercise its discretion so as to award special costs for a number of trial days, attributable to reprehensible conduct: Wilson v. Lougheed, 2012 BCSC 1166. In Wilson Madam Justice Ballance awarded special costs to the plaintiff for four days of a 14-day trial and Scale B costs for the remaining 10 days.

In Romfo v. 1216393 Ontario Inc., 2007 BCSC 1772, leave to appeal ref’d 2008 BCCA 101, the court made a partial award for special costs for these aspects of the proceeding: the document production motions, the motions to compel further examinations for discovery, and the preparation for and conduct of the examination of a representative of the defendant. The court held that the conduct of the defendants, in failing to produce some documents and essentially wasting the plaintiff’s time at an examination for discovery, justified a partial award for special costs, but that to award special costs for the whole proceeding would be disproportionate (at paras. 10-11).