What is the legal test for special costs?

The role and threshold for specials costs were succinctly described in Gichuru v. York, 2012 BCSC 1385 at para. 6: “…special costs are meant to provide a successful party in litigation with indemnity for all legal expenses reasonably incurred, and will be awarded against an unsuccessful litigant as punishment for engaging in reprehensible conduct during the litigation.”

The term “reprehensible” encompasses a wide array of conduct: A wide meaning is given to the word “reprehensible”. The term represents a general and all encompassing expression of the applicable standard for an award of special costs. “Reprehensible” conduct includes conduct that is scandalous, outrageous, or constitutes misbehaviour, as well as milder forms of misconduct that in a court’s view deserves reproof or rebuke. In determining whether the conduct of a party is reprehensible, courts may consider whether the conduct complained of is a type from which it should seek to dissociate itself. [Mayer v. Osborne Contracting Ltd., 2011 BCSC 914 at para 8].