What is the test for following costs in a personal injury action?
British Columbia, Canada
The following excerpt is from Ashlie v. Ashlie, 2010 BCSC 1101 (CanLII):
The general rule is that costs should follow the event. The event is the outcome of the trial. In order to win the event, a party must achieve “substantial success” at trial. This means that, with respect to the disputed matters, looked at globally and in terms of their relative importance, the party achieved a measure of success amounting to 75% or better. See Fotheringham v. Fotheringham 2001 BCSC 1321 (Bouck J.); leave to appeal refused: 2002 BCCA 454.
It seems to me that the defendant has been substantially successful. The court does have a discretionary power to refuse an order of costs to a successful party “in order to preserve a precarious division of family assets or to offset an onerous long term spousal support obligation.” See Seminof v. Seminof 2007 BCSC 361 (Edwards J.) at para. 12. That does not seem to be the case here.
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