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Court declines to order special costs against employee’s lawyer
May 30, 2005

Under the Rules of Court, a successful party usually is entitled only to recover a portion of its legal costs. However, if the opposing party’s conduct is sufficiently egregious, a court may award “special costs,” which typically results in a significantly greater recovery of legal costs for the successful party.

In Billows v. Canarc Forest Products Ltd., the employer was successful in defending against a wrongful dismissal action and in its counter-claim against the employee for breach of fiduciary duty. The employer sought an order for special costs against the employee on the basis that the employee’s lawyer had acted improperly by:

  • failing to disclose documents when ordered to do so by the court;
  • relying on facts not in evidence, and;
  • raising new issues that were not specified in the lawsuit.

    The Court concluded it had the discretion to order special costs if a lawyer’s actions were deliberately misleading, dishonest, or motivated by bad faith. In this case, though the lawyer’s conduct was characterized by mistakes, errors in judgment and ill-conceived opinions, the Court found no evidence of bad faith, deceit or dishonesty on the part of the employee’s counsel. As a result, the Court declined to order special costs, although it acknowledged that the case fell close to the threshold for justifying such an award.

    Billows v. Canarc Forest Products Ltd., 2005 BCSC 623, April 26, 2005

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