What factors will be considered by the courts when determining whether a plaintiff would be entitled to a general rule of common law common law costs under s. 3 of the Rules of Civil Procedure?

British Columbia, Canada

The following excerpt is from FFS HK Ltd. v. P.T. 25 (Ship), 2011 BCSC 1418 (CanLII):

As was observed by Madam Justice Sinclair Prowse in Logeman v. Rossa, 2006 BCSC 692 at para. 75, the cases illustrate that when determining whether application of the general rule would be unjust, “most, if not all, aspects of the nature and conduct of the litigation may be considered”. Sinclair Prowse J. went on to say: For example, the Courts have looked at whether the plaintiff was forced to go to trial in order to obtain recovery; the costs of getting to trial, as well as the difficulty and length of the trial; whether, if costs are apportioned according to liability, the costs recovery available to the plaintiff will bear any reasonable relationship to his/her costs in obtaining the results achieved; the positions taken by the parties at trial, in particular whether the positions taken were appropriate and reasonable in the circumstances; whether the defendant made any settlement offers; and the ultimate results of the trial, asking whether the plaintiff achieved substantial success that would effectively be defeated if the costs were awarded pursuant to s. 3.

In Logeman v. Rossa, the plaintiff was awarded 100% of her costs although she was found to be 35% contributorily negligent for her injuries on the basis that the defendants had been “blatantly untruthful” on the pivotal issue of how the plaintiff’s eye injury had occurred. That untruthfulness had an adverse effect on the nature and the conduct of the litigation. The complete denial of any involvement by the defendants or knowledge of the circumstances in which the injury occurred made settlement impossible and made it more difficult for the plaintiff to pursue her claims. The defendants’ untruthfulness “complicated rather than clarified the issues” (at para. 80).

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