IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20110107

Docket: S067563

Registry:
New Westminster

Between:

Marc
Joseph Jampolsky and Perry Jampolsky

Plaintiffs

And

Cindy
Salina Shattler, Robert A. Smithson and
Insurance Corporation of British Columbia

Defendants

Before:
The Honourable Mr. Justice Greyell

Reasons for Judgment

[1]            
On March 21, 2010, I issued reasons for decision granting the applicants,
the defendants in this action, special costs relating to a contempt application
brought against them by the plaintiff, Mr. Perry Jampolsky: Jampolsky v.
Shattler, 2010 BCSC 408 [the “Costs Decision”].

[2]            
In the present application, the defendants seek special costs for the
special costs application as well as special costs for the registrar’s hearing
to determine the amount of such costs.

[3]            
It is not necessary to set out the background to this matter in any
extensive manner as it is set out in the Costs Decision.

[4]            
Very briefly, the plaintiff in the present action and the plaintiff in
another motor vehicle accident action, Mr. Sovani, both represented by the same
counsel, Mr. Harding, brought contempt applications against the defendants,
their counsel, ICBC and various representatives of ICBC.

[5]            
Mr. Justice Edwards dismissed the applications on March 23, 2007: Sovani
v. Gray et al.; Jampolsky v. Shattler et al., 2007 BCSC 403, and asked
the parties to address the issue of costs of the application in a separate
hearing.  The matter was ultimately referred to me and after receiving oral and
written submissions I issued the Costs Decision.

[6]            
The parties have now concluded the trial in the underlying litigation
and judgment is reserved.  They have been unable to agree on the form of order
arising from the Costs Decision.

[7]            
The Sovani matter was resolved prior to the issuing of my
decision on special costs and accordingly this matter relates only to the Jampolsky
action.

[8]            
While Mr. Jampolsky and Mr. Harding were separately represented on the defendants’
application for special costs they took similar positions:  special costs were
not warranted because the action Mr. Harding took in bringing the contempt
motions was appropriate in the circumstances.

[9]            
I rejected this argument at para. 19 of the Costs Decision:

In my view, even assuming Mr.
Harding was right in his position the defendants had improperly used
confidential information, the plaintiff’s application to declare the defendants
and named persons in contempt of court and to seek fines and special costs against
them was an abuse of the court’s process.  The bringing of the contempt
motion was unnecessary and excessive.  Mr. Harding’s legal issue could
have been dealt with on a return of the plaintiff’s motion or by the bringing
of a separate motion:  either of which would have been a reasonable and
rational manner of resolving the issue.  A resolution of the legal issue
did not require the heavy hand of a contempt motion:  see Skybound Dev.
Ltd. v. Hughes Properties Ltd. (1988), 24 B.C.L.R. (2d) 1 (C.A.) where
special costs were awarded.

[10]        
In 927966 Ontario Ltd. Madam Justice Stromberg-Stein said, at
paras. 5 and 7:

[5]        On the issue of what is included
in costs, in [Szpradowski (Guardian ad litem) v. Szpradowski Estate,
[1992] B.C.J. 2536 (S.C.)] Cowan J. held at p. 2:

…Costs pertaining to preparation for
attendance at an assessment of a party’s bill of costs are in my opinion part
of such [special] costs.

[7]        It
makes no sense that an award for special costs includes the costs of an
assessment but not the costs of the application itself.

[11]        
I agree. A costs award at Scales A to C generally does not cover the
expenses incurred by a party in pursuing or defending an action or application.
Where special costs are ordered against a party for reprehensible conduct, it makes
little sense to leave the aggrieved party out of pocket because the party who
has been censured chose to dispute the application for special costs.

[12]        
The costs of the special cost application should follow the event:  that
is, the successful party, the defendants in this case, should recover special
costs for making the application: 927966 Ontario Ltd. v. Cogenix
Development Corporation, 2002 BCSC 442; Antle v. NCC Financial Corp.,
2009 BCSC 479; Steinebach v. Strobel, 2006 BCSC 217; and J.A.S. v. H.M.,
2008 BCCA 5.

[13]        
Those special costs should include the taxation of such special costs
before the registrar.

[14]        
Mr. Jampolsky took the position that he should not be responsible for
special costs for issues which did not directly involve him. His counsel argued
that most of the time at the hearing on special costs related to Mr. Harding’s
conduct in pursuing the contempt applications and that the defendants spent a
great amount of research time and expense focusing on their claim against Mr.
Harding personally.  Mr. Jampolsky says he should not be responsible for special
costs for that portion of the hearing.

[15]        
In the Costs Decision I concluded I was unable to examine the privileged
relationship between solicitor and client to inquire into such issues as whether
Mr. Harding was “on a frolic of his own” or whether he was acting under Mr. Jampolsky’s
instructions, as defendants’ counsel argued.  Even if Mr. Jampolsky waived or
intended to waive such privilege there was no evidence Mr. Harding was acting
in such a manner.  If there are issues between the plaintiff and Mr. Harding
concerning whether and to what extent the latter was following the former’s
instructions, those are matters to be determined in a separate forum.

[16]        
If defendants’ counsel took unnecessary or extraneous steps in pursuing
the application, that is an issue to be addressed before the registrar on a
taxation of the accounts.

[17]        
The defendants also sought a Bullock order permitting them to recover
from Mr. Jampolsky any costs awarded to Mr. Harding for dismissal of the motion
for special costs against him.  As Mr. Harding has not sought costs it is not
necessary to deal with this part of the application.

"GREYELL J."