IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20110117

Docket: M063729

Registry:
Vancouver

Between:

Yi-Lang
Chen also known as Allan Chen, an infant,
by his litigation guardian, Li Jin Huang also known as Jean Huang

Plaintiff

And

Juan
Jose Beltran and Soleybi Leticia Fernandez

Defendants

Before:
The Honourable Mr. Justice Greyell

Reasons for Judgment

[1]            
On March 10, 2010 I issued reasons for judgment dismissing the
litigation guardian’s action for damages on behalf of her son Allan Chen
arising from an accident in which he sustained serious injury (the “Accident”). 
The Accident occurred on February 27, 2006 when Allan, riding a skateboard,
entered the intersection of 10th Street and Royal Avenue in New Westminster and
was struck by a car operated by the defendant Mr. Beltran.  The trial proceeded
on the issue of liability only with quantum of damages to be determined once the
issue of liability was decided.  The plaintiff admitted Allan was partially
responsible for the Accident but submitted the defendants were also at fault.

[2]            
I concluded Allan was solely responsible for the Accident.

[3]            
The plaintiff has now applied for various orders concerning costs.  The
defendants have presented a bill of costs in the amount of $75,735.31.  The plaintiff
argues the following relating to the bill of costs:

A.             
That the defendants, even though successful, should be denied their costs
because of the financial circumstances of the litigation guardian and her
family;

B.             
That the defendants should be denied their costs because of the manner
in which the defendants conducted their defence at the trial;

C.             
Alternately to a) and b), that the defendants should be denied the costs
of an accident reconstruction expert retained by the defendants and called at
trial, and that the defendants should be required to pay the cost of the plaintiff’s
reconstruction expert who the plaintiff called at trial;

D.             
The defendants should be restricted in their bill of costs to the cost
of one counsel;

E.             
The plaintiff should not be required to pay for a disbursement relating
to the cost of a psychiatric assessment;

F.             
The plaintiff should not be required to pay for a disbursement relating
to the cost to “skip trace” the defendants.

[4]            
The defendants, in turn, seek special costs of this application against
the plaintiff because the plaintiff made allegations in its submissions on
costs the defendants submit are “untrue, baseless and reprehensible”.  The
defendants base this claim on an assertion in the plaintiff’s argument on costs
that the defendants improperly conducted their case at trial in such a manner as
to attempt to mislead the Court.

[5]            
I will review the relevant principles behind an award of costs and then deal
with these matters in order.

The Law of Costs

[6]            
Costs generally follow the event.  That is, while this Court retains
discretion in the matter of awarding costs, a successful party is generally
entitled to the costs of prosecuting or defending the lawsuit as
indemnification for the costs incurred by being forced to do so by the
unsuccessful party.

[7]            
Rule 14-1(9) reads:

14-4(9)   Subject to subrule
(12), costs of a proceeding must be awarded to the successful party unless the
court otherwise orders.

[8]            
Section 3(1) of the Negligence Act, R.S.B.C. 1996, c. 333, reads:

3(1)      Unless the court
otherwise directs, the liability for costs of the parties to every action is in
the same proportion as their respective liability to make good the damage or
loss.

[9]            
In Bailey v. Victory (1995), 4 B.C.L.R. (3d) 388, 57 B.C.A.C. 23
(C.A.) Cumming J.A. stated for the Court of Appeal, at para 13:

The general rule, as set out in R.
57(9) [now Rule 14-9], is that costs follow the event.  The successful litigant
is entitled to costs as indemnification for the costs incurred in having been
forced into litigation.  The rules [sic] contain other provisions which
show, and recent cases have indicated, that the power of the court to award
costs is not limited to indemnification.  In appropriate cases awards for costs
can be made with a view to discouraging frivolous claims or defences and
unnecessary or abusive proceedings, to encourage prompt and early settlements,
and, in appropriate cases, to penalize improper conduct.  But through the Rules
and the decided cases runs one simple overriding principle which must not be
lost sight of – that is that discretionary exceptions to the general rule must
be made judicially.

[10]        
More recently, in Catalyst Paper Corporation v. Companhia de Navegação
Norsul, 2009 BCCA 16, Hall J.A. stated that different causes of action
should not result in a different approach to the assessment of costs because of
the uncertainty such an approach would cause in the law of costs.  He confirmed
the general approach of the courts at para. 16 of his judgment:

[16]      It seems to me that the
trend of recent authorities is to the effect that the costs rules should be
utilized to have a winnowing function in the litigation process.  The costs
rules require litigants to make careful assessments of the strength or lack
thereof of their cases at commencement and throughout the course of
litigation.  The rules should discourage the continuance of doubtful cases or
defences.  This of course imposes burdens on counsel to carefully consider the
strengths and weaknesses of particular fact situations.  Such considerations
should, among other things, encourage reasonable settlements.

A.       The financial circumstances of the guardian ad litem and her
family

[11]        
The first basis upon which the plaintiff says the defendants should be
denied costs is that Allan suffered significant injuries in the Accident and
will require ongoing medical and psychological care throughout his life.  His
ongoing care will involve significant cost to both his parents.  Allan’s
parents have already incurred substantial debt to prosecute the lawsuit, have
limited financial resources and will have difficulty providing for Allan’s future
care even if they are successful on this application.  The plaintiff says that
an order for costs will financially “cripple” the family.  While I have great sympathy
for Allan’s parents the case law is clear that the financial circumstances of a
litigant, standing alone, are not to be taken into consideration as a factor in
the awarding of costs.

[12]        
In Robinson v. Lakner (1998),159 D.L.R. (4th) 191, 107 B.C.A.C.
64 (C.A.) the Court of Appeal allowed an appeal from a decision by the trial
judge to limit costs awarded to a successful defendant to $1,500 because of the
plaintiff’s “difficult financial circumstance”.  The Court held, at para. 5,
that “financial hardship in itself is not a sound basis for departing from the
usual rule with respect to costs”.

[13]        
In Cowherd v. Fraser Valley Health Region et al, 2004 BCSC 698,
Madam Justice Ballance stated, at para. 5:

[5]        The principle which
has emerged from recently decided authorities is that, in general, the
unfortunate personal circumstances and characteristics of a litigant are not to
be taken into account by the court in exercising its discretion in making an
award of costs.  Such personal circumstances would encompass a party’s needy financial
situation (Brown v. Black Top Cabs Ltd. (1997), 43 B.C.L.R. (3d) 76
(C.A.); Zelenski Estate v. Fairway (1998), 60 B.C.L.R. (3d) 76 (C.A.); Churchland
v. Gore Mutual Insurance Co. (unreported), September 23, 1999, No. SO-9912,
Vancouver (S.C.).  There is also authority that the financial hardship of a
litigant who would otherwise be responsible to pay costs should not, standing
alone, justify a departure from the ordinary rule.  (Robinson v. Lakner
(1998), 159 D.L.R. (4^th) 191 (B.C.C.A.)).

[14]        
It is clear based on the above authorities that this Court is unable, on
any principled basis, to take the plaintiff’s financial circumstances into
account in determining whether to award costs.

[15]        
To conclude otherwise would undermine the rationale underlying Rule 14-9
and would likely lead to the promotion of litigation rather than to promote the
“winnowing” function described by Hall J.A. in Catalyst Paper.  It would
lead to a collapse of the general principle discussed in the authorities and
result in the unacceptable proposition that costs in each case would be
measured not by a party’s success but by the personal financial circumstances
of the litigants.

[16]        
However, while financial hardship standing alone does not warrant
mitigation of an award of costs, there are other circumstances raised by the
plaintiff which I now turn to consider.

B.       The defendants’
manner of conducting their defence; and

C.       The cost
of the accident reconstruction experts’ reports

[17]        
The plaintiff also says the defendants should be denied costs because they
presented a defence “based on facts they knew to be untrue.”

[18]        
This assertion is closely tied to the plaintiff’s alternative argument
that even if costs are awarded against them, they should not be required to pay
the costs of the accident reconstruction experts.  I will therefore deal with
these matters together.

[19]        
The plaintiff says that the defendants called Mr. Ising, their accident
reconstruction expert, to give opinion evidence prior to calling the defendant
driver, Mr. Beltran, so that Mr. Beltran’s evidence could be tailored so
as to be consistent with the reports and thereby mislead the Court.

[20]        
Mr. Ising testified in support of two reports he had prepared dated April
27, 2009 and December 29, 2009.  The first report was prepared to “assess the
visibility and avoidance potential for Mr. Beltran.”

[21]        
The second report was a “rebuttal” report to a report prepared by Mr. Rempel,
the accident reconstruction expert retained by the plaintiff.

[22]        
Mr. Rempel was retained by the plaintiff to provide a technical analysis
of the Accident.  He prepared two reports.  The first report, issued November
3, 2009, largely responded to Mr. Ising’s first report; the second report,
issued January 4, 2010, was in response to Mr. Ising’s “rebuttal” report.

[23]        
Counsel for the plaintiff says the plaintiff would not have retained an
accident reconstruction expert had the defendants not retained Mr. Ising.  I
accept the plaintiff’s position.  There is nothing in Mr. Rempel’s reports to
indicate otherwise.  The two reports prepared by Mr. Rempel were clearly
rebuttal reports prepared in response to Mr. Ising’s reports.  I also conclude
it was reasonable in the circumstances for the plaintiff to have retained Mr. Rempel.

[24]        
I ultimately did not rely on either the reports of Mr. Ising or Mr. Rempel. 
I concluded at paras. 19-22 of my reasons:

[19]      Both the plaintiff and defendants called accident
reconstruction experts to give evidence.   I have found their evidence to be of
no assistance to me in reaching my conclusions as the assumptions upon which
both witnesses based their opinions are not supported by my findings of the
facts.  The plaintiff called Mr. Rempel and the defendants called Mr.
Ising.

[20]      The premise of Mr. Rempel’s opinion, in addition to
addressing matters raised in Mr. Ising’s report, was that had Mr. Beltran been
travelling at a slower rate of speed he would have been able to avoid the
collision with the plaintiff.  The assumptions used by both experts were based
on when and where Mr. Beltran first saw Allan and the pressure Mr. Beltran then
applied to the brake pedal of the vehicle.  In my view, both assumptions do not
correspond to the evidence at trial.

[21]      Mr. Ising assumed Mr. Beltran was between 28 and 40
metres from the intersection when he first noticed Allan. The preponderance
of evidence is that Mr. Beltran was much closer to the intersection. 
I accept Mr. Beltran’s evidence he was about two car lengths from the
intersection when he first saw Allan.  Mr. Ising also assumed Mr. Beltran did
not hit his brake pedal as hard as he could. This assumption does not
correspond to Mr. Beltran’s evidence. Again, I accept Mr. Beltran’s
testimony that he applied his brakes as hard as he could and swerved his
vehicle away from Allan.

[22]      Mr. Rempel acknowledged
in cross-examination he did not take into account any time lag to account for
human reaction time.  That is, he did not take into account the time it would
have taken Mr. Beltran to recognize the emergent situation developing in front
of him.  I accept the defendant’s position it would have taken time for Mr.
Beltran to recognize and react to the danger posed by Allan coming into her
sight from the right.  Mr. Rempel’s report and opinion evidence is likewise of
no assistance to the Court as it is based on many of the same assumptions upon
which Mr. Ising based his report. [Emphasis added.]

[25]        
Mr. Ising based his first report on several assumptions:  that the vehicle
Mr. Beltran was driving was travelling between 40 to 60 km/h at the time
he saw Allan (that is at hazard detection); that the road surface was wet; that
Allan was sitting on his skateboard; and that he was skateboarding down the
center of the sidewalk before proceeding into the intersection.  He concluded
it was not possible to determine the actual speed of the vehicle as the road
was wet and the vehicle left no skid marks and, importantly, that while the
brakes of the vehicle were applied there was no way of knowing the degree to
which they were applied, the duration of such application or Mr. Beltran’s
distance from the intersection at the time the brakes were applied.  His
conclusions at p. 11 of his report were:

Based on the assumptions and analysis outlined in this
report, the following conclusions were drawn:

1) Assuming
an average response by Mr. Beltran, the Fernandez Mazda was about 29 meters
away from the point of impact at hazard detection if travelling 40 km/h, 35
meters away if travelling 50 km/h, or 41 meters away if travelling 60
km/h.

2)         If Mr. Beltran’s hazard
perception was concurrent with Mr. Chen’s emergence from behind the bushes as
the northeast corner of the intersection, then the average speed of the Chen
skateboard was about 11 to 12 km/h during its visible exposure. [Emphasis added]

[26]        
Further Mr. Ising determined that Mr. Beltran had not fully locked the
brakes from the rest position of the vehicle at the scene:

[T]he significant leftward
steering maneuver [sic] completed by Mr. Beltran indicates the Mazda’s
brakes were not fully locked.  However, the fact that the Mazda came to rest
within the intersection indicates that the brakes were applied.  The degree to
which they were applied and the length of time for which they were applied is
unknown…

[27]        
As stated, Mr. Beltran gave evidence after Mr. Ising testified.  In
direct examination he testified he was from the witness box to the door of the
courtroom – some 30 feet or two car lengths from Allan when he first saw him. 
He was not asked further questions concerning the circumstances of the Accident
in direct examination.

[28]        
Mr. Beltran testified in cross-examination that the front of his car was
in the intersection when he saw Allan and that perhaps two seconds passed
between the time he saw him and when Allan hit the car.

[29]        
In cross-examination defendants’ counsel elicited answers from Mr.
Beltran that he was travelling closer to 40 km/h than to 50 km/h when he first
saw Allan and that he turned the wheel and “slammed” on the brakes of the
vehicle immediately upon seeing him.

[30]        
Accordingly, at least in two significant respects the assumptions
underlying Mr. Ising’s reports differed from the evidence given by Mr. Beltran:
the manner in which Mr. Beltran applied the brakes once he observed Allan;
and the distance he was from Allan when he noticed him.

[31]        
The plaintiff relies on this evidence not only to argue that the
defendants should pay the costs associated with the experts and their reports,
but also to demonstrate that Mr. Ising gave ‘untrue’ evidence and that the
defendant Mr. Beltran testified to such a manner in direct examination as
to purposefully avoid giving evidence which contradicted the assumptions drawn
by Mr. Ising.  In short, the defendants’ counsel called Mr. Ising to testify
before calling Mr. Beltran because had Mr. Beltran been called first his
evidence may have skewed the basis upon which Mr. Ising had formed his
opinion.  Plaintiff’s counsel further points to the very limited questions
asked of Mr. Beltran in direct examination.  He says the defendants again
attempted to limit facts adduced to the Court which would have brought into
question Mr. Ising’s reports.

[32]        
While the evidence given at trial by the defendant Mr. Beltran
concerning how far he was from the intersection when he first observed Allan and
the manner in which he applied the vehicle’s brakes was at substantial variance
with the evidence given by Mr. Ising, I cannot draw an inference the defendants
(or, as the plaintiff has argued, their controlling mind, ICBC) knew of the
contradiction and deliberately put forward a defence based on facts they knew
to be untrue.  Arguably the evidence of Mr. Ising was less favourable to the
defendant Beltran than his own evidence.

[33]        
Further, one can assume the plaintiff was aware of Mr. Beltran’s version
of the Accident prior to the trial through the examination for discovery process. 
The plaintiff conducted an examination for discovery of Mr. Beltran and had an
opportunity to challenge Mr. Ising on his assumptions when he was being
cross-examined.

[34]        
The plaintiff relies on Oasis Hotels Ltd. v. Zurich Insurance Co. (1981),
124 D.L.R. (3d) 455, 28 B.C.L.R. 230 (C.A.) and Cardwell et al v. Perthen et
al, 2007 BCSC 366.  These cases are distinguishable from the present case
as the courts in those cases were dealing with whether costs should be awarded
to parties who were found to be deceptive in giving their evidence.  There is
no basis for concluding that is the case here.

[35]        
I therefore do not accept that the defendants’ should be denied costs
because of the manner in which they conducted the defence.

[36]        
What emerges however is that based on the contents of his reports and
evidence at trial, there appears to have been little, if any, communication
between the defendant Mr. Beltran and Mr. Ising.  There was a significant
difference between Mr. Beltran’s evidence and the assumptions relied on by
Mr. Ising.  As I have said, ultimately I concluded his reports and the rebuttal
report of Mr. Rempel were of no assistance in reaching a decision on the cause
of the Accident and were unnecessary to the conduct of this litigation.

[37]        
Rule 14-1(14) (formerly Rule 57(14)reads:

14-1(14) If anything is done or omitted improperly or
unnecessarily, by or on behalf of a party, the court or a registrar may order

(a)        that
any costs arising from or associated with any matter related to the act or
omission not be allowed to the party, or

(b)        that the party pay the costs
incurred by any other party by reason of the act or omission.

[38]        
Rule 11-7(4) reads:

11-7(4)   If an expert has been
required to attend at trial for cross-examination by a demand under subrule (3)
and the court is of the opinion that the cross-examination was not of
assistance, the court may order the party who demanded the attendance of the
expert to pay to the other party or to the expert costs in an amount the court
considers appropriate.

[39]        
Both Mr. Rempel and Mr. Ising were required to attend at trial for cross-examination. 
The collective cross-examinations of both consumed the better part of two days
of a four-day trial.  Mr. Rempel’s cross-examination was in excess of one day.

[40]        
The disbursement claimed by the defendants for retaining Mr. Ising is $23,759.95. 
The disbursement paid by the plaintiff to retain Mr. Rempel is $10,517.85.  In
my view the appropriate remedy in this case, given the lack of usefulness to
the Court of the Ising reports, that the Rempel reports were obtained as
rebuttal reports to the Ising reports and that considerable trial time was
spent in cross-examination on these reports is to disallow the defendants’ disbursement
for the Ising reports and to require the defendants to pay the plaintiff’s
disbursement for the Rempel reports.

[41]        
I am further of the view the defendants should not recover items
incurred for consulting with its expert or for time spent preparing to examine for
Mr. Ising’s direct at trial or the cross-examination of either Mr. Ising or Mr.
Rempel.  At least 1.5 days of this four-day trial were consumed with
cross-examination of these experts.  The plaintiff should not be charged for
this time in the defendants’ bill of costs.

[42]        
With these general directions, the registrar will determine the
appropriate items and units.

D.       Restricting the defendants’
Bill of Costs to one counsel

[43]        
The plaintiff argues the defendants should only be entitled to 60 units
for trial rather than 120 units as claimed by the defendants for two counsel
being present.  The plaintiff says it was unnecessary for two counsel to be
present as the trial was short and uncomplicated.

[44]        
The plaintiff acknowledges there were three persons present at counsel table
for the plaintiff but says that one was an articling student present for
training purposes and the second was a young lawyer who attended for trial
experience.

[45]        
The case law suggests that the importance of the matter to the parties,
the factual complexity of the matter and the number of witnesses are relevant
to assessing whether it is reasonable for two counsel to be present:  see Antorisa
Investments Ltd. v. 172965 Canada Ltd., (January 23, 2007), Doc.
T98-CT-18323, 2007 CarswellOnt 284 (Ont. S.C.J.); Aon Consulting Inc. v.
Watson Wyatt & Co., (February 3, 2006), Doc. 05-CV-290952-PD2, 2006
CarswellOnt 9132 (Ont. S.C.J.).

[46]        
I consider it reasonable for the defendants to have had two counsel
present at the trial as there were a number of lay witnesses who gave evidence.

E.       Disbursement
relating to psychiatric assessment

[47]        
The plaintiff objects to the inclusion of a disbursement in the amount
of $5,307.50 for a report of Dr. Smith dated June 23, 2009 which is included on
the defendants’ bill of costs.

[48]        
The plaintiff argues she was never served with the report and that the
report was likely obtained and used by ICBC to determine its obligation to
provide “no fault” benefits on behalf of Allan.  The defendants say Dr. Smith’s
report was requested before the liability and damages portions of the trial
were split, that damages were a live issue and defence counsel determined an
opinion from Dr. Smith was necessary to assist the defendants in their response
to the issues raised by the plaintiff.

[49]        
I have no way of determining whether the report of Dr. Smith was in fact
used by ICBC for the administration of its “no fault” benefit plan.  If the
report was requested by the defendants for the purposes they say it is a proper
disbursement.  I will leave to the registrar a determination of whether this is
the case.

F.       Disbursement
to “skip trace” the defendants

[50]        
In my view it is not reasonable or logical for the defendants to recover
costs from the plaintiff to discover their own whereabouts.  I disallow this
item.

G.      Special
costs against the plaintiff on this application

[51]        
The defendants say that because of statements made by the plaintiff’s
counsel in submissions on costs, I should order special costs of this
application against the plaintiff.

[52]        
The statements contained in the plaintiff’s written argument about which
the defendants are concerned are:

14.       A
substantially successful party who has deceived the court even on small matters
may be denied costs. [citing] Cardwell v. Perthen, 2007 BCSC 366.

…

21.       While
the defendants were completely successful at trial, it is submitted that they
should not be rewarded for presenting what amounted to a defence based on facts
they knew to be untrue.

22.       …
Given [the plaintiff is a minor who has no memory of the Accident], it is
submitted that there is a high onus on the defendants to present honest facts
about the circumstances of the accident which significantly wounded the
infant.  This is particularly so given the fact that the controlling mind of the
defendants is a provincial insurance company.

…

30.       Mr.
Beltran knew that Mr. Ising’s report was based on untrue assumptions.  He also
knew that the report drew false conclusions.  Despite this, he allowed the
report and testimony to be put to the court as if correct, and testified in
such a manner so as to not contradict it.  Further, even if he personally had
no knowledge of this, the controlling mind behind his defence (ICBC), clearly
did.

31.       It is submitted that the
defendants should not be rewarded in costs for putting forward a defence which
was based on facts that they knew to be false.  While they were ultimately
successful on the basis of the facts as found by the court, this does not
alleviate the fact that the facts they presented, and upon which they wanted
the court to rely upon, were known to be untrue.  This is particularly
reprehensible given that the plaintiff is an infant with no memory of the event
in dispute.

[53]        
These statements are clearly directed at the manner in which defence
counsel presented the defence evidence, the questions he asked his witness Mr. Beltran
and his general strategy in presenting the case for the defendants.

[54]        
While there was certainly a disconnect between the evidence given by Mr. Beltran
and the facts and assumptions relied on by Mr. Ising that is not, in the Court’s
experience, an unusual circumstance.  There was no suggestion in the evidence that
either of Mr. Ising or Mr. Beltran was tailoring his evidence to suit the
circumstances.  Both gave evidence and each was subject to a searching cross-examination. 
There is no evidence before me that either witness sought to deceive the Court.

[55]        
Absent such evidence, I find the statements made by plaintiff’s counsel
to be unwarranted.  They show a marked departure from the principle of civility
which is a hallmark of the legal profession.

[56]        
The importance of civility in the practice of law cannot be overstated.  In
the words of K. Nagorney from his article “A Noble Profession? A discussion of
Civility Among Lawyers” (1999) 12 GJLE 815 at 816-17:

Civility within the legal system
not only holds the profession together, but also contributes to the
continuation of a just society. [Our legal system] is markedly adversarial and
without something to act as a glue within, its adversarial nature might overrun
its underlying goal of preserving liberty and justice. Conduct that may be
characterized as uncivil, abrasive, hostile or obstructive necessarily impedes
the goal of resolving conflicts rationally, peacefully, and efficiently, in turn
delaying or even denying justice. Lawyers have altered the art of argument as a
form of discourse into battle, made trial a siege and litigation a war. This
mind set eliminates peaceable dealing and often forces dilatory, inconsiderate
tactics that detract from just resolution.

[57]        
I agree with this statement.  Unsupported allegations that opposing
counsel has failed in his ethical duty to the Court are deserving of censure.

[58]        
The law on special costs is set out in Garcia v. Crestbrook Forest
Industries Ltd. (1994), 119 D.L.R. (4th) 740, 9 B.C.L.R. (3rd) 242 (C.A.) at
para. 17:

[T]he single
standard for the awarding of special costs is that the conduct in question
properly be categorized as “reprehensible”. As Chief Justice Esson said in Leung
v. Leung [(1993), 77 B.C.L.R.(2d) 314], the word reprehensible is a word of
wide meaning. It encompasses scandalous or outrageous conduct but it also
encompasses milder forms of misconduct deserving of reproof or rebuke.
Accordingly, the standard represented by the word reprehensible, taken in that
sense, must represent a general and all encompassing expression of the
applicable standard for the award of special costs.

[59]        
I am of the view the plaintiff’s counsel’s conduct in making the above
submissions falls within the definition of “reprehensible” and standing alone warrants
an award of special costs.

[60]        
The comments of the Madam Justice Koenigsberg in Interstate
Investments Ltd. v. Pacific International Securities, 10 B.C.L.R.(3d) 265,
1995 CanLII 2123 are applicable:

[19]      In Ip v. Insurance Corp. of British Columbia
(1994), 89 B.C.L.R. (2d) 251 (S.C.), Mr. Justice McKinnon dealt with an
application for special costs. That case involved an allegation of fraud made
by the defendant. The fraud was pleaded without foundation as found by the
trial judge. At p. 253 of the decision, Mr. Justice McKinnon said this:

I appreciate that the defendant is
faced with many fraudulent claims and that it has a duty to refuse payment
where reasonable grounds exist for so doing. An allegation of fraud, wilful
misstatements, or other such claims made against a person casts a serious pall
over his or her reputation in the community. Very careful consideration must be
given by the defendant before making such serious allegations. At the very
least, a prima facie case must exist and if it does not then special costs by
way of "chastisement" is a reminder to the defendant to exercise
better care in the future.

[20]      Where, as here, there
is an allegation of serious or outrageous conduct alleged against the
plaintiff’s solicitor, the words of Mr. Justice McKinnon have special
application. The plaintiff’s solicitor had no direct interest in this             litigation
other than to represent her client’s interests in the transactions. She was and
is a professional person, engaged in carrying out her professional duties both
in communicating with the defendant and in swearing the affidavit she did. As
is the case with any legal practitioner, her reputation for integrity is the
most valuable asset she has. Each professional owes all others reasonable, even
vigilant, care in assessing actions undertaken and words said, before
allegations or imputations are made which can have the effect of undermining
another practitioner’s reputation for integrity. Defendant’s counsel failed to
exercise that care. The allegation of serious misconduct in the context in
which it was made and relied on in this proceeding by the defendant was not
well-founded and the obvious steps were not taken to determine whether such an
allegation did have any foundation.

[61]        
This is clearly a case where the plaintiff’s solicitors are on a “frolic
of their own:”  that is, the conduct complained of is not attributable to the
plaintiff but, rather, to her counsel.

[62]        
For the foregoing reasons I am of the view it would be appropriate to
require plaintiff’s counsel – and not the plaintiff – to pay special costs to the
defendants on all matters arising from the allegations made that the
defendant’s counsel engaged in improper conduct in the presenting of the
defendant’s case.  However this is not a practical resolution in this case.

[63]        
The evidence relating to the allegations that the defendants sought to
mislead the Court is intertwined with the evidence of the accident
reconstruction experts.  I have already ordered that the defendants bear both
their own costs and those of the plaintiff in respect of the accident
reconstruction experts’ reports, preparing the experts’ evidence, the experts’
evidence at trial, and any items relating to these costs.

[64]        
I therefore exercise my discretion under Rule 14-1(33) to make an appropriate
order for costs against plaintiff’s counsel.  That Rule provides:

14-1(33)          If the court considers that a party’s
lawyer has caused costs to be incurred without reasonable cause, or has caused
costs to be wasted through delay, neglect or some other fault, the court may do
any one or more of the following:

…

(d) make any other order that the court considers will
further the object of these Supreme Court Civil Rules.

[65]        
The objects of the Supreme Court Civil Rules appear under Rule 1-3:

1-3(1)  The object of these
Supreme Court Civil Rules is to secure the just, speedy and inexpensive
determination of every proceeding on its merits.

[66]        
Plaintiff’s counsel has caused unnecessary costs to be incurred by
making reprehensible and unfounded allegations against defence counsel.  I
consider that a costs award against plaintiff’s counsel in the amount of $1,500
will serve the interests of justice in this case by acting to remind counsel
such behaviour is not acceptable.

“GREYELL J.”