Special Costs in the Interests of Justice Upheld on Appeal

Today the British Columbia Court of Appeal upheld the trial judge’s award of special costs to the plaintiff in the interests of justice, after she succeeded in her disability insurance claim. In so doing, the Court emphasized the importance of facilitating access to justice as a policy objective of the law. The Court also recognized the role of pro bono or “low-bono” lawyers in not only public interest litigation but also private litigation.

 Justice Dickson, for the Court, held:

 In my view, the law of costs has evolved to the point that a judge may consider a litigant’s challenging personal and financial circumstances, including the availability and nature of counsel’s services, in a disability insurance claim of this sort where there is an evidentiary basis for doing so and, if the interests of justice warrant it, may depart from ordinary costs rules and award special costs in the absence of reprehensible conduct.  The factors in question are linked to the exceptional nature of such a claim and, therefore, the usual costs principle favouring partial indemnity in ordinary litigation may not be applicable.  On the other hand, consideration of these factors in such cases enhances the policy objective of ensuring access to justice for disadvantaged litigants by, for example, encouraging more lawyers to act on deserving but otherwise unremunerative disability insurance claims.

 Joseph J. Arvay, Q.C. and Kate Phipps represented the plaintiff on appeal.

 The decision can be found here.