In Dunn v. Heise, 2021 BCSC 2215, the plaintiff was awarded more than $800,000 in damages after being injured in a motor vehicle accident. Following the trial, the parties returned before the trial judge to resolve the issue of court costs. As we’ve discussed before, costs are an amount of money awarded to the successful litigant to help off-set their legal fees.
At the costs hearing, the plaintiff first sought double costs from ICBC. This was because he had offered to accept less money than what the judge ultimately awarded. As ICBC could have resolved the case for less than what the judge awarded, the court penalized ICBC by awarding double costs against them.
The more interesting aspect of the costs hearing was the plaintiff’s application for further increased costs. Specifically, the plaintiff argued that increased costs were warranted because ICBC forced him to go to trial in the middle of a pandemic. The plaintiff argued that this was particularly egregious given his fragile mental health issues and the extensive efforts he had expended to try to resolve the case.
The court found the plaintiff’s arguments compelling. ICBC had admitted that their insured had caused the accident. They had no expert reports of their own. They knew of the plaintiff was emotionally fragile and had made two suicide attempts. While ICBC’s actions did not amount to misconduct, forcing such an emotionally compromised individual to trial in the middle of a global pandemic qualified as an unusual circumstance thus meeting the first part of the test for increased costs.
The court then considered whether those unusual circumstances were enough to make a regular costs award inadequate or unjust. On this measure, the court found that any increased expenses associated with running the trial would be paid as disbursements. Increased costs beyond those already awarded to the plaintiff were not warranted.