Special costs are reserved for cases of egregious conduct in litigation: court
The BC Supreme Court recently ruled on the costs associated with a dismissed sexual harassment lawsuit, declining to award special costs to the defendant.
The dispute in Hartley v Durante, 2024 BCSC 1006 involved allegations from the plaintiff against a managerial employee of a company where both parties worked. The plaintiff alleged that the manager engaged in sexual assault, harassment, and threatening behaviour during a work-sponsored event in 2010. The former corporate defendants were no longer part of the lawsuit by the time of the ruling.
In May 2022, the corporate defendants requested a determination from the Workers' Compensation Appeal Tribunal (WCAT) on whether the allegations fell under its jurisdiction. WCAT decided that it had jurisdiction over the claims. Subsequently, the manager applied to dismiss the lawsuit, which the court granted.
The manager sought special costs, arguing that the plaintiff had misled the court by withholding critical emails in her affidavit, which suggested that her grievance process with the union was ongoing. These emails, discovered later, contradicted her claims that the grievance had been abandoned, justifying her pursuit of a civil action.
The plaintiff opposed the application for special costs, stating that she inadvertently failed to disclose all relevant documents and never intended to mislead the court. She explained that she misunderstood the intersection of the union grievance process and the civil litigation procedures.
The court found that the plaintiff's conduct did not meet the standard for "reprehensible" behaviour necessary to award special costs. The judge noted that the action was dismissed based on jurisdictional grounds rather than the merits of the plaintiff's claims. The court also considered the complexities of navigating the procedures under workers’ compensation, collective agreements, and civil litigation.
Furthermore, the Supreme Court dismissed the manager’s claim that the allegations in the notice of civil claim were scandalous and reckless. The judge pointed out that the serious allegations had not been proven false since there was no trial on the merits.
Ultimately, the court ruled that the manager was entitled to regular costs for the action's dismissal but not special costs. The court emphasized that special costs are reserved for cases where conduct during litigation is particularly egregious, which was not demonstrated in this case.
Ultimately, the court underscored the importance of clear and complete disclosure in legal proceedings and clarified the high threshold required for awarding special costs in litigation.
