In this ICBC injury confidential documents case ( Jampolsky v. Shattler, 2011 BCSC 1327) the injury claimant’s lawyer sought a declaration that  various individuals engaged by, or in the employ of, ICBC, as well as ICBC, were in contempt of court.  Those persons included the personal injury lawyer  appointed by ICBC, an associate lawyer, the commissioner who took the oath for an affidavit used in support of the motion brought by the defendants, an ICBC adjuster, and the CEO and president of ICBC .
Costs, a contribution toward a litigants legal fees,  generally are awarded to the successful party and as the judges stated, “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 expenses incurred by being forced to do so by the unsuccessful party. ”
Rule 14-1(9) of the Rules of Court provides:
Costs to follow event
(9)      Subject to subrule (12), costs of a proceeding must be awarded to the successful party unless the court otherwise orders.
In Courts’ view, the claimants lawyer should not be awarded any costs arising from the application, special or otherwise.  The Judge stated starting at para 23:

“I disagree with counsel for Mr. Harding that the contempt respondents proceeded with their application recklessly or with no evidence to support the argument that Mr. Harding was “on a frolic of his own”.  Despite my finding that Mr. Harding could not be held personally responsible for costs because I found I could not intrude on solicitor-client privilege, it is important to keep the nature of the contempt applications in perspective.

The applications arose in two actions commenced by two unrelated plaintiffs claiming damages in two separate motor vehicle accidents.  The common thread in the actions was that Mr. Harding represented each plaintiff.  Even if he was acting on the instructions of his clients, Mr. Harding was clearly the architect and strategist behind the bringing of the motions.  The event that caused Mr. Harding to initiate contempt proceedings on behalf of both clients was ICBC’s motion on behalf of the defendants in each action for the production of documents in the hands of a number of third parties.  The plaintiffs’ complaint was that ICBC, in communicating with third parties, offered to disclose what the plaintiffs asserted was certain confidential information obtained through the discovery process or produced under the former Rule 26.

…I concluded the bringing of the contempt application was heavy handed as none of the named persons had acted in a manner to “even remotely warrant the bringing of such a motion.”…In short, the motion brought by Mr. Harding on behalf of his clients was an abuse of the court’s processes, heavy handed and disreputable.  In my view, such conduct needs to be deterred.  This is a case that warrants the use of my judicial discretion to deny Mr. Harding’s application for special costs and costs, despite him being the successful party.”

This case should be instructive to personal lawyers representing claimants in car accidents, bike collisions, pedestrian accidents and the like. Simply put, personal injury lawyers need to avoid heavy handed conduct regardless of the behaviour of ICBC and the lawyers hired by ICBC. Posted by Mr. Renn A. Holness.

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