Entitlement to Special Costs

In Malik v. the Law Society of British Columbia 2013 BCCA 337, a member of the Law Society who had been disciplined unsucessfully, asked for special costs against the Law Society.  The member had been involved in a Rowbotham application seeking state funding for his father's defence against criminal charges.  The judge hearing the application expressed some concerns about the member's conduct in his reasons.  These came to the Law Society's attention.  It investigated the member and a Citation was issued.  Ultimately, all of the allegations against the member were dismisssed.  They were serious in nature alleging such things as filing a false or misleading affidavit and participating in a scheme to provide false information to the Court.

The member argued that he was entitled to special costs, because the Law Society's conduct of his case had been reprehensible, and that the Law Society review panel ought to have considered the special costs regime in the Rules of Court and applied it.  These arguments were rejected on two bases.  The first was that as a matter of fact, there was no reprehensible behaviour on the part of the Law Society.  As to the argument that  the Court's regime for special costs was applicable, the Court held that since the Law Society was authorized in its legislation to regulate assessment of costs, and had done so, the Court's regime did not apply, although the Court's jurisprudence might be a helpful consideration (see Shpak v. Institute of Chartered Accountants of B.C. 2003 BCCA 149.)

 http://canlii.ca/t/fzqb1