Background
The appellants, Xiong Guang Chen and Jue Ming Chen, had previously lost an appeal against the Director of Civil Forfeiture (indexed as 2026 BCCA 244). Following the dismissal of their appeal, the respondent sought an order for costs. The appellants, however, refused to approve the order, arguing they should either pay limited costs or no costs at all, based on various justifications. This costs dispute was then referred to the Court of Appeal division by the Registrar, as determining entitlement to costs fell outside the Registrar’s jurisdiction.
The general rule in British Columbia is that the successful party in an appeal is entitled to recover their costs. The Court of Appeal retains discretion to depart from this rule, but only if there is a principled basis to do so. The appellants presented four main arguments in an attempt to invoke this discretion and avoid the standard costs award.
The Court’s Holding
The Court of Appeal for British Columbia ultimately held that the respondent, the Director of Civil Forfeiture, was entitled to costs on the ordinary scale, dismissing the appellants’ application for limited or no costs. The Court found that none of the justifications presented by the appellants warranted a departure from the usual rule.
The appellants’ arguments included claims of frailty, elderly age, and non-English speaking status, exacerbated by facing the state in a civil forfeiture claim without counsel. However, the Court distinguished their situation from precedent, noting the lack of evidence demonstrating hardship comparable to cases where costs were limited. It also affirmed that mere impecuniosity is insufficient to alter the usual costs rule. Furthermore, the appellants argued institutional asymmetry with the government and cited the respondent’s alleged failure to provide financial records and new evidence regarding their son’s involvement in mediation as reasons for their appeal. The Court dismissed these, stating there was no legal authority for the asymmetry claim, and the “new evidence” had already been rejected in the underlying appeal for lack of due diligence and relevance.
In concluding, the Court reiterated that the appellants’ decision to pursue an appeal, particularly one deemed “unnecessary and unfounded” by the respondent, did not present a compelling basis for deviating from the standard cost award. Consequently, the respondent was granted costs for both the original appeal and the costs application.
Key Takeaways
- Canadian courts generally adhere to the “loser pays” principle, meaning the successful party in an appeal is entitled to recover their costs.
- Departures from the standard costs rule are rare and require a “principled basis”; mere claims of personal hardship or impecuniosity are usually insufficient without exceptional circumstances.
- Arguments previously deemed irrelevant or inadmissible during the main appeal cannot typically be resurrected to justify limiting costs.
- The perceived imbalance between a governmental litigant and an individual does not, by itself, justify an exception to the usual costs rule without established legal authority.
Why It Matters
This decision reinforces the predictability and enforceability of cost awards in the British Columbia Court of Appeal, providing clarity for both litigants and legal practitioners. It serves as a reminder that pursuing an appeal carries financial risks, and courts are reluctant to waive or limit costs for unsuccessful parties unless there are truly extraordinary and principled reasons to do so.
For attorneys advising clients, this case underscores the importance of carefully assessing the merits and potential costs consequences of an appeal. It clarifies the high bar for overcoming the presumption that the unsuccessful party will bear the costs, particularly when arguments rely on personal circumstances or information that was available through due diligence.