COSTS TO THE SELF-REPRESENTED PARTY

AWARDING COSTS TO THE SELF-REPRESENTED PARTY: By Michael Thiele

If a person goes to Court as a self-represented party, either as a defendant or plaintiff, is that person entitled to receive costs if they are successful on the motion or trial? This question is often raised by self-represented persons who are taking the time to act as their own lawyer. For many different reasons, but usually because of the high cost of hiring a lawyer, many persons are forced to represent themselves in Court. Accordingly, they spend a significant amount of time trying to do the work necessary to represent themselves.

For parties who are represented by lawyers, there is a possibility of recovering costs if they are successful in motions or at trial. Costs are discretionary, but the usual rule is that the successful party is entitled to receive costs. The costs are intended to indemnify a party for all or part of the legal fees incurred as well as the disbursements and taxes. The breadth and extent of costs being awarded is beyond the scope of this blog.

Where a person does not have a lawyer, but spends a lot of time working on their case, should they get “costs” in the same way that a party who has a lawyer gets “costs”. The argument for costs is generally that the self represented party has had to do the work that a lawyer had to do and therefore they should be compensated.

In recent years, Courts have recognized that individual self represented parties can receive costs under some circumstances. In fact, there appeared to be a trend to award “nominal” costs to self-represented litigants simply on the presumption that they should get “something” for the clear effort that must have been involved in representing themselves.

This practice of awarding nominal costs to self-represented parties is likely now a thing of the past with the decision in Mustang Investigations v. Ironside, 2010 ONSC 3444 (CanLII) (Div. Crt). In this decision, the Divisional Court reviews some of the recent cost awards to self-represented parties. In this specific case, the Court was considering a $20,000 cost award to a self-represented party and further it considered what would have been a “nominal” award of $5000 in costs to the same party that would have been awarded but for the higher cost award.

In reviewing the caselaw, including appellate authority, the Divisional Court in this case clarifies that costs awards to self-represented parties may only be granted where it is proven that the self-represented party performed the work of a lawyer and that this self-represented party as a result of performing this work also sacrificed other remunerative work---meaning the self-represented party needs to prove that they suffered an opportunity cost as a result of being self-represented.

It is significant to note, that even if a self-represented party establishes that they performed the work of a lawyer, and that they suffered the loss of remunerative work, that the Court directs that the costs awarded to that self-represented party should still be modest and moderate amount for preparing and presenting the case. The direction is clear, that a self-represented party should not have their costs calculated in that same manner as a lawyer.

As a result of this reasoning, the Divisional Court in this case, set aside the award of $20,000 to the self-represented party, and further indicated that the self represented party should not get the nominal costs of $5000.00. In fact, the self-represented party only received, as costs, its disbursements, and zero on account of the work done in representing himself.

For more detailed information see the decision in Mustang Investigations v. Ironside, 2010 ONSC 3444 (CanLII) (Div. Crt).