When Are Self-Represented Litigants Entitled to Costs?
The Ontario Superior Court of Justice (Divisional Court) recently pronounced on the circumstances in which self-represented litigants are entitled to costs. In Mustang Investigations v. Ironside, the Court considered an appeal of a costs Order in favour of the self-represented Defendant after the Plaintiff discontinued its claim.
The starting point for the Court's analysis was Fong v. Chang, a 1999 decision of the Court of Appeal. In that case, Justice Sharpe noted that "to receive costs the self-represented litigant must show that the work done by him or her resulted in a loss by foregoing remunerative activity." It was not sufficient to simply show that the self-represented litigant did the work ordinarily done by a lawyer in order to justify a costs award.
Moreover, "if an opportunity cost is proved a self-represented litigant should only receive a moderate or reasonable allowance for the loss of time devoted to preparing and presenting the case."
The Court therefore found that "the motions judge in this case erred by ignoring the proviso regarding an opportunity cost and, further, awarding the self-represented litigant the partial indemnity costs that the plaintiff could reasonably be expected to have paid to a lawyer had one been retained by Ironside."
The Court concluded with this interesting observation: "A question of whether self-represented litigants without legal training should be compensated for performing work normally done by a lawyer at rates for legally trained persons, be they senior lawyers, junior lawyers, or law students, will have serious and far reaching consequences. It is a matter which, in my opinion, is better considered by the Legislature on the advice and with the input of the Rules Committee, than by the courts."
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