Today I want to talk about the awarding of costs for the successful self-represented litigant. As I have blogged earlier (click here to view the blog ), the successful party at a hearing is presumed to be entitled to costs against the unsuccessful party. This is found under both Rules of Civil Procedure and Family Law Rules in Ontario.
Let’s suppose that in a proceeding, party A is represented by a lawyer and party B is self-represented.
If party A is successful in the end, the court may order party B to pay costs on a party-to-party basis or solicitor-client basis. The lawyer for A will make submissions on the accounts and the judge will likely fix an amount that he or she thinks appropriate. The amount awarded will be based largely on amount of time the lawyer has spent on the file, as well as the circumstances of the litigation.
But what if party B is successful at the hearing?
Given that party B is unrepresented by a lawyer, B has not incurred expenses for legal advice. However, in modern common law in Ontario, there is a consensus that a successful unrepresented party may be awarded costs. The amount that may be awarded is subject to the court’s discretion.
Successful self-represented parties, given that they are not lawyers, are generally allowed to recover disbursement costs at the minimum. These include court filing fees, fax expenses, photocopying expenses, process server fees, and other reasonable expenses.
Compensation for the litigant’s time spent on the cases is more controversial. The courts have ruled that generally self-represented litigants are not entitled to costs calculated on the same basis as those who retain counsel because “all litigants suffer a loss of time through the legal process.”
The self-represented litigants should not recover costs for the time and effort that other litigants, with the assistance of counsel, would ordinarily devote to the case. For example, the litigant should not be compensated for time spent in the court-room while waiting for the hearings because all litigants are required to do so.
At the same time, self-represented litigants should be allowed to recover costs for the time spent on preparing and presenting the cases, legal research, document drafting, etc. The costs are then calculated as lost wages of the litigants. For instance, an electrician will be entitled to compensation of $35 to $70 per hour, while a fast-food worker will be entitled to $10 per hour.
Perhaps this serves as an incentive for prospective self-representing litigants to find a better paying job before the case starts?
