Should Self-Represented Litigants Be Entitled to Costs?
A recent family law decision applied the existing legal principles relating to the awarding of legal costs to self-represented litigants. These principles were first set out by the Court of Appeal over 15 years ago.
In short:
– a self-represented litigant does not have an automatic right to costs;
– the matter remains fully within the discretion of the trial judge;
– to be considered eligible for costs, the self-represented litigant must demonstrate that they devoted time and effort to do work ordinarily done by a lawyer retained to conduct the litigation and in doing so incurred an opportunity cost by foregoing remunerative activity;
– self-represented litigants should not recover costs for the time and effort that any litigant would have to devote to the case; and
– self-represented litigants should receive only a “moderate” or “reasonable” allowance for the loss of time devoted to preparing and presenting the case.
It has been over 15 years since the Court of Appeal set out these guidelines. Given the exponential increase of self-represented litigants since then, is it time to revisit these guidelines or do they continue to be adequate?
For a self-represented litigant to receive costs it should be a preliminary and mandatory requirement that they have all of the accessibility and service options of a lawyer, and be subject to all ethical requirements that a lawyer is subject to. They should also have to, in all cases, post security for costs.
To be frank, I hear a tremendous amount of weeping for people who aren’t able to afford lawyers. I hear none for people who are able to afford lawyers, and see their costs run up by the self-represented time wasters who are cost-invulnerable.
The Divisional Court has recently refused to expand the obligations of the trial judge vis-à-vis self-represented litigants:
Mujagic v. Kamps, 2014 ONSC 5504
http://enotes.canadalawbook.ca/OAPenotes/pdf/14281041.pdf
“[16] There is no question that a trial judge has an obligation to assist an unrepresented litigant, for example, by explaining court procedures and applicable legal principles. However, the trial judge also has an obligation to ensure that there is fairness to the other party to the proceedings. Accordingly, the trial judge must exercise discretion in determining the amount of assistance to provide the unrepresented litigant in order that the litigant receives a fair hearing, as does the other party. As the Ontario Court of Appeal stated in Davids v. Davids, [1999] O.J. No. 3930 at para. 36 and repeated again in College of Optometrists of Ontario v. SHS Optical Ltd., 2008 ONCA 685 at para. 57: `Fairness does not demand that the unrepresented litigant be able to present his case as effectively as a competent lawyer. Rather, it demands that he have a fair opportunity to present his case to the best of his ability. Nor does fairness dictate that the unrepresented litigant have a lawyer’s familiarity with procedures and forensic tactics. It does require that the trial judge treat the litigant fairly and attempt to accommodate unrepresented litigants’ unfamiliarity with the process so as to permit them to present their case. In doing so, the trial judge must, of course, respect the rights of the other party.’
…
“[29] The trial judge provided Mrs. Mujagic with considerable assistance and accommodation throughout the trial. He explained various steps in the proceedings to her, helped clarify terms, accommodated her in scheduling witnesses, gave her latitude in the presentation of testimony, and allowed her extra time to prepare her closing argument.”
Even that level of help often frustrates the clients who are paying their lawyers to do exactly that work for them. They see it as the Court providing free help for something they had to lay out money for.
The tone of David Sanders comments give the impression that self-represented litigant are a lower class of people. The lack of weeping over fully represented litigants is most likely the result of their having lawyers to do their worrying for them.
I am certain that “self-represented time wasters” end up wasting the valuable time of those who charge by the hour due to “their lack of familiarity with procedures and forensic tactics.”
Not to mention the time wasted due to their not being “able to present [their] case as effectively as a competent lawyer.”
Doctors and lawyers are often lumped into the same social class of people, yet we would never demand that those who can’t afford proper medical care perform their own triple bypass.
If Mr. Sanders was forced to perform his own vasectomy he would no doubt be grateful to those weeping over those who cannot afford skilled surgeons. With a gavel in one hand and a scalpel in the other, he would no doubt find himself weeping over whether to knock himself out before or after making the first cut.