“The law on costs claimed by a self-represented litigant is set out in detail in Izyuk v. Bilousov, 2011 ONSC 7476, [2011] O.J. No. 5814. In it, Justice Pazaratz followed Price J.’s decisions in Jahn-Cartwright v. Cartwright, 2010 ONSC 2263, [2010] O.J. No. 3307, and Cassidy v. Cassidy, 2011 ONSC 791, [2011] O.J. No. 1053.
The following principles are taken from these aforementioned cases:
• The Court of Appeal [in Fong v. Chan, 1999 CanLII 2052 (ON CA), 1999 O.J. 4600 (Ont. C.A.)] confirmed a self-represented litigant’s entitlement to costs.
• Self-represented litigants are not entitled to costs calculated on the same basis as litigants who retain counsel.
• The self-represented litigant should not recover costs for the time and effort that any litigant would have to devote to the case.
• Costs should only be awarded to those lay litigants who can demonstrate they devoted time and effort to do the work ordinarily done by a lawyer retained to conduct the litigation.
• A party with counsel, opposite an unrepresented litigant, should not perceive that they are immune from a costs award merely because such opposite party is unrepresented. They should be discouraged from presuming they will face only nominal costs.
• The right of a self-represented litigant to recover costs is not automatic. Quantification of those costs may be difficult. But without the option of awarding meaningful costs to self-represented litigants, the court’s ability to encourage settlements and discourage inappropriate behaviour will be greatly diminished.
• Determination of costs for self-represented litigants should take into account all of the objectives which costs orders should promote. Rules 18 and 24 of the [FLR] apply. Otherwise the resulting amount can render the entitlement to costs illusory; undermine access to justice by self-represented litigants; and frustrate the administration of justice.
• If a self-represented litigant, in performing the tasks that would normally have been performed by a lawyer, lost the opportunity to earn income elsewhere, this may be a relevant factor. But costs for self-represented parties are not the same as damages for lost income. Remunerative loss is not a “condition precedent” to an award of costs.
• To require proof of lost income would disqualify litigants who are homemakers, retirees, students, unemployed, unemployable, and disabled; and deprive courts of a tool required re administration of justice.
• Lost income may be one measure. But even if no income was lost, the self-represented party’s allocation of time spent working on the case may still represent value. The fact that a self-represented litigant is not a lawyer who charges a standard and commonly accepted hourly rate makes it more difficult—but not impossible—to assess their costs. However, the difficulty in valuing the time and effort of the lay litigant is not a good reason to decline to value it.
• An “applicable hourly rate” should be taken into account when quantifying even a self-represented lay litigant’s costs. But the appropriate hourly rate, once determined, is only one of several factors to be considered.
• In considering the appropriate hourly rate, the court should consider what the lay litigant’s reasonable expectations were as to the costs he or she would pay if unsuccessful.
• Where one party is represented by a lawyer and the other is not, the hourly rate that the represented litigant’s lawyer is entitled to claim on an assessment of costs should inform the reasonable expectations of both parties as to the costs that they will likely be required to pay if unsuccessful. Otherwise, litigants represented by lawyers would be less circumspect with regard to their conduct and their response to the opposing party’s efforts to settle because that party is a self-represented litigant.
• The hourly rate of the lawyer representing the unsuccessful party is only one of several factors to be considered. It does not necessarily entitle the successful self-represented party to claim the same rate for time spent.
• As with counsel, the appropriate hourly rate may be affected by the level of indemnification or recovery deemed to be appropriate, given all of the [FLR’s] Rule 18 and 24 considerations.
• There are no automatic calculations. We should not simply use the hourly rate for the opposing lawyer, or the hourly rate the self-represented litigant earns outside of court.
• The quality of the self-represented litigant’s work and documentation must be considered, and its impact on hearing time and trial results. The emphasis must be on the value of the work done. This encompasses both the value of the work to the Court and the value of the time spent to the litigant who performed the work, or who hired a lawyer to perform it.
• Calculating the amount of time the self-represented litigant should be compensated for can be a complex endeavour. All litigants suffer a loss of time through their involvement in the legal process. A self-represented litigant should not recover costs for the time and effort any litigant would have to devote to the case, including attendances in court where the party would ordinarily attend.
• But if the self-represented litigant demonstrates he/she did the work ordinarily done by a lawyer, then they will have justified receiving an award of costs—including time spent on communications, drafting documents and correspondence, preparation and compensation for time spent arguing their case.
• Self-represented litigants may be held to the standards of civility expected of lawyers and a proper reprimand for failure to do so is an award of costs on a substantial indemnity basis. Where either a litigant or his/her lawyer acts unreasonably, by incivility or otherwise, it is a factor that may result in discounting the costs that should otherwise be awarded. This discounting is a necessary part of quantifying costs and is consistent with the overall purpose of costs awards in improving the efficiency of the administration of justice.”