Scales out of balance with hand putting money on one side

A Practical Guide to Costs When Dealing With Self-Represented Litigants

  • December 18, 2016
  • Rachel Migicovsky

In 2013 Dr. Julie Macfarlane of the University of Windsor Law School released a study on the experiences of self-represented litigants in Ontario, Alberta and British Columbia. Dr. Macfarlane found that in Ontario, 64% of family law litigants were self-represented. In civil actions, a 1999 study found that self-represented litigants outnumbered represented litigants by 1.6 to 1.1 Dr. Macfarlane comments that that gap has certainly increased in the intervening period. In her sample, 53% of self-represented litigants had started their lawsuits with lawyers, but could not afford to continue. Only about 10% of her sample expressed confidence in their ability to self-represent from the outset of the litigation.

Self-represented litigants are now a major player in our court system; no matter your year of call, you will encounter them at some point during your time at the Bar.

Self-represented litigants are not familiar with the Rules. They make many requests for documents, request adjournments and deliver voluminous materials, all of which can be costly. Whether you are at the beginning of the litigation, or have won or lost a motion or at trial, you will want to consider the following when dealing with costs against or for a self-represented litigant: 

  • Who is the self-represented litigant?
  • What purpose will costs serve in your particular case?
  • The quantum and prospect of recovery if you are successful.
  • The quantum recoverable by a successful self-represented party.

Who is the self-represented litigant?

Courts have viewed self-represented litigants not as a large, amorphous group, but as individual parties with specific interests and needs. Thus, you should assess the self-represented litigant as you would any other opposing party; that is, on the basis of their actions and the merits of their case. Do not underestimate them. In Crowe v. The Manulife Financial Corporation,  Mr. Justice Brown writes that when dealing with self-represented litigants:

fixing costs in such circumstances will be an individualized process, focusing on the characteristics and conduct of the particular self-represented litigant, not measured against some abstract notion of the “typical self-represented litigant”.

Guiding Principles: The Purpose of Costs Awards

In fixing costs, the court must consider the unsuccessful party's fair and reasonable expectations of costs it should have to pay, rather than the actual costs incurred by the successful party. This means that win or lose, the court will consider your hourly rate as a guideline when considering your costs or those of the self-represented party. For example, in Jahn-Cartwright, the successful self-represented litigant was awarded costs applying an hourly rate of $200.00. This rate was approximately two-thirds of what the other side's lawyer would have been entitled to on a partial indemnity basis.

Fixing costs is an art, not a science. Other factors the court may consider include reasonableness and civility of the parties, quality of the materials, time spent preparing, proportionality, and access to justice. To this end, you should consider the following three purposes of costs identified by the Ontario Court of Appeal when dealing with a self-represented litigant as a governing principle:

  1. to indemnify successful litigants for the cost of litigation;
  2. to encourage settlement; and
  3. to discourage and sanction inappropriate behaviour by litigants.

Consider Making an Offer

Offers to settle can place your client in a better position at trial, even when your opponent is self-represented. In Awad v. Dover Investments Limited,  Mr. Justice McEwen awarded partial indemnity costs to the respondents following a four week trial based on their offer to settle to the self-represented litigant, even though he concluded that they did not beat their offer. He determined that the respondents "created a potential for settlement" with respect to certain issues and that the applicant did not respond.

Remember also that rule 3.2-4 of the Rules of Professional Conduct states: "A lawyer shall advise and encourage the client to compromise or settle a dispute whenever it is possible to do so on a reasonable basis."   This direction applies, whether the opponent is represented or not. If your client has the possibility to settle with a self-represented litigant, you should encourage them to make some effort to do so.

You Won?!: How to Get a Cost Award Against a Self-Represented Litigant

You had a lengthy motion or trial against a self-represented litigant. You had to attend scheduling court several times, as they requested it due to difficulties combining their full-time job with their full-time litigation. You had trouble serving them or reaching them by phone or email. They obtained several adjournments of the final hearing. All of these factors drove up your client’s costs (including copious disbursements to paper the record), and caused you in some cases a great deal of consternation. Now that you have succeeded, you hope to recoup some of these costs for your client.

How do you do it?

First, focus on the factors set out in Rule 57, and ensure your materials are succinct and comprehensive. In Crowe, Justice Brown wrote that courts must particularly consider the reasonable expectations of the unsuccessful party, the conduct of the party, and whether any steps were improper, vexatious or unnecessary when dealing with a self-represented litigant. Make sure that you detail for the judge hearing your costs submissions the myriad steps your client was required to take during the litigation. Both in written submissions and in oral submissions, if you are required to make them, ensure that you set out (either in a timeline or otherwise) facts to support your request for costs, but do so fairly and with acknowledgement of your contribution to greater costs.

In Crowe, the self-represented party had failed to satisfy costs awards against him in eight related proceedings, over a six-year period. The self-represented litigant was unsuccessful in resisting an expensive motion by several parties. His Honour agreed that successful parties should be awarded costs. However, he decided that one party’s materials were too poorly organized for him fix a reasonable amount and referred those costs for assessment. He awarded substantial indemnity costs to another party, incurred as a result of three unnecessary attendances in court. Justice Brown commented that the self-represented litigant had become very familiar with court procedures and was using them to his advantage as it suited him, without regard for his obligation to conduct himself with civility. In this respect, don’t forget who your opponent is when setting out your costs argument: if your self-represented litigant is sophisticated or has significant experience in the legal system, make sure to highlight this for the court.

You Lost (What?!): Now What?

It is counter-intuitive but true: self-represented litigants in Ontario are entitled to costs, at the court’s discretion.  Self-represented litigants are not, however, entitled to costs calculated on the same basis as parties with counsel. Self-represented litigants must be able to show that they put in time and effort to do the work typically done by a lawyer and that they suffered an opportunity cost as a result. If they have evidence of opportunity cost, they should only receive a moderate or reasonable allowance for the loss of time.13

What does this mean for you? Provide costs submissions, even if you are unsuccessful. Do not rest on your laurels; the court will not resist awarding costs against your client. Point out areas of the litigation in which your client’s reasonable efforts to settle or resolve issues were unsuccessful. Point out deficiencies in the self-represented litigant’s costs submissions, if any, based on who they are and not based on “self-represented litigants” writ large. Be professional and kind, but be sure to set out factors that will assist to reduce the costs awarded against your client.

Will You Collect?

Perhaps it goes without saying, but a self-represented litigant who cannot afford a lawyer is also unlikely to be able to pay a substantial costs award and there is a good chance you will not be able to collect. If you are representing a client suing a self-represented litigant, this is an important discussion to have at the outset of your retainer. If you are representing a successful defendant against a self-represented litigant, you should discuss the amount of time and effort your client wants you to put into pursuing the litigant for payment.

Depending on the circumstances, for example, where the self-represented has failed to pay costs awards in the past, or failed to take necessary procedural steps ordered by the court, you may also want to consider bringing a motion for security for costs

Further, many judges will order costs 'in the cause' (i.e.: only if you win at trial) against self-represented litigants. The courts are reluctant to make adverse costs awards against impecunious self-represented litigants to ensure that they are not denied their day in court only because they could not pay a cost award.   

In the End, It's All About Proportionality

The number of self-represented litigants in the legal system continues to grow. If you haven't yet dealt with a self-represented litigant, you will. When you do, costs shouldn't be an afterthought: it is a problem you will need to consider from the start. The Attorney General has taken some steps to assist self-represented litigants in managing the litigation, such as online filing in certain Small Claims Court jurisdictions. However, as the lawyer on the file, it will fall to you to make sure (to the best that you can) that the litigation progresses efficiently and does not get derailed.

Make sure you are acting with proportionality in minddon't bring unnecessary expensive procedural motions or insist on strict compliance with the Rules where it will be expensive and onerous for your client and the self-represented litigant to do so: for example: it may be appropriate in the circumstances to accept late service of motion materials if won't hurt your legal position. It may make sense accept an unsworn brief of documents rather than an affidavit of documents if you can get one sworn later and you have no concerns about authenticity, rather than bringing a motion to get one. Paper your correspondence but don't use complicated legal jargon when you can speak plainly.

These suggestions may not always be appropriate. The point is to look at all of the circumstances and make a proportional, pragmatic decision in the case at hand.

Overall, make sure each step you take is intended to advance the litigation. You will better represent your client – and there is a better chance that the court will reward you – if you don't pursue form over substance. 

About the Author

Rachel Migicovsky is a litigation lawyer at Shibley Righton LLP. Her main area of practice is professional negligence. She attended Osgoode Hall from 2009 – 2012 was called to the bar in 2013. Rachel serves on the executive committees of the Ontario Bar Association's Civil Litigation section and Women Lawyers' Forum.


1  J. McFarlane, The National Self-Represented Litigants Project: Identifying and Meeting the Needs of Self Represented Litigants (May, 2013: LSUC), citing L. Hartwell, “A Profile of the Self-Represented Litigant: Highlights of Some of the Relevant Research” (paper presented to the ACCA Symposium in Winnipeg, April 19 2001 [unpublished].

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