ICYMI, a recent case in PEI has altered the law around costs for self-represented litigants who are not successful in court. Costs are awards of money that are made against a person who loses their case to essentially reimburse the other side for the expense of hiring a lawyer to argue their case. If you are a self-represented litigant in a civil case in PEI, these changes may be applicable to you and could impact the costs you may be awarded or may have to pay to the other side.
In the case of Grafton Management Inc v. Charlottetown, a self-represented litigant who won his case at trial was awarded $2000 to be paid to him by the other party. The self-represented litigant had originally asked for $10,734.30 in costs representing the 42 hours of lost work time that he used to prepare his case. As he was unhappy with the $2000 in costs he was awarded he appealed the decision to the PEI Court of Appeal.
While the Court of Appeal denied his appeal for more costs, it did take the opportunity to update the law in PEI around costs for self-represented litigants in civil cases.
In PEI it used to be that the only time a self-represented litigant could get costs is if they brought evidence to show all the time they missed at work to back up their request for costs. While the Court of Appeal said that SRLs can still bring this evidence, this is not the only way to ask for costs. Instead, the Court of Appeal held that SRLs can ask to be reimbursed for any time they spend (i.e., not just lost work time) working on their case.
However, SRLs cannot ask for money to reimburse them for time they spent on their case that any client would spend. They can only ask for money for time that a lawyer would spend on their case: “If costs are awarded to a self-represented litigant, they should relate to work done by the litigant himself or herself that would otherwise been done by a lawyer”. In other words, the SRL can ask for money to do work on their file that a lawyer would do.
The judge gave the following example:
“Self-represented litigants are to be compensated only for work done by self-represented litigants over and above the normal involvement of a client … Drafting an affidavit, for example, will typically involve the client providing factual information which involves client time, and the lawyer drafting the affidavit, lawyer time, and reviewing it with the client. Thus, there is time which is strictly client time, time which is strictly lawyer time, and time which involves both lawyer and client.”
The Court of Appeal judge laid out the following guidelines for assessing costs for SRLs:
- Costs are in the discretion of the judge, who should be mindful for the purposes of awarding costs, including:
- Compensation for successful litigants
- Encouraging settlements
- Discouraging and sanctioning inappropriate behaviour
- Facilitating access to justice
- Discouraging frivolous claims and defences
- Lost opportunity may be a factor in awarding costs but is not a pre-condition (i.e., even if you don’t bring evidence of your lost time at work you may still be compensated)
- SRLs shouldn’t be compensated for the normal time and effort that comes from simply being a litigant.
- SRLs are not entitled to costs on the same basis as litigants who retain counsel.
- The amount of costs awarded should be based on the circumstances of the case, including its complexity, the quality and amount of work, its significance and the reasonableness of the SRL’s position and conduct.
It is important to be prepared and keep these guidelines in mind if/when seeking cost awards. Ultimately, it must be remembered that how much you get for a cost award will be up to the judge deciding the case.
In any event, when you are an SRL it will be helpful to keep track of the time you spend on your case so you can present this to the judge to ask for costs if you win your case.