It is very encouraging to see the judiciary awarding more than just nominal costs to self represented litigants (SRL). In a recent decision, Bergen v Sharpe 2013 CanLII 74188, Justice Price awarded the sucessful self represented litigant $12,091.85 for her costs in defending a motion. (The opposing party’s position was that the SRL should only be awarded $750.)
The court underwent a thorough analysis of the principles behind costs. Justice Price did not dismiss the time a self represented litigant spent on preparing for her case:
Where a self-represented litigant presents his/her case as well as a lawyer would be expected to do, and in the time that such a case normally requires, it is unfair to penalize the litigant by discounting his/her time because it is not recorded in a costs outline which only a lawyer can certify. Self-represented litigants face greater demands, doing the work of a lawyer in their case, than they face in their employment outside of court. This must be recognized and reflected in the way their time is valued.
The court is clearly aware of the rising numbers of SRL’s, and suggests changes to the Rules. At para. 81, the court noted that:
In an environment where a substantial proportion of litigants do not or cannot retain lawyers to represent them, access to justice demands that the court modify its Rules to eliminate the image of lawyers as gatekeepers of the courts. The rules should accommodate self-represented litigants who wish to consult lawyers as helpers and advisors but not as representatives and advocates.
However, one must always remember that costs are based on a number of factors. The court also held that failure to make reasonable efforts to settle and making excessive claims in time spent on a case may reduce the costs awarded. (para. 73)