Legal Representatives as Parties

IPC Investment Corporation v. Sawaged, 2011 ONSC 8302 (CanLII)

[17] In Fong v. Chang (1999), 1999 CanLII 2052 (ON CA), 46 O.R. (3d) 330 (C.A.), the Court addressed this issue in the context of self-represented lawyers as parties to litigation. Writing for the Court, Sharpe J.A. traced the case law, starting with London Scottish Benefits Society v. Chorley (1884), 13 Q.B.D. 872, recognizing the entitlement of self-represented litigants to costs. Turning to the business of calculating that entitlement in appropriate cases, Sharpe J.A. wrote at pp. 339-340:

I would also add that self-represented litigants, be they legally trained or not, are not entitled to costs calculated on the same basis as those of the litigant who retains counsel. As the Chorley case, supra, recognized, all litigants suffer a loss of time through their involvement in the legal process. 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 that they devoted time and effort to do the work ordinarily done by a lawyer retained to conduct the litigation and that, as a result, they incurred an opportunity cost by forgoing remunerative activity. As the early Chancery rule recognized, a self-represented lay litigant should receive only a "moderate" or "reasonable" allowance for the loss of time devoted to preparing and presenting the case. This excludes routine awards on a per diem basis to litigants who would ordinarily be in attendance at court in any event. The trial judge is particularly well-placed to assess the appropriate allowance, if any, for a self-represented litigant, and accordingly, the trial judge should either fix the costs when making such an award or provide clear guidelines to the Assessment Officer as to the manner in which the costs are to be assessed.

As discussed below, it is my view that Mr. Sawaged should be entitled to some costs in the main action, but not in relation to the time he spent preparing and litigating this case.

R. v. C.R.G., 2005 CanLII 32192 (ON CA)

[8] One other minor complication should also be mentioned. Because the respondent was a Hamilton police officer, it was [page312] necessary to take special steps to ensure the appearance of fairness to the parties. Thus, the case was assigned to an assistant Crown Attorney from another jurisdiction and the preliminary inquiry judge, Ledressay J., and the trial judge were from other jurisdictions.

[17] In Morin at pp. 794-95 S.C.R., p. 18 C.C.C., Sopinka J. held that institutional delay "starts to run when the parties are ready for trial but the system cannot accommodate them". He pointed out that, in Askov, the court was dealing with a delay of two years subsequent to committal for trial, all of which was institutional or systemic delay. Cory J.'s comment in Askov that a delay beyond six to eight months between committal and trial was unreasonable had to be read in that context. At pp. 798-99 S.C.R., p. 21 C.C.C. of Morin, Sopinka J. made it clear that this six- to eight-month guideline referred only to institutional or systemic delay:

In Askov, Cory J., after reviewing comparative statistics, suggested that a period in the range of 6 to 8 months between committal and trial would not [page316] be unreasonable. Based on the foregoing, it is appropriate for this Court to suggest a period of institutional delay of between eight and 10 months as a guide to Provincial Courts. With respect to institutional delay after committal for trial, I would not depart from the range of 6 to 8 months that was suggested in Askov. In such a case this institutional delay would be in addition to the delay prior to committal. This reflects the fact that after committal the system must cope with a different court with its special resource problems. It is therefore essential to take into account the inevitability of this additional institutional delay.

(Emphasis added)