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.