Cost
Cost Orders In Favor Of Self-Represented Litigants
1.
In McNichol v. Co-operators General Insurance Company, Drapeau C.J.
addresses orders for costs in favor of self-represented litigants, stating:
[43]. . . Rule
59.01, however, makes it clear that costs are in the discretion of the trial
court who can determine by whom and to what extent costs shall be paid and that
such costs can be fixed with or without reference to a tariff. In addition,
there appears to be a modern trend regarding the granting of costs to
unrepresented lay litigants.
McNichol
v. Co-operators General Insurance Company, 2006 NBCA 54
(CanLII), at paras. 41 to 45
2.
The Intended Appellant offers
that after due consideration, this Honorable Court may conclude similarly as in
McNichol, supra, that the case before it is one that calls for the exercise
of this Honorable Court’s discretion under Rule 59.01 in a manner favorable to
a lay litigant; therefore this Honorable Court may find it appropriate to order
the Respondents to pay costs, which may be similarly fixed at $5,000, in
addition to all reasonable disbursements.
3.
In Fong, et al. v. Chan, et al., 46 OR (3d) 330 (CanLII), paragraphs 15 to 27,
Sharpe J.A stated the opinion of the Court regarding the right of
self-represented lay litigants to recover costs.
4.
As similarly stated in Fong, et al. v. Chan, et al., 46 OR (3d) 330 (CanLII) “Costs should only be
awarded to those lay litigants who can demonstrate that they devoted time and
effort to work ordinarily done by a lawyer retained for litigation, and that as
a result, self represented litigants incurred an ‘opportunity cost’ by
foregoing remunerative activity” such as the Intended Appellant before this
Honourable Court. It is abundantly clear
that the Applicant devoted much time to present thought-provoking legal
arguments ordinarily submitted by an attorney, further is evidenced by the
quality of the material presented for consideration by this Honorable Court.
5.
Also stated in Fong, et al. v. Chan, et al., 46 OR (3d) 330 (CanLII), three purposes are
fostered by allowing the trial judge discretion to award costs to
self-represented litigants:
“modern cost
rules are designed to foster three fundamental purposes: (1) to indemnify
successful litigants for the cost of litigation; (2) to encourage settlements;
and (3) to discourage and sanction inappropriate behaviour by litigants.”
Fong, supra, at para. 22
6.
As is well established by the
Courts, lay litigants may recover costs, including counsel fees. This is a clear trend of both the common law
and the statutory law, to allow for recovery of costs by self-represented
litigants.
7.
Costs may be awarded to those
lay litigants who can demonstrate devoted time and effort, which would
ordinarily have been done by a lawyer retained for same litigation. Further, it is consistent when lay litigants incurred
an ‘opportunity cost’ by foregoing their usual remunerative activity;
therefore, awarding of additional costs is a useful tool of the Court to
encourage settlements and/or to discourage or sanction inappropriate behavior,
as the case may be.
8.
In consideration for costs of a proceeding, the Intended
Appellant would like this
Honourable Court to consider granting costs in favor of the Intended Appellant because of the
importance of the issues.
9.
In Lang v. Tran, Cavarzan J. addressed the
following regarding “importance of the issues”:
With respect to the factor
involving the importance of the issues, I note that the rule does not refer to
the importance of the issues “to the parties”. No doubt, when matters require
resolution by proceeding to trial the issues are important to the parties. In
my view, however, “importance of the issues” comprehends matters of general
importance affecting the rights of society at large, . . .
Lang v. Tran, 2006 CanLII 32627 (ON SC), at para. 11
10. (Your issue here) which may
be cured by the Intended Appellant / Applicant’s
actions, should qualify as an important issue.
11.
Black's Law Dictionary defines frivolous
as:
frivolous, adj. Lacking a legal basis or legal merit; not serious; not
reasonably purposeful
Garner, Bryan A. and Braum A. Garner, Black's Law Dictionary, 8th ed., “frivolous.” (Thomson/West, 2004) at p. 1969
12.
Black's Law Dictionary defines vexatious
as:
vexatious, adj. (Of conduct) without reasonable or probable cause or excuse;
harassing; annoying.
Garner, Bryan A. and Braum A. Garner,
Black's Law Dictionary, 8th ed., “vexatious.” (Thomson/West, 2004) at p. 4842
13.
The Intended Appellant believes
that the conduct of the Respondents in their litigious actions (fill in what Respondents did which qualify) should qualify under the subject of
frivolous and vexatious, this Honorable Court should consider same when
deciding the matter of costs of this application.
14.
Having considered the provided arguments for
costs, this Honorable Court may find it appropriate to order the Intended Respondents to
pay costs throughout, in addition to all reasonable disbursements.
Recent Example case of self represented litigant receiving costs in Court of appeal:
Druet v. Girouard, 2012 NBCA 40 (CanLII), 2012 NBCA 40, [2012] N.B.J. No. 136 (QL)
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