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CIVIL PROCEDURE - Costs - Where litigant acting on own behalf

Wednesday, April 17, 2019 @ 8:41 AM  


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Appeal by clients from a costs award of $60,583 arising from the dismissal of an application to assess the accounts of their former lawyers. The respondents represented themselves in successfully defending the appellants' application. Thereafter, the parties provided submissions on costs. The respondents prepared a costs outline claiming partial indemnity costs of $60,583. The appellants submitted that in the absence of evidence of opportunity costs associated with responding to the application, the respondents could not recover any amount. The respondents filed reply submissions that included affidavit evidence regarding forgone work caused by the time spent defending the appellants' application. The appellants submitted the affidavits were vague and insufficient. They took the position that any award of costs should not exceed $5,860. The respondents cited solicitor and client privilege as the basis for not providing additional details. The application judge found that the respondents lost the opportunity to bill other clients, and that the partial indemnity costs claimed were moderate and reasonable. Even if some of the time should have been discounted, there was justification for a higher scale given that the application was without foundation. The clients appealed.

HELD: Appeal allowed. The application judge did not err in accepting that there were lost opportunity costs associated with the respondents' self-represented defence of the appellants' application based on their reply evidence. The appellants suffered no prejudice, as they were given the opportunity to cross-examine on the affidavits and to make submissions in response. In quantifying the respondents' costs, the application judge erred in interpreting Fong, the jurisprudence governing the recovery of costs by self-represented litigants. Fong made clear that self-represented litigants, including lawyers, were not entitled to costs on the same basis as litigants who retained counsel. By awarding the respondents costs on a partial indemnity basis, the application judge effectively treated the respondents as counsel. The costs award was set aside and replaced by an award of $20,000, all-inclusive.

Benarroch v. Fred Tayar & Associates P.C., [2019] O.J. No. 1427, Ontario Court of Appeal, P.S. Rouleau, G.T. Trotter and B. Zarnett JJ.A., March 22, 2019. Digest No. TLD-April152019008