The Ontario Court of Appeal has released its Costs Endorsement in the Girao v. Cunningham[1] appeal, an important decision involving a self-represented litigant which we covered extensively in our three part blog series last year: Guiding Light: ONCA Pronounces on Duties to Self-Represented Litigants at Trial, Principles Concerning Experts and the Evidence Act, and Trial Procedure and Preparation of a Joint Trial Brief. The Court of Appeal has now pronounced on important principles related to a self-represented litigant’s entitlement to costs.
Brief Overview of the Proceedings
The case arose from a motor vehicle litigation in which the appellant/plaintiff (Ms. Girao), a self-represented litigant, was injured by the respondent, Cunningham. The trial judge had dismissed her action for not meeting the Insurance Act statutory threshold to qualify for general damages. Costs were ordered against Girao in the amount of $311,845.43.
Ms. Girao was successful in her efforts to overturn the trial decision and a new trial was ordered, as discussed in our blog which can be found here.[2] Ms. Girao was awarded the costs for the appeal and underlying trial (including disbursements).
Costs
With respect to costs, the court found that at trial Ms. Girao had to expend funds that were to be treated as costs thrown away as these costs “were reasonably necessary to proceed with the action but were rendered useless by the other party’s conduct in responding or not responding to the action.”[3] Ms. Girao was found to be entitled to her trial disbursements of $14,021.40 and $6,491.39 for the appeal.[4]
Ms. Girao also claimed costs that had been incurred up to the trial, including $137,000 that she had paid to her former counsel. The court found that these costs, including pre-trial preparation, must be left to the discretion of the trial judge who hears the new trial. However, the court directed that in the event that an award of costs is made to the respondent during the new trial, Ms. Girao should not be responsible for costs incurred in responding to the actions of the respondent’s previous trial counsel that were subject to criticism in the appeal reasons.[5]
Fee Allowance
Ms. Girao sought a fee allowance of $800,000 for herself and her husband as compensation for the work they performed (calculated at $150 per hour, including their time in court at the trial and on the hearing of the appeal). The Court of Appeal noted the two conditions for a self-represented party to be awarded a fee allowance:
- a) the self-represented litigant devoted time and effort to do the work ordinarily done by a lawyer retained to conduct the litigation; and
- b) as a result, incurred an opportunity cost by foregoing remunerative activity. (emphasis added)[6]
The court agreed that the work performed by Ms. Girao and her husband should be recognized as work normally done by a lawyer, but would not award a fee allowance for time attending court. The court granted a nominal fee allowance to reflect the work performed, the amount of time they were required to devote to such work, and to acknowledge the court’s disapproval of the respondent’s trial tactics. While the court found that Ms. Girao’s method of calculating the amount she should be entitled to excessive (5,261 hours), the court fixed the fee allowance at $35,000. A lump sum payment was preferable to a complex cost hearing in which the self-represented party would be required to account for all of the work performed and money spent.[7]
Conclusion
This important decision highlights the principles to be applied when determining a self-represented litigant’s entitlement to costs, and the circumstances when they should be awarded in. Noteworthy is the court’s use of costs to reflect its disapproval of counsel’s tactics when against a self-represented litigant. When making a cost award for a self-represented litigant, a court is likely to avoid a cost hearing involving a line by line review of costs incurred, as this would not be an efficient use of the parties’ or the court’s time. In this case, a lump sum award, calculated at the court’s discretion, was preferable.
[1] 2021 ONCA 18 per Fairburn A.C.J.O., Lauwers and Zarnett JJ.A.
[2] Royal Bank v. Blatt, [1991] O.J. No. 688 (Ont. Gen. Div.)
[3] Supra note 1 at para 3.
[4][4] Supra note 1 at paras. 4-5.
[5] Ibid at para. 7.
[6] Ibid at para. 9 citing Benarroch v. Fred Tayar & Associates P.C., 2019 ONCA 228.
[7] Ibid at paras. 11-13.
