Costs for Self-Represented Litigants: Principles, Interests and Agendas

The general rule in Canada is that successful litigants are entitled to recover their costs from the losing party. Throughout most of the twentieth century, however, it was assumed that litigants who chose to represent themselves did not have that entitlement. They could recover only their disbursements. That exceptional treatment of self-represented litigants was formally premised on the supposed absence of an indemnifiable expenditure, and buttressed by assertions that self-representation created difficulties for the judicial system. Additionally, lawyers and judges piously volunteered negative assessments of the behaviours, expectations and motives of lay litigants. On the other side, the practical reality was that lay litigants lacked the means or stamina to challenge what appeared to be an undisputed practice. Recently, however, the denial of costs has come under attack as part of a general trend of accommodation of self-represented litigants. There is a recognition that access to justice is compromised by practices and procedures that hinder or block self-representation. Some courts have instituted broad changes to assist unrepresented litigants. Some have specifically concluded that costs are recoverable by self-represented litigants. Other courts sit on the sidelines. There is another dimension to the issue. The content and development of the law on the subject has throughout coincided with judicial and professional interests. That coincidence is plainly evident in the no costs rule. It is less evident, but still present, in the recent transformation of the rule in several jurisdictions. As social imperatives have fostered self-representation, judges and lawyers have shifted the specific ways in which they benefit from the costs power. In particular, judges appear to have embraced reform of the no costs rule in order to enhance juristic support for their now broad general power to use costs awards for multiple functions. This second dimension arguably is the more profound one in terms of ultimate social impact. Yet in another sense it is pedestrian insight because it has long been understood that institutional arrangements often advance the interests of those who shape them. I will necessarily probe, but not deeply explore, this other dimension. My narrow objective is to add to the doctrinal support for the view that self-represented litigants are entitled to their costs.

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