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Presentation - Costs. Haynes v. Canada (Attorney General)
In Haynes v. Canada (Attorney General) (Fed CA, 2023) the Federal Court of Appeal considered costs awarded to presenting (self-represented) parties:[14] Here, I see no reason to interfere with the Federal Court’s finding in this regard. It was open to it to expect that the appellant would have provided some evidence or information regarding the costs he had incurred so far in the application for judicial review. This approach is consistent with this Court’s jurisprudence according to which unrepresented litigants, while not barred from receiving costs, have no automatic right to the full amount contemplated by the Tariff. Rather, self-represented parties are entitled, in addition to actual outlays and disbursements, to “some form of compensation […], particularly when [they are] required to be present at a hearing and [forego] income because of that” (Air Canada c. Thibodeau¸ 2007 FCA 115, 375 N.R. 195 at para. 24, citing Sherman v. Minister of National Revenue, 2003 FCA 202, [2003] 4 F.C. 865). . The Catalyst Capital Group Inc. v. West Face Capital Inc.
In The Catalyst Capital Group Inc. v. West Face Capital Inc. (Ont CA, 2023) the Court of Appeal considered messy, three-appeal litigation between private equity corporate actors.
In these quotes the court comments on cost awards to self-presenters in SLAPP motions, here in an unusual high-dollar private equity corporate dispute:[159] To the defendants who were self-represented – namely, Baumann, McFarlane, and Levitt in the Wolfpack action and McFarlane alone in the Defamation action – the motion judge awarded the amount they sought, except for McFarlane whose per hour rate sought was reduced from $200 to $150 an hour. Baumann was awarded his costs of $118,160.67 inclusive of HST and disbursements. Levitt was awarded his costs of $199,748.92 inclusive of HST and disbursements. McFarlane was awarded costs of $142,044.91 inclusive of HST and disbursements, less the difference in the hourly rate he claimed from $200 to $150 per hour. These costs awards included both legal fees incurred by the self-represented defendants at points during the proceeding where they retained counsel and compensation for the time they personally incurred.
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[173] I also see no reason to interfere with the motion judge’s discretion in relation to the appellants’ second ground of appeal. Here, the appellants argue there was an insufficient evidentiary basis for the recovery of any costs by the self‑represented defendants. This too is a request to reweigh the evidence.
[174] There is no error whatsoever in the motion judge’s exercise of discretion to award costs for the modest amounts of time the self-represented defendants requested (and at the reduced rate for McFarlane). The motion judge considered all the evidence filed and, in the absence of cross-examination, found that the self‑represented defendants were entitled to costs for time and effort for work ordinarily done by a lawyer as well as costs for opportunity loss by foregoing remunerative activity.
[175] Bearing in mind that the costs awards to the self-represented defendants also include legal fees they incurred at points during the anti-SLAPP motion when they retained counsel, the award to them personally is modest indeed. The Catalyst parties did not seriously dispute the time spent by these lawyers or their hourly rates, which the motion judge found imminently reasonable, nor did the Catalyst parties appeal these amounts. Finally, the Catalyst parties did not deliver any dockets of their own so that a comparison could be made between the time and effort they undertook with that undertaken by the self-represented defendants. I find no grounds upon which to conclude that the judge erred in exercising his discretion. Consequently, I would deny leave to appeal on the second ground too. . Zbogar v. Dhall
In Zbogar v. Dhall (Div Ct, 2020) the Divisional Court set out the test for cost awards for presenting parties:[4] Fong v. Chan, 1999 CanLII 2052 (ON CA), provides that that costs should only be awarded to a self-represented litigant 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 the work done by them resulted in a loss by forgoing remunerative activity. The Divisional Court in Mustang Investigations v. Ironside 2010 ONSC 3444 confirmed that Fong remains good law. . Di Geso v. Pascoe
In Di Geso v. Pascoe (Div Ct, 2022) the Divisional Court extensively considered costs awarded to presenting parties.
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