Bergen v Sharpe and SRL Costs: The Long and Short of It

The furor on Twitter which has accompanied the publication of Justice Price’s decision this week in Bergen v Sharpe reflects the deep anxiety among some members of the Bar about the spectre of SRLs who are compensated for representing themselves.

For these lawyers, Bergen is their worst nightmare come true. Is it possible to imagine any fate worse than facing a self-represented litigant in a family case?

The answer, served up by Justice David Price of the OCJ, is Yes! You could be facing a family SRL who deserves fair costs for their time and work, payable by your client.

Justice Price’s judgment deepens and elevates the nascent jurisprudence on SRL costs – but its bottom line ($200 an hour for a total of over $12,00 in costs to a SRL) may cause some lawyers to choke on their morning coffee as they browse Can Lii.

So how did we get here?

The Short of It: 4 Steps on the Road to Bergen v Sharpe

1. In family proceedings in Ontario, costs generally follow the award (Rule 24 Family Law Rules). Ergo, successful SRLs may receive costs. In addition, the courts increasingly use costs to penalize parties who delay, prolong proceedings, make unreasonable claims and refuse to consider settlement (more below).

2. Bad behaviour that would lead to an award of costs in favour of a represented party will similarly lead to an award of costs to a SRL (among others, Fong v. Chan). To do otherwise would undermine an increasingly important aspect of the costs regime – to encourage settlement – and would allow a represented party facing a SRL to prolong the matter with impunity.

3. The determination of who bears legal costs should not deter anyone from access to the courts (1465778 Ontario Inc. v. 1122077 Ontario Ltd, awarded costs to pro bono counsel to facilitate access to justice). A presumption against ever awarding costs to SRLs would amount to a bar on access to the justice system.

4. The assessment of the value of the time that SRLs put into their case should reflect an assessment of how much time it is reasonable for them to have spent working on their case – the same standard that is applied to lawyers – and an appropriate hourly rate.

This is the short story. If you are curious now about the longer version, and the many questions raised by this landmark decision, please read on….

Valuing a SRLs Time & Effort

Caselaw discussing how to assess time spent and apply a fair hourly rate for SRLs has crept along for several years. Several 2010 cases suggested that $20 an hour was sufficient, while another stated that $60 an hour was “a now-accepted rate for self-represented litigants.” (Blustein v. Kronby, Belobaba J.).

The courts have had a hard time accepting that SRLs should be compensated at a level anywhere near lawyers. The respondent in Rashid v. Shaher was a waitress who earned $12 an hour. Her award of $10,000 following a 11 day trial (she had asked for $163,000) reflected a preoccupation with her “day job” rather than anything approaching counsel’s remuneration for a lengthy trial. Fair? Unfair?

Should a fair hourly rate rate reflect the SRLs usual line of work, a standard rate, or the particular complexity and stress of the case? In Bergen, Justice Price decided on $200 an hour – less than counsel would charge, but explained as a reflection of a reasonable expectation of costs by the other (represented) party, who had pursued the litigation “unreasonably” (para 24).

What else should factor into an assessment of a fair hourly rate? Some suggestions.

SRL Experiences of Preparing for Court

My study of SRLs in three provinces (2013) shows that most work very, very hard at preparing their cases – long hours in libraries, at their home computers, and standing in line at the registry. Some give up or lose their employment as a result of the time and energy they put into their cases. They take so much time off work to attend court. The stress from the case bleeds into their work life.

A significant number of SRLs are professionals making a reasonable living. In my study, consistent with others, almost one in five earned over $75,000. Nonetheless they had exhausted their resources to retain counsel, making self-representation their only option rather than a frolic (a point emphasized by Justice Price in Bergen).

SRLs and Bad Behaviour

But hang on – aren’t cost penalties a perfect tool to control and discourage SRLs?. Groundless claims, time wasting, unreasonable attitudes towards settlement and/or inaction on settlement – isn’t that what SRLs do?

Certainly some SRLs may sometimes behave badly in these and other ways (although the extent to which so many are out of their depth raises the question of whether such self-defeating behaviour is ever intentional). But bad behaviour is not the sole purview of SRLs.

SRL Experiences of Bad Behaviour 

Where the other side had counsel (75% of my sample), SRLs often described what they understood as efforts by counsel on the other side to “snow” them with mountains of documents and constant motions in order to force them to give up.

While there is no way of objectively assessing these assertions, they were made frequently and credibly by intelligent, well organized and high functioning SRLs who saw this as a deliberate pattern of intimidation.

Whose Bad Behaviour Should We Penalize in Cost Awards?

Most regimes focus on penalizing bad behaviour that is attributed to the disputant, whether represented by counsel or not.  For example, costs awards on the grounds of  “bad faith” under Rule 24(8)) are intended to censor client actions (for example, refusal to co-operate with previous orders, alienating children, hiding assets etc). Complaints about frustrating or avoiding settlement (24(5)) similarly focus on the action or inaction of the disputant him or herself, although this seems more ambiguous given counsel’s traditional control over advancing or thwarting settlement discussions.

Rule 24(9) specifically allows for awards against lawyers who prolong a case, or run up unreasonable costs (awards that require them to reduce their account or personally repay their own client or the other side.)  A quick review of the last three years of Ontario OCJ cases shows – surprise! – that awards under 24(5) and 24(8) identifying the disputant, represented or not, as the source of bad behaviour are far more numerous than costs awards against lawyers under 24(9) (I found just two, one for $900 and the other for a whooping $1200).

Rule 24 rightly applies to both represented and self-represented parties, to lawyers and to disputants. In cases in which a court determines that the represented party is guilty of bad behaviour – and the SRL is the victim – the SRL will receive costs. And why not?

Finally…

It seems inevitable that in the coming days and weeks someone will argue that Justice Price’s decision in Bergen will “encourage” SRLs to take to the courts and run up costs that they can then gleefully demand from the Bench. Given what we know about the reasons that people self-represent, the impact it has on their lives, and the hope each of them carries that it will be over as soon as possible, this argument seems detached from the reality of most SRL experiences. Hopefully we shall not spend as much time on it as on debating this thoughtful decision, and the development of a fair approach to the issue of SRL costs.