Most Insurers are aware of the higher costs associated with litigation where the opposing party is self-represented. High costs can be due to a variety of factors, such as numerous applications, failure to follow procedural steps, irrelevant claims and lengthy unfocussed submissions — all of which serve to drive up legal fees. Often, the court will go out of its way to assist a self-represented litigant navigate the system, and excuse non-compliance with court rules and/or timelines thereby adding further delay to the trial process.
Despite the extra cost associated with litigation against a self-represented party, courts are often reluctant to award costs due to the distinct disadvantage the self-represented party faces. In Wright v. Sun Life Assurance Co. of Canada, 2015 BCSC 1899, the Court was required to consider what type of costs award should be granted against a self-represented individual who was unsuccessful at trial.
In Wright, the Insurer made an offer to settle the case prior to trial. The Plaintiff did not accept. Ultimately, the claim was dismissed and the Plaintiff received no award. The Court held that the Insurer’s offer to settle ought reasonably to have been accepted, as the Plaintiff’s view of his entitlement and likelihood of recovery was unrealistic.
The Court then addressed the relative financial circumstances of the parties. While it was clear that the Insurer had a far greater financial ability to defend the claim than the Plaintiff to prosecute, the Court found that this factor did not weigh against the Insurer. There was no evidence that the Insurer had used its greater financial resources in a way that distorted the litigation process.
On the contrary, the Court held that the Plaintiff conducted the litigation in a way that “seemed designed to maximize the litigation expense” for the Insurer, in circumstances where the Plaintiff had no personal financial stake in terms of incurring legal costs. The Court was critical of the Plaintiff’s failure to comply with the Rules as well as directions, deadlines and orders. The Court pointed to the Plaintiff’s submissions at the costs hearing as illustrative: an affidavit of 117 paragraphs with eighty-three exhibits.
Ultimately, the Court held that the Plaintiff had not shown any regard for the costs consequences of his conduct. The Plaintiff ignored everything he did not agree with, and made scandalous accusations about Defence counsel. In those circumstances, the Court ordered costs to the Insurer, with double costs from the date of the offer to settle.
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