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
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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