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Saskatchewan Court of Appeal Awards Self-Represented Individuals Costs Beyond Out-of-Pocket Expenses

A recent decision by the Saskatchewan Court of Appeal made a significant change in the way costs may be awarded to self-represented litigants.  In Hope v Pylypow, the Saskatchewan Court of Appeal awarded costs to a self-represented couple, above and beyond their out-of-pocket expenses.  Previously, Saskatchewan case law has dictated that self-represented litigants were not to be compensated for any costs beyond their out-of-pocket expenses.

The case began when Kevin and Fey Hope (“the Hopes”) were developing residential lots in the Rural Municipality of Parkdale.  During development, the Hopes noticed that a road was not centred, causing it to encroach their property.  A question arose as to whether they or Parkdale should pay the cost of realigning the road. The Hopes sought a ruling from the Planning Appeals Committee of the Saskatchewan Municipal Board (“the Board”).  The Board held in favour of the Hopes, ruling that the road should be recentred in a timely fashion and at Parkdale’s expense.  When Parkdale failed to act, the Hopes sued for misfeasance in public office and defamation.

At trial, Parkdale argued that the Hopes had no reasonable cause of action.  The Court of Queen’s Bench agreed with Parkdale in part, striking down the claim for defamation.  However, the judge left the misfeasance claim in place with amendment recommendations. 

In chambers, Parkdale applied to strike down the amended misfeasance claim on the ground that it was scandalous, frivolous and vexatious.  The chamber’s judge granted the application and awarded costs on a solicitor-client basis to Parkdale.  The Hopes appealed this decision.

At the Saskatchewan Court of Appeal, the Hopes successfully argued that the chambers judge had erred on numerous grounds.  Because of their success, the Hopes no longer had to pay Parkdale’s solicitor-client costs.  More importantly, the Court of Appeal held that the rule preventing self-represented litigants from receiving an award for costs greater than out-of-pocket expenses would no longer be followed.  Under the new rule, the Hopes were awarded costs that covered their out-of-pocket expenses: $1,000.00 in relation to the appellate proceeding and $500.00 in relation to the proceedings in the Court of Queen’s Bench.

The reasoning that the Court of Appeal employed when renouncing the old rule was that it created inequality in the legal system.  Inequality was found to exist in two ways: First, the previous system did not satisfy the purpose awarding costs was originally meant to serve.  Second, the previous system put an individual who did not have counsel in the difficult position of being unable to take advantage of cost recovery while leaving that same individual liable to pay costs if he or she was unsuccessful.  Accompanying this decision, the Court of Appeal introduced a broad framework of analysis for Saskatchewan courts to follow when adopting the new approach to awarding costs.
           
The Court of Appeal’s decision to adopt a more modern approach brings Saskatchewan into line with other Canadian jurisdictions.  This change will affect the cost-benefit equation that all litigants must consider when contemplating litigation or evaluating settlement.  The previous system skewed this equation to the detriment of self-represented litigants.  Now, all parties must consider the possibility of paying or receiving solicitor-client costs when making litigation decisions. 

2015 SKCA 26