Legal Fees Recoverable By Self-Represented Counsel?

For a time there was a doubt as to whether counsel could recover costs where they represented themselves in collection matters.

 

Caselaw suggesting costs were inappropriate noted that other parties who self represented could not get costs and asked why should counsel have a special privilege: see Carrier v. Turner (June 8, 1994, Ont. Ct. Gen. Div.).  Other caselaw, which now governs,  pointed out the lost opportunities counsel suffered when they were in court for themselves: Fong, et al v. Chan, et al, 1999 CanLII 2052 (ON C.A.).

 

The law is now clear that counsel are entitled to costs but not to a witness fee.

 

Last week’s Superior Court decision in Teplitsky v. McCrea, 2008 CanLII 15910 (ON S.C.) sets out the law clearly:

 

 

The plaintiff was represented by members of its own firm throughout the litigation and at trial. Counsel for the defendant concedes that this does not preclude the recovery of costs. The court will award costs where appropriate, taking into account the firm’s lost opportunity for other work while conducting the proceeding: Fong v. Chan 1999 CanLII 2052 (ON C.A.), (1999), 181 D.L.R. (4th) 614 (C.A.); Lawyers Professional Indemnity Co. v. Geto Investments Limited, [2001] O.J. No. 2058 (S.C.J.). This is only fair – the alternative would be to force the law firm to hire external counsel, probably at greater expense. While the cost of collection of accounts is a part of a law firm’s overhead, that should not extend to collection requiring protracted litigation. That being said, I accept Mr. Johnston’s submission, supported by the foregoing authorities, that time that would have been spent by any litigant as part of preparation and attendance at court proceedings should not be recoverable. I note in this regard that some $10,000.00 of Mr. Colson’s time has been deducted from the plaintiff’s docket of over $40,000.00 in time on a substantial indemnity basis, to arrive at the net of $10,713.00, plus GST, claimed by the plaintiff for fees on a partial indemnity basis. The plaintiff also claims disbursements of $1,716.16 for a total of $12,964.81.

 

 

 

James Morton

Steinberg Morton Hope & Israel

1100-5255 Yonge Street

Toronto, Ontario

M2N 6P4

 

416 225 2777

 

Blog:  http://jmortonmusings.blogspot.com/