Legal Blog

Self Reps

More people than ever have been representing themselves in court. This is particularly so in matrimonial disputes and in civil claims in which the amounts at stake are not large. The moment that a party represents herself, the costs of the other party, with a lawyer, rise significantly. An opposing lawyer spends an inordinate amount of time because the self-represented party does not know the rules of the game or refuses to play by them. However, sometimes the self-represented party crosses the line and gets caught. This is demonstrated in Torty v. Gelina, a 2008 Ontario Superior Court of Justice decision.

History

A contractor liened the lands of the owner, who was initially represented by counsel, but who ultimately represented herself at trial. The owner had paid $47,000 into court to vacate the lien. The Master dismissed the contractor’s claim for $38,000 and dismissed the owner’s counterclaim for $100,000. The Master ordered that each party bear its own costs.

The owner moved to oppose confirmation of the Master’s report. This is akin to an appeal. Judge #1 held that the owner had to obtain transcripts of the hearing and provide them to the contractor’s solicitors before the return of the motion. The motion came on before Judge #2, but the owner still had not obtained the transcripts. Judge #2 adjourned the motion and again ordered the owner to obtain the transcripts and file a proper motion record. At the next return date, Judge #3 noted that the owner had obtained the transcripts, but she still had not provided a proper motion record and a memo of fact and law. Judge #3 adjourned the motion, but directed that the owner could not set it down again without a proper motion record and a memo of fact and law.

Instead of complying with the latest order, the owner moved before Judge #4, without notice to the contractor’s lawyers, and obtained an order for the return of the money she had paid into court.

After she obtained her money, the owner then brought a motion on notice to obtain an order for costs of $32,000 against the contractor’s lawyers personally. The contractor moved to set aside the order of Judge #4.

Findings 

Judge #5 who heard the motion was not amused with the owner’s antics. She noted that:

1.   The owner was comfortable with the courts. She had assessed the account of her first lawyer. She then moved to oppose confirmation of that report. She appealed the adverse results of that motion to the Divisional Court and then moved for leave to appeal the adverse results of that appeal to the Court of Appeal. Further, her second lawyer had obtained an order for payment of his fees and the owner had appealed that order as well.

2.   An unconfirmed Master’s report has no effect. Accordingly, since the matter had not been completed, there was no reason why the owner should have had her security returned to her.

3.   A motion without notice must contain all relevant facts. Judge #5 knew that Judge #4 would never have granted the order if she had known all the facts. When Judge #5 asked the owner what she had filed with Judge #4 to obtain the order and whether she had told Judge #4 of her motion to oppose confirmation, the owner failed to produce the motion material and coyly indicated that Judge #4 had never asked whether she was opposing confirmation.

4.   The owner had no right to bring a motion for return of the security without giving notice to the contractor’s lawyers.

Result 

Judge #5 set aside the order of Judge #4 and ordered the owner to pay $50,000 back into court. She then ordered that, by a stated date, the owner had to comply with the orders of Judges #1-3; if she did not, the motion would be deemed to have been abandoned with costs to the contractor. Finally, she ordered that the owner forthwith pay costs of the motion fixed at $1,500.

We figure that, unfortunately for the contractor, his costs were far more than $1,500.