Can Self-Represented Litigants Recover Costs in Ontario Court?

Can You Get Costs in Ontario If You Don’t Have a Lawyer?

Yes — Ontario courts can award a fee allowance to self-represented litigants who spend time doing work that a lawyer would normally handle. A recent Superior Court decision, Larabie v. Crickard, 2026 ONSC 3949 (CanLII) (full text), confirms this principle and works through how courts calculate those awards when the outcome is mixed.

If you are facing litigation without legal representation — whether in an employment dispute or another civil matter — understanding how costs work can significantly affect your decision-making.

What Is the Girao Test for Self-Represented Litigants?

The Girao test is a two-part framework Ontario courts use to decide whether a self-represented party deserves a fee allowance in a costs award. First, the court asks whether the person devoted time and effort to tasks that a lawyer would ordinarily perform — things like drafting materials, researching legal arguments, and preparing for hearings. Second, the court looks for an opportunity cost: did representing themselves require the person to give up paid work or other remunerative activity?

In Larabie v. Crickard, the self-represented respondents satisfied both parts of this test. The court confirmed that a lack of precise time records does not automatically disqualify someone from receiving a fee allowance. What matters is whether there is a reasonable basis to conclude that real time and real opportunity cost were involved.

How Does Mixed Success Affect a Costs Award in Ontario?

Mixed success reduces the costs a winning party can recover. Ontario courts do not simply ask who won the case overall — they look at the outcome on each significant issue and weigh it against the effort spent arguing points that did not succeed.

Here, the respondents succeeded on the determinative issue, which was the core of the dispute. However, they were unsuccessful on questions of jurisdiction, consolidation, and the admissibility of a supplementary affidavit. The court treated this mixed record as a reason to reduce the quantum of the costs award, even though the respondents were clearly the overall successful parties.

Does Conduct or a Settlement Offer Change What the Court Awards?

Yes — both conduct and the presence or absence of a formal settlement offer are relevant factors under Rule 57.01. Courts look at whether either party took steps that were improper, vexatious, or unnecessary, because such conduct can increase or decrease the award.

In this case, the court found no improper conduct on the applicant’s part. The absence of a Rule 49 offer — a formal written offer to settle — was also noted. While the absence of an offer is not automatically penalized, it is a factor courts consider when setting the final number. Parties who make reasonable settlement offers early in a proceeding are in a stronger position when costs are assessed.

How Are Costs Split Between Separate Proceedings Arising from the Same Events?

When the same underlying facts give rise to both an application and a separate action, counsel’s fees must be allocated between the two proceedings. This is a practical challenge because lawyers rarely track their time with that level of separation.

The court in Larabie v. Crickard approved a reasonable allocation approach based on the materials actually filed in each proceeding. Where documentation is limited, a court will use its judgment to arrive at a fair division. The lesson for litigants and their lawyers is to keep records that distinguish work done in each proceeding from the outset — it makes the costs assessment far simpler.

Can Two Costs Orders Be Offset Against Each Other?

Yes — where both parties hold costs orders against each other from the same or related proceedings, they can offset one against the other. The court clarified that an earlier costs order remained in full force and effect; the parties were simply permitted to net the two amounts against each other rather than making two separate payments.

This kind of offset is practical and common. It does not extinguish either order — it just simplifies enforcement. The court identified the net amount owing and confirmed the costs award with the offset acknowledged.

Practical Takeaways for Self-Represented Litigants

• Track your time carefully. Keep a contemporaneous log of every hour you spend on legal tasks — drafting, researching, attending hearings, preparing materials. Precise records strengthen your fee allowance claim, even though their absence is not automatically fatal.
• Document your opportunity cost. If preparing your case required you to take time off work or turn down paid opportunities, gather evidence of that lost income. This is the second part of the Girao test.
• Make a Rule 49 offer if you can. A formal written offer to settle, made early and in good faith, puts you in a stronger position on costs if the other side refuses and you ultimately do better at trial or on the motion.
• Choose your battles. Losing on multiple secondary issues — jurisdiction, procedural motions, admissibility — will reduce your costs award even if you win the main point. Focus your effort on arguments that matter.
• Understand that prior costs orders remain in force. If there is an earlier order against you, it does not disappear when a new order is made in your favour. The two amounts can be offset, but both orders are real obligations.

If you are involved in an employment dispute or other civil litigation in Ontario and have questions about your rights — whether you are represented or not — our Ontario employment lawyers can help you understand your position before costs become an issue. We also serve clients in Hamilton, Burlington, and across the greater Golden Horseshoe region from our Burlington employment law office. UL Lawyers offers a free initial consultation, so there is no cost to getting a clear picture of where you stand.

---

This article is automated commentary on a public court decision and is for general information only — not legal advice. Decisions rely on facts unique to each case. If you are affected by a similar issue, contact a lawyer for advice specific to your situation.