Background
The parties’ underlying dispute concerned a failed business venture involving the purchase and management of two Okanagan properties rented through Airbnb. After a 19-day trial, most of Jennifer Schwitzer’s claims were dismissed. She appealed and initially obtained a stay, but missed transcript deadlines and later sought further extensions while the respondents sought to lift the stay and dismiss the appeal for delay.
After Schwitzer, then represented by counsel, committed to narrowing her appeal to three main grounds, the parties agreed to a narrower transcript and Justice Butler granted an extension, declined to dismiss the appeal, and varied the stay. Schwitzer subsequently discharged counsel and attempted to return to her original 11-ground factum. Justice Butler held that doing so while retaining the benefits obtained through the narrowed appeal was an abuse of process, struck the 11-ground factum, and awarded the respondents special costs for the related applications and case-management conference.
The Court’s Holding
Registrar Outerbridge assessed the respondents’ special costs at $6,068: $6,000 for fees and $68 in allowable disbursements. The registrar applied a qualified quantum meruit approach for self-represented litigants, considering the objective necessity and propriety of the work and the factors in Rule 71(3) of the Court of Appeal Rules.
The registrar rejected a lost-opportunity approach and declined to use the respondent’s proposed $200 hourly rate. Although the proceedings involved moderately complex abuse-of-process issues and Schwitzer’s conduct had unnecessarily prolonged the appeal, the more than 50 hours claimed exceeded what was objectively reasonable. The registrar also disallowed a requested $3,000 employment-related top-up and disbursements not specifically tied to the covered hearings.
Key Takeaways
- A self-represented party may recover special costs, but must provide sufficiently detailed evidence showing that the claimed work was objectively proper or reasonably necessary.
- British Columbia does not assess a self-represented litigant’s special costs based on their forgone earnings or lost opportunity.
- An appellant cannot retain procedural benefits obtained by narrowing an appeal while later attempting to revive the broader appeal; that conduct may amount to abuse of process and justify special costs.
Why It Matters
The decision confirms that special-costs assessments for self-represented litigants remain objective and proportionate. They can provide substantial indemnification for necessary litigation work, but do not compensate a litigant according to personal earning capacity or unsupported time claims.
It also underscores that appellate commitments and procedural agreements have consequences. Parties who reverse positions after obtaining an order based on those positions risk both procedural sanctions and special costs.