The wife in this case sought Costs on a full indemnity basis from the solicitor who previously acted for the husband. Kent J. denied an Application by that lawyer for permission to continue to act for the husband, notwithstanding that a lawyer in his office had been consulted by the wife prior to the wife commencing the Action for divorce. The wife’s counsel stated that she notified the solicitor immediately of the conflict, but the solicitor continued to pursue Motions with respect to disclosure, payment of spousal support and related relief. Counsel for the solicitor argued that the solicitor did not act egregiously and the Costs that the wife should be entitled to would be the usual party/party Costs.

Kent J. noted that Rule 10.50 permitted the Court to order a lawyer to pay Costs personally if the lawyer “engages in serious misconduct” and these Costs have been awarded where a lawyer has promoted excessive motions, put forward irrelevant material and generally acted in bad faith. Further, awarding such Costs required a finding of positive misconduct. In this case, Kent J. held that the lawyer did not act inappropriately when he sought a ruling about his ability to act and because he lost, the wife would receive party/party Costs. The only conduct that Kent J. considered as questionable was that the solicitor waited approximately three months to bring the Motion; however, this conduct did not rise to the level of ordering Costs personally against the solicitor.

Even though Costs were not personally awarded against the solicitor, Kent J. did find that the delay in bringing the Motion was inexcusable and during that period, work was done on the file by both sides that became irrelevant. Based on this, Kent J. ordered Costs of $5,000 to the wife.