Following an Application in which the Defendant in an Action pursuant to the Matrimonial Property Act, RSA 2000, c M-8 successfully applied for dismissal for long delay, the parties appeared before the Court with respect to Costs. The Applicant sought enhanced Costs, as well as Costs against the Respondent’s counsel personally pursuant to Rule 10.50.

Justice Gates first considered the appropriate Column of Schedule C and rejected the Respondent’s argument that Column 1 was appropriate because a divorce action involves no monetary amount. Justice Gates reviewed the evidence of the value of the matrimonial property and determined that Column 5 of Schedule C was appropriate. Gates J. noted that Rule 10.33 sets out the list of factors to consider when making a Costs award. His Lordship mentioned the Respondent’s delay and misconduct, noted that the Plaintiff had made several Calderbank offers in the course of the litigation, and observed that the Defendant had failed to follow the terms of an Order pronounced June 18, 2016. Gates J. awarded double Costs from the date of a Calderbank offer dated October 15, 2015, and triple Costs from the date of the June 18, 2016 Order.

Justice Gates considered whether it was appropriate to award Costs against the Defendant’s solicitor personally pursuant to Rule 10.50. Gates J. confirmed that an award of Costs against counsel personally is an extraordinary award, and there must be a finding of misconduct on the part of counsel to justify such an award. There was no evidence of bad faith or deliberate misconduct and Gates J. declined to award Costs against the solicitor personally.