In a consolidated personal injury Action which followed a boat collision, a passenger of the boat, Mr. Washburn, sued the Estate of the driver Melvin Marshall (the “Estate”) as well as the Estate’s Personal Representative, Mark Marshall (“Marshall”). Mr. Washburn included allegations and claims against Mr. Scholly, a non-party and prior counsel for the Estate of Melvin Marshall in the consolidated Action. Mr. Washburn also sought costs against Mr. Scholly on a solicitor-client basis. Mr. Scholly made an Application to strike the allegations.

Jerke J. canvassed Rules 3.1 and 3.2 which collectively state that an Action may only be commenced by Statement of Claim against a Defendant or by Originating Application against a Respondent. Jerke J. referred to Rule 1.5(1)(b) which states that the Court may set aside an Application or proceeding it if does not comply with procedural requirements, and the non-compliance causes prejudice. Applying these Rules, Jerke J. granted the Application to strike. Neither Mr. Scholly nor his firm were properly named as Defendants or Respondents in the Action. Moreover, allowing allegations against Mr. Scholly and his firm to stand would cause prejudice because Mr. Scholly would be forced to defend against the allegations which could compromise his duties of confidentiality to his client.

Jerke J. addressed Mr. Washburn’s claim for Costs and noted that Mr. Washburn had included a claim for solicitor-client Costs from the Estate and Personal Representative, as well as their solicitors in his initial Application. Justice Jerke noted that Mr. Washburn was seeking to adjourn the matter of Costs pending a determination of Court proceedings or a Trial in order to see if there was a shortfall and evaluate whether he wanted to pursue the Application against Mr. Scholly. Jerke J. confirmed that Costs may be personally awarded against a lawyer. The basis for such an award is set out in Rule 10.50 which allows the Court to award Costs against a lawyer where the lawyer for a party has engaged in “serious misconduct”. Jerke J. referred to recent Supreme Court authority which stated that Costs against a lawyer will only be granted in exceptional cases where the Court has before it a proceeding representing a “serious abuse of the judicial system by the lawyer, or dishonest or malicious misconduct on his or her part, that is deliberate…”.

Jerke J. dismissed the Application for Costs against Mr. Scholly and found that there was no evidence of serious misconduct on the part of Mr. Scholly which would warrant a Costs award against him or his firm. The allegations were descriptive only of counsel mounting a defence for his client in the usual course.