Lakhoo v. Lakhoo, 2012 ABQB 574

Court of Queen ’ s Bench of Alberta Citation: Lakhoo v. Lakhoo, 2012 ABQB 574 Date: 20120918 Docket: 4801 146333 Registry: Calgary Between: Shamim Lakhoo Plaintiff - and - Rahim Lakhoo Defendant _______________________________________________________ Memorandum of Judgment of the Honourable Madam Justice C. A. Kent _______________________________________________________ [ 1 ] Counsel for the wife seeks costs on a full indemnity basis from the solicitor who previously acted for the husband.

That lawyer had applied for permission to continue to act for the husband, notwithstanding the fact that a lawyer who had been in his office had been consulted by the wife just prior to the wife commencing this action for divorce and a division of matrimonial property. I denied the application ( 2011 ABQB 526 ). [ 2 ] Counsel for the wife says that this fits into those cases where the conduct of the solicitor was so egregious that he ought to personally pay not only the costs of the wife defending the application but also all of the costs incurred by the wife during the time that the solicitor was acting.

The wife's counsel says that she notified the solicitor immediately when she learned that he was acting for the

husband. She told the solicitor that he had a conflict. Notwithstanding that advice, the solicitor continued to aggressively pursue motionswith respect to disclosure, the payment of spousal support and related relief.

She says that the wife incurred costs of about $25,000during the three months that the solicitor was acting for the husband. [3] Counsel acting for the solicitor says that the solicitor did not act egregiously and that the costs that the wife should beentitled to would be the usual party/party costs for a contested motion. [4] Rule 10.5 permits the court to order a lawyer to pay costs personally if the lawyer "...engages in serious misconduct...". Thisis an exceptional remedy: Adams v. Adams, 2011 ABQB 812 citing 155569 Canada Ltd. v. 248524 Alberta Ltd., [1997] AJ No. 296.

Inthe ordinary course, costs are intended as compensation for the successful party, not to punish a lawyer. They have been awarded wherea lawyer has promoted excessive motions, put forward irrelevant material and generally acted in bad faith: Young v. Young, (SCC), [1993] 4 SCR 3, Loates v. Loates (2001), 2000 ABQB 253 , 264 AR 287. There must be a finding of positivemisconduct: Robertson v. Edmonton (City) Police Services, 2005 ABQB 499. [5] In this case, the lawyer did not act inappropriately when he sought a ruling about his ability to act.

He lost and as in theordinary course, the wife will receive costs as set out below. The only questionable conduct was waiting about three months from thetime that he was advised that opposing counsel was challenging his ability to act and bringing the motion. That conduct does not rise tothe level of ordering costs personally against the solicitor. The costs that I ordered are not against the lawyer, but against the party. [6] That takes me to dealing with the appropriate level of costs. This was a contested application where no briefs were filed.Party/party costs would be $500.

However, I do think that enhanced costs are appropriate. Although I have found that the lawyer'sbehaviour was not such as to attract costs personally against him, the delay in bringing this motion was inexcusable. During the periodbetween being notified of opposing counsel's position and the date of the application, work was done on the file by both sides. Some ofthat work became irrelevant given the style of the new counsel. As a result, unnecessary work was done by the wife's counsel.Accordingly, I order costs of $5000 to the wife which includes costs of this application.

Heard on the 6th day of September, 2012. Dated at the City of Calgary, Alberta this 18th day of September, 2012. C. A. Kent J.C.Q.B.A. Appearances: Judy N. Boyes, Q.C.

Davis LLP for the Plaintiff J. Patrick Peacock, Q.C. Peacock Linder & Halt LLP for the Defendant