Howard B. Oldham

The court determined costs following dismissal of a motion seeking removal of plaintiffs’ counsel due to an alleged conflict of interest.

Applying s. 131(1) of the Courts of Justice Act and Rule 57 of the Rules of Civil Procedure, the court exercised its discretion to award costs to the plaintiffs as the successful parties.

Although the motion raised a potentially significant issue regarding counsel’s role, the court found delay in bringing the motion and concerns suggesting it may have been brought for tactical reasons.

The amount sought by the plaintiffs was considered excessive for the scope and complexity of the motion.

Costs were fixed at a reduced amount payable by the defendant.

The defendant brought a motion seeking to remove the plaintiffs’ solicitor of record on the basis of an alleged conflict of interest arising from the solicitor’s prior representation of the defendant in a property purchase.

Applying the test from MacDonald Estate v. Martin, the court considered whether the lawyer had received confidential information relevant to the current litigation and whether there was a risk that such information could be used to the defendant’s prejudice.

The court found that any information obtained during the earlier retainer was outdated, minimal, and largely discoverable through ordinary litigation processes.

The court also noted that the defendant delayed bringing the motion until shortly after service of a summary judgment motion, suggesting a tactical motive.

Balancing the integrity of the profession with the plaintiffs’ right to counsel of choice, the court declined to disqualify counsel.