What is the test for an extraordinary disregard for the standard of conduct of a solicitor and client?

Manitoba, Canada


The following excerpt is from Bank of Nova Scotia v. Eadie, 1984 CanLII 3890 (MB QB):

I do not see this is a case for solicitor and client costs, which are only awarded in extraordinary circum stances. For example, in Eons v. Panju, [1978] 5 W.W.R. 244 (B.C.S.C.), the test for the payment of costs on a solicitor and client basis was said to be "an extraordinary disregard for the standard of conduct to be expected". This case was quoted with approval in Vance v. Vance, [1981] 6 W.W.R. 432 (B.C.S.C.). In my view, the defendant's conduct cannot be so classified. While he can be criticized for failing to have sufficient funds in his bank to honour the two final postdated cheques, nevertheless, he did not ignore the matter and did ultimately tender to the plaintiff the amount which he thought was owing. There was a genuine differ ence of opinion between him and the plaintiff as to the precise amount owing, but that has now been resolved and the full amount of the plaintiff's claim has been paid. Furthermore, the defendant was entitled to a set-off for his legal bills. That set-off has now been agreed upon and has been credited to the defendant in the final settle ment. The arrangement was that the plaintiff was to cause these bills to be taxed if it was not satisfied with them. Although the plaintiff's manager swore that proceedings were underway for this taxation, the defendant swore that he never had been served with an appointment for same. Moreover, the taxation could not be expedited because of the delay resulting from the diffi culty the plaintiff had in locating . and delivering the . relevant files to the defendant. This was no fault of the defendant. [10] The plaintiff is entitled to costs on a party and party basis. Order accordingly. claim has been paid. Furthermore, the defendant was entitled to a set-off for his legal bills. That set-off has now been agreed upon and has been credited to the defendant in the final settle ment. The arrangement was that the plaintiff was to cause these bills to be taxed if it was not satisfied with them. Although the plaintiff's manager swore that proceedings were underway for this taxation, the defendant swore that he never had been served with an appointment for same. Moreover, the taxation could not be expedited because of the delay resulting from the diffi culty the plaintiff had in locating . and delivering the . relevant files to the defendant. This was no fault of the defendant.

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