Ruling recognizes lawyer’s ‘acts of professional kindness’ to opposing side at trial
In proceedings involving the Nipissing First Nation Matrimonial Real Property Law, the Ontario Superior Court rejected the applicant’s allegation that her former lawyer and the respondent’s counsel had colluded to prolong the case and charge more fees.
In Romain v. Kennedy, 2026 ONSC 2649, the respondent claimed a proprietary interest in a home on Nipissing First Nation land.
On Feb. 6, the court dismissed the proprietary interest claim, but ordered the applicant to pay the respondent $44,747.98 in damages for unjust enrichment, plus prejudgment interest.
The respondent asked for full indemnity costs of $10,642.67. He based his request on his trial success, his pre-trial settlement offer, and the applicant’s allegedly unreasonable litigation behaviour.
The applicant sought spousal support, damages, and costs. She alleged that Mr. Leckie, her lawyer whom she had since dismissed, and Ms. Klein, the respondent's lawyer, conspired to prevent the case from resolving earlier.
The Ontario Superior Court of Justice ordered the applicant to pay the respondent all-inclusive trial costs of $7,500. In fixing the amount, the court considered:
While the applicant's behaviour did not justify awarding the respondent full indemnity costs, the court ruled that her conduct warranted an enriched award of partial indemnity costs.
The court completely rejected the applicant’s position. The court accepted that a self-represented litigant like her would understandably be skeptical that opposing counsel would attempt to act in both sides’ best interests, which Ms. Klein was trying to do.
However, the court saw no merit in the applicant’s claim of collusion between the lawyers. The court found that Ms. Klein tried to resolve the case or at least narrow the issues – efforts that the applicant had thwarted.
The court added that Mr. Leckie showed obvious compassion for the applicant at every court appearance, carefully preserved his former client’s privacy, and provided submissions that continued to be helpful to the court.
The court then rejected the applicant's request for spousal support and damages. The court did not consider the cost submissions the proper forum to rule on issues not before it. The court noted that a judge had dismissed the applicant’s spousal support claim in the respondent’s successful summary judgment motion.
Next, the court partly accepted the respondent’s position. The court held that the respondent succeeded only on the first claim – seeking an order stating that he had contributed to the home’s building costs and quantifying the contribution amount – of his two-part claim.
The court agreed with the respondent’s argument that the applicant unreasonably complained about Ms. Klein’s conduct to the Law Society of Ontario (LSO), which dismissed the complaint. The applicant requested a review, which remained pending.
The court said the applicant’s act of making the LSO complaint showed disrespect toward one of the participants at trial.
The court recognized Ms. Klein’s “acts of professional kindness” in the proceeding. The court noted that Ms. Klein had assisted the applicant in organizing the many documents she had brought for her support claim.
The court acknowledged that the applicant might have behaved unreasonably in connection with the costs issue. However, the court determined that her behaviour at trial did not warrant an award of full indemnity costs throughout.
