When will a solicitor be found liable for special costs for fraudulent misrepresentation?

I am of the view that the respondent solicitor has failed to persuade me, on a preponderance of evidence, that the applicant bank has not, on a preponderance of evidence, established her liability for, in the particular circumstances, special costs. The law presumes that solicitors act upon instructions from their clients. That, pleadings are drafted reflecting in appropriate language the client's concerns, positions, complaints, if there be such complaints, and instructions. Where, as here, as determined at the conclusion of the trial Royal Bank v. Kwiatkowski, supra, the impugned pleading of "fraudulent misrepresentation" was an unauthorized and uninstructed plea, and the solicitor has "in effect" refused, certainly failed to come in pursuant to leave granted to her for the purpose and meet the prima facie finding of liability under the guise of solicitor/client privilege, which for the reasons enunciated, supra, I am satisfied do not exist in the present circumstances so as to prevent her from so doing, I am prepared to draw the inference, and do, that if the respondent solicitor, by way of viva voce evidence, or otherwise, had come in, her evidence would probably not have assisted her in the matter.

In the circumstances, reaffirming the principles enunciated in the numerous authorities referred to by me at pages 575 and 576 of Royal Bank v. Kwiatkowski, supra, and reiterating again that it is most improper for a solicitor, without any foundation or instructions therefor, to allege fraudulent misrepresentation, and thereby place the bank in the position of having its counsel prepare therefor, and thereby lengthened this trial, and caused this application, such a plea must, in the particular circumstances be categorized as, inter alia, a gross dereliction of the respondent solicitor's duty to the litigants, particularly the applicant bank, and the court.