Andrew L. Mercer

The plaintiffs moved for summary judgment seeking a declaration that the defendant insurance broker held $475,000 in trust for them.

The funds had been wired by the plaintiffs in support of an application to establish a captive insurance company, but were returned to the defendant after the application failed.

The defendant attempted to retain the funds as an equitable set-off against the substantial debts of a third-party company, mistakenly believing the funds belonged to that third party.

The court found that the funds belonged solely to the plaintiffs and that the defendant failed to establish any basis for equitable set-off.

The motion was granted and the funds were ordered returned.

The applicant law firm, Thomas Gold Pettingill LLP, applied for a declaration regarding $61,351.64 held in trust from a settlement, which was claimed by both the respondent former client, Ani-Wall, and the respondent former law firm, Cassels Brock.

The funds represented an unpaid legal account.

The court found that while the applicant lawyer breached a personal undertaking and could not unilaterally bind the client to an equitable assignment, the former law firm was entitled to a charging lien over the funds.

The court held that the charging lien was not subject to a limitation period, unlike the underlying contract claim.

The court ordered the funds to be subject to the charging lien but allowed the former client to seek an assessment of the accounts due to special circumstances.