Allen J. Wynperle

The applicant successfully challenged a contingency fee agreement with her former lawyers, resulting in the agreement being declared void and an order for the assessment of the lawyers' accounts.

The respondents' subsequent motion to reopen the application was dismissed.

In this costs decision, the court awarded the applicant costs of the application on a partial indemnity basis and costs of the motion on a substantial indemnity basis, noting the respondents' aggressive opposition and unfounded allegations of dishonesty.

The applicant challenged contingency fees charged by her former personal injury lawyers in relation to a tort settlement and an accident benefits settlement arising from a motor vehicle accident.

The court found special circumstances under the Solicitors Act, including non-compliance with the statutory and regulatory requirements governing contingency fee agreements, material drafting errors, failure to provide the client with a copy of the agreement, and lack of clarity about when accident benefits fees would increase from 15% to 30%.

Applying the fairness and reasonableness analysis for contingency fee retainers, the court held the agreement was unenforceable and ordered an assessment of the lawyers' fees, charges, and disbursements.

Pending assessment, the court ordered immediate repayment of half of the fees charged on the accident benefits settlement, with HST and interest, but declined immediate repayment on the tort file.