Matthew Joseph Frontini

The defendants, Medi-Promotions Inc. and PrintPad (2009) Inc., moved to stay the action for want of territorial and subject-matter jurisdiction and to strike the claim as an abuse of process.

Defendant Marktech Services Inc. also moved to strike portions of the Statement of Claim.

The court dismissed the motions to stay and to strike for abuse of process, finding a real and substantial connection to Ontario and that Ontario was the convenient forum.

However, the court granted the motion to strike specific portions of the Statement of Claim, including the tracing claim against Marktech and the fraudulent activities and bad faith allegations against all moving defendants, due to insufficient material facts and lack of specificity, but granted the plaintiffs leave to amend.

The appellant law firm appealed the dismissal of its application under s. 23 of the Solicitors Act to enforce written retainer agreements for unpaid legal fees.

The application judge had ruled that the firm could only enforce its retainer via an assessment.

The Divisional Court dismissed the appeal but clarified the law, holding that simple or usual written fee agreements do not fall within the scope of s. 16(1) of the Act.

Consequently, they are not subject to the requirement for assessment under s. 17 or the prohibition against commencing an action under s. 23.

Lawyers may commence an action to recover fees under such agreements, though clients retain the right to request an assessment.

A law firm brought an application under section 23 of the Solicitors Act seeking an order for the payment of outstanding legal accounts.

The client had not challenged the validity or effect of the retainer agreement itself, but simply had not paid the accounts.

The Superior Court dismissed the application, holding that sections 23 and 24 of the Act do not permit a solicitor to bypass the standard assessment process to collect unpaid accounts where the underlying retainer agreement is not in dispute.