COURT OF APPEAL FOR ONTARIO

DATE: 20031022

DOCKET: C39210

RE: LORRI KUSHNIR (Petitioner) Appellant: McCarthy Tétrault LLP – and – DAVID K. LOWRY (Respondent)

BEFORE: MCMURTRY C.J.O., SIMMONS and GILLESE JJ.A.

COUNSEL: Diana Solomon for the appellant, McCarthy Tétrault Jeffrey Kaufman and Alexis Kerr for the respondent Lorri Kushnir

HEARD: October 10, 2003

E N D O R S E M E N T

[1] On this appeal, McCarthy Tétrault asks this court to make a charging order over certain assets belonging to the respondent.

[2] In our view, the law firm is not entitled to such a lien. The facts in this case do not support a finding that the law firm’s services, which included obtaining a non-depletion order, were instrumental in obtaining the funds ultimately recovered. Instrumentality is required to support a charging order. See Higgott and Higgott (1989), 38 C.P.C. (2d) 42 and Blue Resources Ltd. v. Sheriff (1996), 97 C.P.C. (3d) 200. Moreover, there is no evidence that the respondent cannot or will not pay the account. In fact, she has confirmed that she has sufficient assets to satisfy the assessment award and has undertaken to pay the award within thirty days after the assessment.

[3] Accordingly, the McCarthy Tétrault appeal is dismissed. Costs to the respondent fixed in the amount of $1,500.

“R.R. McMurtry C.J.O.”

“J.M. Simmons J.A.”

“E.E. Gillese J.A.”