L'Abbee v. Denis, 2008 ONCA 328

Court of Appeal for Ontario

Citation: L'Abbee v. Denis, 2008 ONCA 328 Date: 2008-04-29 Docket: C47369

Between:

Helene L'Abbee, Andre Lalonde, Paul Mercier, Denis Faubert, Linda Arsenault, Diane Belanger-Brisson, Pierrette Gouin, Pascal Laliberte, Mike Murphy and The Association of Employees of the University of Ottawa Respondents (Applicants)

and

Jean Carl Denis Appellant (Respondent)

Before: Cronk, Armstrong and LaForme JJ.A.

Counsel: Jean Carl Denis, in person R. Mitchell Rowe, for the respondent

Heard and released orally: April 23, 2008 On appeal from the order of Justice A. Roy of the Superior Court of Justice dated June 6, 2007.

Endorsement

1The appellant, Jean Carl Denis, appeals on several grounds from the order of the application judge dated June 6, 2007 reopening an agreement between the parties dated June 21, 2005, referring those of the appellant’s accounts that were submitted to the respondents after June 2005 to assessment, and awarding the respondents their costs of the application on a full indemnity basis, in the total amount of $12,000.

2We see no error in the application judge’s decision to refer the appellant’s accounts rendered after June 2005 to assessment under s. 25 of the Solicitors Act, R.S.O. 1990, c. S.15. We are satisfied that the written document relied on by the appellant as creating an express trust arrangement did not give rise to a valid trust.

3As the application judge observed, the document in question is “very confusing and uncertain”. It speaks variously of a trust, a “trust partnership” and a “joint venture trust partnership agreement”. This language does not assist in ascertaining the intent of the parties with any degree of certainty.

4While the appellant is described in the document as both a “settlor” and a “trustee”, he did not sign the document (although he appears to have affixed his notarial seal and notarial signature to the document) and, more importantly, no property appears to have been settled on the alleged trust by the appellant or any other person. The appellant did not contribute property to the alleged trust, in respect of which he no longer had an interest, to be held for the benefit of named beneficiaries.

5Thus, neither certainty of intention to create a trust, nor certainty of subject matter were established. Consequently, the document did not effectively constitute a trust. To this extent, we agree with the application judge that “whatever [the] intent or purpose [of the document]”, it is not accomplished…”

6It is also significant that, on the record before the application judge, the respondents neither received independent legal advice concerning the “declaration of trust” drafted by the appellant, nor were they advised by him of their right to do so.

7In essence, the appellant maintains that, for the most part, the services rendered by him to the respondents were in the nature of management consulting and/or industrial relations services, rather than legal services. However, contrary to this submission, the appellant’s own written explanation of his accounts as provided to the respondents expressly refers to the provision of legal services.

8In all these special circumstances, it was open to the application judge to refer certain of the appellant’s accounts for assessment under the Solicitors Act in order that those of the appellant’s accounts that concerned services of a legal nature might be assessed.

9The appeal, therefore, is dismissed. The respondents are entitled to their costs of this appeal, fixed in the total amount of $7,500, inclusive of disbursements and GST.