COURT OF APPEAL FOR ONTARIO

CITATION: National Fire Adjustment Co., Inc. v. Hanna, 2015 ONCA 874

DATE: 20151210

DOCKET: C60262

Sharpe, Cronk and Miller JJ.A.

BETWEEN

National Fire Adjustment Co., Inc.

Plaintiff

(Respondent)

and

Shafek Hanna, Wanderleida Assuncao,

State Farm Fire and Casualty Company,

Rolf Piehler and Boghosian & Associates

Professional Corporation

Defendants

(Appellants)

William C. McDowell and Katie Pentney, for the appellants

Duncan M. MacFarlane Q.C., for the respondent

Heard and released orally: December 4, 2015

On appeal from the judgment of Justice Catrina D. Braid of the Superior Court of Justice, dated March 6, 2015.

ENDORSEMENT

[1] This appeal relates to a solicitor’s undertaking. The appellant solicitor had represented a client on a mortgage. The client subsequently claimed on an insurance policy as a result of a fire. The client retained the respondent as its agent to assist in collecting the insurance proceeds. The respondent agreed to do so on the basis that it would recover a percentage of the proceeds as its fee. The client accepted those terms and gave a direction to its insurer that the proceeds were to be paid to the respondent. Despite that direction, proceeds were paid to other parties and in some instances insurance cheques were made payable to multiple payees. This gave rise to a problem in clearing the cheques. To resolve the problem, the appellant solicitor agreed to have the insurance cheques made payable to it in trust.

[2] The contentious undertaking was given in an email sent by the solicitor to a representative of the respondent, the relevant portion of which read as follows:

Please make enquiries with [the representative of the insurer] as to what documentation he will be able to arrange for the next round of State Farm cheques to be made payable to Boghosian & Associates in trust in respect of non-building claims…

I will provide NFA with a formal undertaking to protect your fee.

[3] The appellants make two submissions:

(i) that the undertaking related only to a single payment made by the insurer at the time the email was sent and not to any subsequent payments; and

(ii) that the undertaking was given by the appellant solicitor on behalf of his client and not in his personal capacity.

[4] The motion judge rejected those submissions.

[5] We do not agree that the motion judge made any palpable and overriding error of fact or any error of law in coming to that conclusion.

[6] In our view, when the email containing the undertaking is read in the light of the factual matrix that existed at the time, it was entirely open to the motion judge to read it as extending to future payments. As the motion judge noted in her reasons, the context of this email and undertaking is important. There were issues with clearing the cheques. By having the cheques deposited into the appellants’ trust account, those issues were resolved in a manner satisfactory to the respondent. We see no basis upon which this court could or should interfere with the central finding of the motion judge, namely:

On a plain and ordinary reading of the undertaking it is clear that the meaning and purpose of the undertaking was to protect NFA’s fees in their entirety.

[7] We also agree with the motion judge’s finding that had the appellant solicitor wished to limit the undertaking to one payment, it was incumbent upon him to do so expressly.

[8] With respect to the second point, to the extent that there is any ambiguity, an undertaking is deemed to be that of the solicitor personally: see Hudson v. Foster, 2010 ONSC 3417 and the Rules of Professional Conduct: 5.1–6, Commentary [0.1], which states:

Unless clearly qualified, the lawyer’s undertaking is a personal promise and responsibility.

[9] For these reasons, the appeal is dismissed.

[10] Costs of the appeal to the respondent in the amount of $5211.14, inclusive of disbursements and taxes.

“Robert J. Sharpe J.A.”

“E.A. Cronk J.A.”

“B.W. Miller J.A.”