Court File and Parties

CITATION: Sun v. Pomes, 2012 ONSC 3031

DIVISIONAL COURT FILE NO.: 61/12

DATE: 2012-05-23

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Jia Ke Sun, Plaintiff and Moving Party

AND:

Dr. Regis Pomes and Hospital for Sick Children, Defendants

AND:

Altaf Khan, Respondent on Motion

BEFORE: Aston J.

COUNSEL: Jia Ke Sun, Personally No one appearing for Altaf M. Khan

HEARD: May 22, 2012

ENDORSEMENT

[1] Dr. Sun brings this motion to extend the time for appealing the order of Allen J. dated November 21, 2011 and, if necessary, leave to appeal that order under Rule 62.02 of the Rules of Civil Procedure. The order was made in the Superior Court of Justice proceeding in which Dr. Sun is the plaintiff and Dr. Pomes and the Hospital for Sick Children are named as defendants, but the order in question relates to a dispute between Dr. Sun and his former solicitor Altaf Khan. When Dr. Sun brought a motion to add a defendant in the Superior Court of Justice proceeding, solicitor Khan brought a motion the same day to be removed as Dr. Sun’s solicitor of record. It is on that motion that Justice Allen made the order Dr. Sun now wishes to challenge.

[2] Paragraph 1 of the order of November 21, 2011 removes Mr. Khan as Dr. Sun’s lawyer of record. Dr. Sun does not dispute that provision of the order but does dispute the three other provisions:

(i) requiring the Bennett Jones law firm (acting for the defendants) to reissue a cheque for $28,815 (to satisfy a costs award in the action) drawn in favour of Dr. Sun and ordering that a new cheque be drawn in favour of solicitor Khan;

(ii) ordering Dr. Sun to pay an additional $390 to solicitor Khan in order to receive delivery of the solicitor’s file; and

(iii) “that the court file be charged for a solicitor’s lien for one-third of the amount against any settlement or judgment”.

[3] It is not clear to me that the order of November 21, 2011 is interlocutory in nature. Dr. Sun may have an appeal to the Divisional Court as of right under s. 19(1)(a) of the Courts of Justice Act. However, even if, as between Dr. Sun and solicitor Khan, this is an interlocutory order, it is clear to me that leave to appeal to the Divisional Court ought to be granted for the reasons which follow.

[4] Similarly, it is not clear that Dr. Sun actually requires an extension of time for appeal. Though the order was made in court in Dr. Sun’s presence on November 21, 2011, the formal order was apparently only issued and sent to him January 16, 2012 and his original Notice of Appeal is dated February 14, 2012. Rule 15.05(b) provides that Mr. Khan remains the lawyer of record until the order of November 21, 2011 has been entered, served on Dr. Sun, and on the defendants, and filed with proof of service on the client and every other party. There is no evidence that Mr. Khan has complied with Rule 15.05(b). In any event, for the reasons which follow this is clearly an appropriate case to extend the time for service of the Notice of Appeal, if necessary.

[5] Solicitor Khan did not appear on the hearing of this motion in the Divisional Court though he was advised by court staff last week that it would be heard on May 22nd. However, Mr. Khan did file a responding motion record and factum. The first point to be gleaned from his material is that he purports to have served his motion returnable November 21, 2011 (and the supporting material with that motion) by email dated Thursday, November 10, 2011. Service by email is not authorized by Rules 15.04(2) and 16.03. The defective service has never been validated.

[6] Dr. Sun’s sworn evidence is that he never received the motion material from Mr. Khan until the very day they were in court on November 21, 2011 and that, in fact, the copy of the Notice of Motion and supporting material was only handed to him in the courtroom by his lawyer after Allen J. had already made her decision on the motion.

[7] From the transcript, it is apparent that Justice Allen did have Mr. Khan’s motion before her but there is nothing in the transcript addressing the question of whether it had been served or when. It is quite significant that there is no reference whatsoever in the transcript of the hearing before Allen J. referring to any request by Mr. Khan except his request to be removed from the record. There is no reference to the $28,815 cheque nor to the $390 disbursement. There is a convoluted reference to the nature of the “irregular” retainer and s. 28.1(8) of the Solicitors Act by way of explanation as to why the motion was being brought before a judge rather than a Master. Solicitor Khan was at least suggesting that he had a contingency fee agreement with Dr. Sun that would require judicial approval under that section of the Solicitors Act. It is apparently based upon this that the order provides that “the court file be charged for a solicitor’s lien for one-third the amount against any settlement or judgment”, whatever that means.

[8] Dr. Sun was never asked for any submission on any of the issues which he now challenges in the order of November 21, 2011. Even if he had been served with the Notice of Motion and supporting material from Mr. Khan (which I find is highly unlikely given the transcript), it is clear that he was not afforded any opportunity to present facts or submissions on the disputed issues.

[9] It is significant that the handwritten endorsement by Allen J. (with respect to any issue between Dr. Sun and Mr. Khan) reads in its entirety as follows:

Mr. Khan seeks to be removed from the Record as solicitor for Mr. Sun. Mr. Sun has made a complaint against Mr. Khan to the LSUC and does wish to have Mr. Khan represent him any longer. This matter comes before a judge pursuant to s. 28(8)(b)[sic] of the Solicitors Act due to an irregularity in the legal retainer which includes a term as to costs. I grant Mr. Khan’s motion and adjourn Mr. Sun’s motion [vis a vis the defendants Pomes and the Hospital for Sick Children] … Order to issue removing Mr. Khan as solicitor of Record.

[10] It is clear from the last two pages of the transcript that after the motions judge had endorsed the record she was reminded by Mr. Khan that he had prepared a draft order. She apparently signed that order, which she had misplaced, without reading it. The order which she signed does not reflect the terms of her handwritten endorsement. There is nothing in the transcript of the entire hearing of the motion to indicate that she ever directed her mind to the question of having the $28,815 cheque reissued or to the provision for a payment of a $390 disbursement. Surely, if those matters had been raised for any discussion, Dr. Sun would have had submissions to make which might have included a request to file material of his own. On the Record, he was denied a fair opportunity to be heard on the matters he now challenges and by any measure, he was not afforded procedural fairness and there has been a breach of natural justice.

[11] That alone is sufficient to grant leave to appeal, if in fact this is an interlocutory order. But quite apart from that, Dr. Sun has met the test under Rule 62.02 because there is clearly reason to doubt the correctness of the order and it is important in the context of public confidence in the administration of justice.

[12] I have reviewed the motion record of Mr. Khan. It is quite obvious on its face that there is nothing contained in that record to establish a contingency fee agreement that would be enforceable under the Solicitors Act. In particular, the prescribed regulations for form, content and enforceability found in Ontario Regulation 195/04 “contingency fee agreements”, authorized and promulgated pursuant to s. 28.1(12) of the Solicitors Act, have not been met. Furthermore, the specific section of the Solicitors Act that Mr. Khan was trying to identify for Justice Allen, s. 28.1(8), only authorizes judicial approval of contingency fee agreements “arising as a result of an award of costs” (as is the case here) on a joint application to a judge by the solicitor and the client. A solicitor cannot unilaterally apply for approval. In short, s. 28.1(8) – incorrectly cited as s. 28(8)(b) in the handwritten endorsement – was a red herring.

[13] If I had the jurisdiction to set aside paragraphs 2, 3 and 4 of the order of November 21, 2011, I would do so because it is so clear that those provisions cannot stand up to scrutiny for the reasons I have outlined. In fairness to the motions judge, it seems from the transcript that she never directed her attention to those provisions in the formal order, which are not referred to during the course of the hearing or in her handwritten endorsement.

[14] An order is granted:

(i) extending the time for perfection of Dr. Sun’s appeal by 60 days from today’s date, if necessary; and

(ii) granting leave to appeal paragraphs 2, 3 and 4 of the order of Allen J. dated November 21, 2011, if necessary.

Aston J.

Date: May 23, 2012