Sun v. Pomes, 2013 ONSC 508

Background

1This is a judicial appeal of an order made by Allen J. The order required Bennett Jones, the lawyers acting for the defendants in the main action, to pay the $28,815 costs award to Mr. Khan instead of to Dr. Sun. The order also required Dr. Sun to pay $390 to Mr. Khan to receive the solicitor’s file and created a lien in Mr. Khan’s favour for one-third of any future settlement or judgment.

2Leave to appeal was granted by Aston J. on three grounds:

(i) Dr. Sun gave sworn evidence that he never received the motion material until the day of the hearing of the motion;

(ii) Section 28.1(8) of the Solicitor’s Act provides that the contingency fee agreement shall not include in the fee payable any amount arising as a result of an award of costs unless the solicitor and client jointly apply for court approval; and,

(iii) The record is clear that any issues other than Mr. Khan’s removal as solicitor of record were not addressed at the hearing of the motion and Dr. Sun had no opportunity to address these other issues in court.

Analysis

3Although Mr. Khan did not file a factum, he conceded that he did not serve the motion in accordance with the Rules and that he and Mr. Khan had not made a joint application for approval of the contingency fee agreement.

4We therefore allow the appeal on the following grounds:

(i) Dr. Sun was not properly served with the motion;

(ii) There was no joint application for approval of the contingency fee agreement; and

(iii) Dr. Sun did not have an opportunity to address the issues at the hearing of the motion.

Disposition

5The appeal is therefore allowed. Paragraph 2, 3 and 4 of the Order of Allen J. are set aside and any payments made to Mr. Khan pursuant to the order should be paid to Dr. Sun forthwith.

6On behalf of the panel, I have endorsed the back of the Appeal Book and Compendium: For oral reasons given today, the appeal is allowed. Paragraphs 2, 3 and 4 of the Order of Allen J. dated November 21, 2011 are set aside and any payments made to Mr. Khan pursuant to the Order should be paid to Dr. Sun forthwith. The lien ordered under paragraph 4 is discharged and the file should be returned. Costs are awarded to Dr. Sun in the amount of $250.