DATE: 20010119

DOCKET: C34004

COURT OF APPEAL FOR ONTARIO

RE: MICHAEL KHANNA (Plaintiff/Appellant) v. JAMES W.W. NEEB (Defendant/Respondent)

BEFORE: GOUDGE, MACPHERSON AND SIMMONS JJ.A.

COUNSEL: Michael B. Miller for the appellant Roger M. Hunt for the respondent

HEARD: January 17, 2001

RELEASED ORALLY: January 17, 2001

On appeal from the order of Justice Donald Taliano dated March 22, 2000.

E N D O R S E M E N T

[1] This an appeal by the plaintiff from the order of Taliano J. dated March 22, 2000 dismissing the plaintiff's motion for summary judgment.

[2] The appellant sought a declaration that his liability to his solicitor was limited to $2,5000 per month for each month that the solicitor worked for him. The solicitor says that there is no such limit to the solicitor-client agreement.

[3] There is a clear conflict between the positions of the solicitor and the client. The issue will turn on the interpretation of the relevant documents and, importantly, on the credibility of the appellant and the respondent. These are matters for an assessment judge to consider. It cannot be resolved on a summary judgment motion.

[4] The appeal is dismissed. The matter is to proceed before the assessment judge where the issue will be whether the solicitor-client agreement was limited to $2,500 per month or whether the solicitor was to be paid on a regular fee for service basis. With respect to this issue, the decision of this court in Plater v. Arenson (1999), 175 D.L.R. (4th) 102 (C.A.) is not relevant. Plater dealt with special circumstances, not the simple fee for service retainer.

(signed) "S.T. Goudge J.A."

(signed) "J.C. MacPherson J.A."

(signed) "J.M. Simmons"