DATE: 20040507

DOCKET: C39276

COURT OF APPEAL FOR ONTARIO

RE:

RYE AND PARTNERS (Plaintiff) (Respondent) – and – 1041977 ONTARIO INC., 10922815 ONTARIO INC., 1228854 ONTARIO INC., VITOMAURO, DAVID BODANIS and BRUNO CIAMPA (Defendants) (Appellant)

BEFORE:

LABROSSE, WEILER and CHARRON JJ.A.

COUNSEL:

John Paul Evans

for the appellant

Robert A. Spence and Nishanti Rukmali de Zoysa

for the respondent

HEARD & ENDORSED:

May 4, 2004

On appeal from the judgment of Justice Keith A. Hoilett of the Superior Court of Justice dated November 26, 2002.

A P P E A L B O O K E N D O R S E M E N T

[1] The main issue on this appeal is whether the trial judge erred in concluding that Mauro retained Rye and Partners to act for him as a solicitor. Mauro never entered into a written retainer. On the issue of whether there was an oral retainer, Mauro submits that the trial judge made an error when assessing his evidence. The trial judge said Mauro’s evidence wasn’t credible because he feigned a lack of interest in the work the solicitor was doing on Mauro’s behalf.

[2] The trial judge correctly noted in his reasons that when a solicitor fails to reduce to writing the terms of his or her retainer and a dispute arises, there is a heavy onus on the solicitor to establish a retainer. He was satisfied that that onus was met. The trial judge committed no palpable and overriding error. There are a number of evidentiary factors that support his conclusion.

[3] A subsidiary issue raised for the first time on appeal is that any retainer must be in writing. We do not agree with the submission that if there was an oral retainer, it is void unless in writing. We are not dealing with a dispute of an agreement relating to compensation under the Solicitors Act. There is no dispute here as to the amount of compensation. The issue is whether the solicitor was retained and she was.

[4] Costs to the respondent fixed as agreed in the amount of $11,000 inclusive of GST and disbursements.