DATE: 20060928

DOCKET: C44911

COURT OF APPEAL FOR ONTARIO

RE:

BEAMENT GREEN (Applicant/Respondent) v. PAUL BURKE and MARILYN POWER-BURKE (Respondents/Appellants)

BEFORE:

DOHERTY, SIMMONS and ROULEAU JJ.A.

COUNSEL:

Christopher A. Moore

for the respondents/appellants

John Read

for the applicant/respondent

HEARD & ENDORSED:

September 26, 2006

On appeal from the judgment of Justice David L. McWilliam of the Superior Court of Justice dated February 3, 2006.

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

[1] This application required an interpretation of a contingency agreement entered into between the appellants and respondent law firm.

[2] The agreement provided in part that the firm was entitled to a legal fee “which shall be twenty-two percent (22%) of the total value of any settlement or judgment … plus all costs awarded and recovered …”.

[3] The litigation was settled on the basis of a $290,000 payment. The settlement made no reference to any costs and did not breakdown the settlement. Pursuant to the settlement, the action was dismissed.

[4] The application judge agreed with counsel for the appellant that the word “award” referred to a judicial award. He went on, however, to hold that the word “recover” could include an amount contained in a settlement. Unfortunately, the trial judge misread the agreement as saying “all costs awarded or recovered”. As quoted above, the agreement provided that the costs had to be “awarded and recovered.”

[5] On a proper reading of the relevant words in the agreement and interpreting the word “award” as the application judge did, the reference to “costs awarded and recovered” must refer to costs awarded in a judgment and subsequently recovered not costs fixed as part of a settlement amount.

[6] On a proper reading of the agreement, the law firm is entitled to twenty-two percent of $290,000 ($63,800). Counsel for the appellant conceded that his client is not entitled to any deduction from $63,800 on account of the claim for vehicle repairs.

[7] We doubt that the application judge had the power under the Solicitors Act to increase the amount owed to the law firm pursuant to the agreement on the basis that the amount owed under the agreement is unfair and unreasonably low. In any event, there are no grounds for doing so here.

[8] The appeal is allowed. The order below is varied in accordance with these reasons. Costs of the appellant on the application fixed at $10,000. Costs of the appellant in the appeal fixed at $5,500. All costs inclusive of GST and disbursements.