Court of Appeal for Ontario

Citation: Roach v. Oniel, 2007 ONCA 688

Date: 2007-10-10

Docket: C46896

Before: Rosenberg, Cronk and Lang JJ.A.

Between:

Charles C. Roach Appellant (Plaintiff)

and

Michael Oniel and Legal Aid Ontario Respondent (Defendant)

Counsel:

Charles C. Roach in person

Michael Oniel in person

Heard and released orally: October 4, 2007

On appeal and cross-appeal from the order of Justice B. Wright of the Superior Court of Justice dated March 28, 2006.

Endorsement

[1] Although the appellant advanced several causes of action against the respondent, at trial his claims essentially concerned only two matters. First, he sought to recover from the respondent part of the funds eventually received by the respondent under a settlement with the City of Toronto, to the extent that those funds exceeded the amounts owed by the respondent to Legal Aid Ontario. Second, the appellant sought recovery of monies allegedly owed to him by the respondent for legal services said to have been rendered by the appellant outside the parameters of legal aid certificates granted to him in respect of his representation of the respondent.

[2] In our view, the trial judge properly rejected these claims and dismissed the appellant’s action.

[3] The appellant does not dispute that all costs ordered by a court to be paid to an individual who has received legal aid services are the property of Legal Aid Ontario and are to be paid to Legal Aid Ontario: see s. 46(4) of the Legal Aid Services Act, 1998, S.O. 1998, c. 26. In addition, s. 95(1) of the Act states: “Except in accordance with this Act, no person shall take or receive any payment or other benefit in respect of any legal aid services provided by the person under this Act”.

[4] The funds at issue on the first branch of the appellant’s claims relate to costs recovered by the respondent under a settlement with the City of Toronto. Legal Aid Ontario was eventually paid the sums owed to it from these settlement funds. The costs recovered were the property of Legal Aid Ontario and could be dealt with by it as it thought appropriate in the exercise of its discretion. On the record before the trial judge, there was no evidence of an agreement or other documentation confirming the appellant’s assertion that the respondent had agreed to pay him any surplus funds recovered by the respondent over and above what was owed to Legal Aid Ontario.

[5] Moreover, as the trial judge noted, the appellant failed to require the respondent to execute a written direction on any of the issued legal aid certificates. After the fact, the appellant attempted to get the respondent to execute a written direction, but the respondent refused. As a result, the appellant had no protection for any cost payment in which he may have had an interest.

[6] In these circumstances, we see no error in the trial judge’s decision that the first branch of the appellant’s claims, could not, as a matter of law, succeed. Thus, there would have been no purpose served by permitting the appellant to lead further evidence or to advance additional legal argument at trial regarding this issue.

[7] The second branch of the appellant’s claims concerns payment for services allegedly rendered that were not covered by Legal Aid Ontario. At trial, the appellant indicated that the amount at issue was $9,000. However, following an unsuccessful mistrial motion, the appellant informed the trial judge that he declined to proceed at trial on this issue. Instead, the appellant withdrew from the trial without seeking to lead further evidence in support of this claim.

[8] Consequently, the trial judge was left with no alternative but to dismiss the appellant’s claim for compensation for services allegedly rendered outside the legal aid certificates granted. The appellant failed to prove this claim or to establish that funds were owed to him pursuant to an agreement with the respondent for compensation beyond the payments made by Legal Aid Ontario.

[9] For the reasons given, the appeal is therefore dismissed.

[10] The respondent cross-appeals for his costs of the trial. The trial judge declined to award costs in his favour. In the light of the history of this matter, including the documentation filed at trial by the appellant, we see no basis for interfering with the trial judge’s costs disposition. The cross-appeal, therefore, is also dismissed.

[11] The respondent, however, is entitled to his costs of the appeal, fixed in the total amount of $1,227, inclusive of disbursements and G.S.T., as sought by the respondent. We award no costs of the cross-appeal.

“M. Rosenberg J.A.”

“E.A. Cronk J.A.”

“S.E. Lang J.A.”