Court of Appeal for Ontario

CITATION: Doe v. MacDonald, 2016 ONCA 319

DATE: 20160429

DOCKET: C60991

BEFORE: Doherty, MacPherson and Miller JJ.A.

BETWEEN

John Doe

Applicant (Respondent)

and

Andrew J. MacDonald and The Barristers Group

Respondents (Appellants)

COUNSEL:

Andrew J. MacDonald, for the appellants

Greg Frenette and Jessica Lam, for the respondent

HEARD: April 27, 2016

On appeal from the judgment of Justice Mario D. Faieta of the Superior Court of Justice, dated August 10, 2015.

ENDORSEMENT

[1] This dispute over a lawyer’s retainer is an unfortunate ending to what was, up to that point, a tremendous success story: a lawyer providing excellent service to a client of limited means and difficult expectations, and achieving an extraordinary result. The appellants represented the respondent in an action against the respondent’s veterinarian, arising out of the death of the respondent’s service dog while under the veterinarian’s care. The appeal is from a judgment finding that the appellants’ services were rendered on a pro bono basis, and ordering the appellants to repay funds from the respondent that were improperly applied to legal fees instead of disbursements. This appeal turns mainly on the terms of the respondent’s retainer with the appellants.

[2] For the reasons that follow, we would dismiss the appeal.

[3] After the settlement of the respondent’s action, the appellants rendered their account to the respondent, who had understood that the appellants were acting pro bono. The respondent objected to the account and brought it for assessment before an Assessment Officer. The Assessment Officer adjourned the proceeding sine die, on the basis that the retainer itself was disputed, and not simply the reasonableness of the account. The respondent then brought an application in the Superior Court seeking a declaration that the appellants had agreed to act pro bono, without charging legal fees.

[4] The appellants appeal on four grounds: (1) the order for assessment initiated by the respondent is an impediment to the application; (2) the application judge erred in allowing the proceeding to be brought by way of application or in not ordering a trial of an issue; (3) the application judge erred in law in defining the scope of a pro bono retainer, and (4) the application judge’s conduct raised a reasonable apprehension of bias.

[5] We would not give effect to any of these submissions.

[6] First, it was not necessary for the respondent to move to set aside the assessment order before proceeding in the Superior Court. The assessment was adjourned by the Assessment Officer precisely to enable the respondent to bring the matter for adjudication in the Superior Court, which is the appropriate venue where the nature of a retainer is in dispute. The fact that the respondent initially proceeded by mistake in the wrong forum does not constitute an admission that the retainer was not in dispute. Neither is taking a corrective measure to bring the matter to the appropriate forum “tantamount to an abuse of process” as the appellants submit.

[7] Second, it was appropriate to proceed by way of application in this matter. There were no factual issues essential to evaluating the claim that could not be determined through the evidence provided. In fact, the reasons of the application judge were largely supported by the evidence of the appellant, Mr. MacDonald.

[8] Significantly, the appellants did not at any time object to the matter proceeding by way of application. They filed affidavits and cross-examined on the respondent’s affidavit. Although Mr. MacDonald, towards the end of his submissions at the hearing of the application, floated the idea of a trial of an issue to determine the nature of the retainer, neither side pressed for a trial of an issue.

[9] Third, the application judge made no error of law with respect to the issue of whether the appellants agreed to act for the respondent on a pro bono basis. The issue was not, as the appellants would have it, that the application judge erred by holding that pro bono counsel may never receive fees. The application judge made no such error. The issue, rather, is a factual one: did the appellants make fee arrangements with the respondent that required the respondent to pay legal fees? The application judge found that they did not. This finding was amply supported by the record, is entitled to deference, and we would not interfere with it. As the application judge stated, where there is doubt or ambiguity about the terms of the retainer, the doubt or ambiguity is to be resolved in favour of the client. The appellants had eight years in which to confirm in writing their understanding of the retainer, and failed to do so.

[10] Fourth, a review of the transcript does not provide support to the appellants’ argument that the conduct of the application judge raised a reasonable apprehension of bias against the appellants. The application judge was incorrect to require Mr. MacDonald to gown when he was appearing as a self-represented litigant rather than as counsel, but it is far-fetched to suggest that this interaction somehow tainted the rest of the hearing. We would not give effect to this submission.

Disposition:

[11] The appeal is dismissed. Costs are payable by the appellants to the respondent in the amount of $5,580.00, including disbursements and HST.

“Doherty J.A.”

“J.C. MacPherson J.A.”

“B.W. Miller J.A.”