Court of Appeal for Ontario

Date: 2017-09-28

Docket: M48284 & M48317 (C61429)

Judge: Brown J.A. (In Chambers)

Between

Matthew Weenen Plaintiff (Respondent/Responding Party)

and

Graziano Biadi Defendant (Appellant/Responding Party)

Counsel

Alex Cameron and Anastasia Reklitis, for the moving party, Fasken Martineau DuMoulin LLP

Yan David Payne, for the responding party, Matthew Weenen

Heard: September 21, 2017

Endorsement

[1] The moving party Solicitor, Fasken Martineau DuMolin LLP, moves under s. 34(1) of the Solicitors Act, R.S.O. 1990, c. S.15, for an order charging the damages and costs awarded to the responding party Client, Matthew Weenen, at the trial of this action (2015 ONSC 6832) and on appeal (2017 ONCA 533).

[2] The fees the Solicitor alleges remain outstanding total about $360,000, consisting of fees and disbursements incurred for both the trial and appeal. The Client has initiated assessment proceedings against the Solicitor.

[3] Section 34(1) of the Solicitors Act reads as follows:

Where a solicitor has been employed to prosecute or defend a proceeding in the Superior Court of Justice, the court may, on motion, declare the solicitor to be entitled to a charge on the property recovered or preserved through the instrumentality of the solicitor for the solicitor's fees, costs, charges and disbursements in the proceeding.

[4] The language of the section speaks only about proceedings in the Superior Court of Justice. Ground J., at para. 12 of Budinsky v. The Breakers East Inc., [1993] O.J. No. 1984, 106 D.L.R. (4th) 370 (Gen. Div.), wrote:

In my view, s. 34(1) of the Solicitors Act must be interpreted as statutory authority only for the Ontario Court of Justice (General Division) granting a charge on solicitors' fees, costs, charges and disbursements incurred in proceedings before the Ontario Court of Justice (General Division).

[5] At the commencement of the motion, I asked Solicitor's counsel whether he had any authority from this court on two questions:

(i) Wherein lies the jurisdiction of the Ontario Court of Appeal to grant a charging order to secure solicitor's fees?

(ii) If there is such jurisdiction, is it limited only to granting a charging order in respect of fees and disbursements incurred in appeal proceedings before this court, or can this court also grant a charging order in respect of fees and disbursements incurred below in the Superior Court of Justice?

[6] Counsel was not able to refer to any authority.

[7] Client's counsel included in his authorities the decision of this court in Kushnir v. Lowry, [2003] O.J. No. 4093 (C.A.), in which a panel of this court refused to grant a charging order. The brief endorsement did not discuss the issue of jurisdiction.

[8] My uncertainty about this court's jurisdiction, coupled with the practical need to determine a question relevant to both solicitors and clients, leads me to adjourn this motion to a panel of this court: Courts of Justice Act, R.S.O. 1990, c. C.43, s. 7(4). I think a question of jurisdiction is best decided by a panel, not a single judge sitting in Chambers.

[9] I therefore adjourn this motion for a charging order to a panel.

[10] Given the confidential nature of much of the material filed on this motion, I order the materials already filed, together with any further materials filed on the motion, to be sealed.

[11] Any costs of today's attendance are reserved to the panel hearing the motion.

"David Brown J.A."