Court of Appeal for Ontario

Date: 2022-01-17 Docket: C69075

Huscroft, Trotter and Coroza JJ.A.

Between:

Theall Group LLP Applicant (Respondent in Appeal)

and

Michelle Bauer Respondent (Appellant)

Counsel: Barnet Goldberg, for the appellant Catherine Francis, for the respondent

Heard: January 11, 2022 by video conference

On appeal from the judgment of Justice Grant R. Dow of the Superior Court of Justice, dated December 30, 2020, with reasons at 2020 ONSC 7161.

Reasons for Decision

[1] The appellant appeals the granting of a charge against her property under s. 34(1) of the Solicitors Act, R.S.O. 1990, c. S.15. It was conceded that the first two steps of the well-established test for ordering a statutory charge were met: the property exists and was recovered or preserved through the instrumentality of the solicitor. The application judge found that the third step was also satisfied: the appellant was unable or unwilling to pay the respondent’s fees. Indeed, he found that the appellant’s behaviour “completely contradicts” her willingness to pay.

[2] It is clear from his decision that the application judge considered the surrounding circumstances in deciding to impose the charge. He found that the appellant was disputing the respondent’s retainer and contesting efforts to quantify the amount owing to it, while the equity in the property was eroding rapidly. The application judge considered and rejected the appellant’s submission that the respondent should be limited to recovery based on her interpretation of the supplementary retainer agreement – which, we note, specifically contemplated the respondent’s right to obtain a charge.

[3] In summary, we see no error in the application judge’s finding, let alone a palpable and overriding error that would allow this court to intervene on appeal. The application judge’s discretionary decision to impose the charge is amply supported by the record and is entitled to deference.

[4] Finally, the application judge did not “improperly enhance” the respondent’s security by granting the charge when a certificate of pending litigation was in place. The appellant made no attempt to discharge the certificate prior to the application, and no cross-application or motion was before the application judge. In any event, the certificate provided notice and did not establish an interest or right in the property.

[5] The appeal is dismissed. The respondent is entitled to $12,000 in costs, all inclusive.

“Grant Huscroft J.A.”

“Gary Trotter J.A.”

“S. Coroza J.A.”