ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-11-16296
DATE: 20151113
BETWEEN:
Nicola Anne Hanson also known as Nicola Dickinson-Hanson
Plaintiff and Moving Party
– and –
Allstate insurance Company of Canada
Defendant
Steven Pickard, for the Moving Party and Plaintiff
The defendant was not served and did not appear personally or through counsel
- and -
Luigi DiPierdomenico and DiPierdomenico Law Firm
Mikael Dalimonte, for the Responding Party
Responding Party
BONDY J.
A. BACKGROUND
[1] The moving party, Nicola Anne Hanson also known as Nicola Dickinson-Hanson ("Ms. Hanson"), retained the responding party, Luigi DiPierdomenico and DiPierdomenico Law Firm ("Mr. DiPierdomenico"), to sue the defendant, Allstate Insurance Company of Canada ("Allstate"), on its behalf. That litigation is ongoing.
[2] Mr. DiPierdomenico rendered three interim accounts. The first was on May 8, 2013 for an undisclosed amount. That bill was honoured by Ms. Hanson. Mr. DiPierdomenico issued a second bill dated November 25, 2013 in the amount of $8,908.01 all-inclusive. That account was honoured by Ms. Hanson. Mr. DiPierdomenico issued a third account on May 5, 2015 for $13,511.72. The solicitor then applied the balance of the cash retainer in trust in the amount of $1,528.95 to that bill. That left a balance owing of $9,722.77.
[3] The moving party professed an inability to pay the then outstanding balance of $9,722.77. As a result, an arrangement was made to allow her to pay $2,500 every two months against the bill. No payments were made.
[4] As a result, Mr. DiPierdomenico sought and, on September 22, 2015, obtained an order removing himself as counsel of record in the matter.
[5] The moving party has since retained Steven Pickard ("moving party’s counsel"). The moving party brought this motion requesting Mr. DiPierdomenico deliver the moving party’s file to him in order that he can continue with the action. Mr. DiPierdomenico refused claiming a solicitor’s lien.
B. ANALYSIS
[6] A solicitor has a common law lien over a client's file to secure payment of amounts due. That lien is codified at s. 6(6) of the Solicitors Act, R.S.O. 1990, c. S.15.
[7] The law is well settled that there are two distinct situations potentially giving rise to a lien. The first is where the client is discharged by the solicitor and the second is where the solicitor is discharged by the client.
[8] The distinction is that in the former the lawyer must deliver up the file solely for the purposes of the continuation of the lawsuit. To be clear, in these situations the solicitor’s lien continues, but it is subject to the use of the file by the new solicitor for purposes of continuation of the lawsuit. In the latter situation, the solicitor may retain the file until the fees are satisfied. See: Collison v. Hurst, 1946 310 (ON CA), [1946] O.W.N. 668, [1946] O.J. No. 212 at paras 6-7 (Ont. Supreme Ct. – Ct. of Appeal); 1271122 Ontario Inc. v. Shutam Canada Inc. (2003), 33 C.P.C. (5th) 366, [2003] O.J. No. 1638 (Ont. Sup. Ct.); and Appleton v. Hawes (1990), 46 C.P.C. (2d) 107, [1990] O.J. No. 2150 (Ont. C.J.).
[9] The reasons for the distinction are straightforward.
[10] Where a solicitor discharges a client, the interests of justice require that the file be delivered to the client in order that the litigation may be conducted with as much ease celerity and as little expense as possible. See: 1271122 Ontario Inc. at para 6; and Ley v. Brown (1857-1866), 1 Chy. Chrs. 179, [1857-1866] O.J. No. 566 (Upper Canada Court of Chancery). Otherwise, indigent and cashed strapped litigants would potentially be denied access to justice for reasons beyond their control.
[11] To the contrary, were a client entitled to change solicitors at will without paying fees as they come due, it would act as an inducement for clients to attempt to avoid fees by simply changing lawyers. See: 1271122 Ontario Inc. at para 25; Appleton; and Hughes v. Hughs [1958] All E.R. 179 at 180. To be clear, there are exceptions to that in general rule. As an example, there may be cases where a client can request that the file be transferred to a new solicitor based upon equitable principles in such cases where efforts have been made to discharge the financial obligation either in whole or in part or by posting security. See for example: 1271122 Ontario Inc. at para 24; and Maricic v. Stancer, Sidenberg (1992), 11 C.P.C. (3d) 89, [1992] O.J. No. 1540 (Ont. C.J.). As another example, where third parties are involved, the court may interfere with the exercise of the lien without actually nullifying it in order to accommodate the interests of the third parties. See: 1271122 Ontario Inc. at para 23; and Re Gladstone, 1971 500 (ON CA), [1972] 2 O.R. 127, [1971] O.J. No. 1881 (Ont. C.A.).
[12] In this case, it was Mr. DiPierdomenico who discharged the client. The reason was either an inability or an unwillingness of the moving party to pay the account. The moving party also disputes the reasonableness of the account. For reasons that were not clear, as of the date of this motion neither the lawyer nor the client has taken any steps to have the account assessed notwithstanding the passage of a significant amount of time.
[13] There is some urgency to the transfer of the file. On June 12, 2015, Mr. DiPierdomenico sent the moving party a letter outlining urgent steps including a motion for undertakings, a motion to strike the defence, a motion for summary judgment and complying with the timetable which requires the matter to be set down for trial by December 31, 2015.
[14] I find that for the reasons above, the lawyer must deliver up the file. That delivery is, however, solely for the purposes of the continuation of the lawsuit. Subject to that purpose, the lien should continue. There was nothing in the evidence or the arguments from counsel to suggest any applicable equitable or other principal that would yield a different result.
C. ORDER
[15] For the above reasons, order to go as follows:
- Steven Pickard, the solicitor for the moving party Nicola Anne Hanson also known as Nicola Dickinson-Hanson, shall provide an undertaking to the responding party Luigi DiPierdomenico and DiPierdomenico Law Firm as follows:
a) to preserve all documents delivered to him pursuant to this order in their present condition,
b) to return after final disposition of the matter, or at the termination of his retainer, whichever shall first occur, all such documents to the respondent,
c) to apply the fruits of any judgment or settlement firstly against the fees of the moving party Nicola Anne Hanson also known as Nicola Dickinson-Hanson after assessment of the same by either Luigi DiPierdomenico and DiPierdomenico Law Firm or by Nicola Anne Hanson also known as Nicola Dickinson-Hanson.
Upon such undertaking receiving the approval of the responding party Luigi DiPierdomenico and DiPierdomenico Law Firm or, failing that, the approval of this Court and the same being filed, all documents in the hands of the responding party Luigi DiPierdomenico and DiPierdomenico Law Firm relating to court file CV-11-16296 are to be delivered up to the moving party Nicola Anne Hanson also known as Nicola Dickinson-Hanson's solicitor.
Subject to the foregoing, the lien of Luigi DiPierdomenico and DiPierdomenico Law Firm continues.
D. COSTS
[16] In the event the parties are unable to reach an agreement as to costs on or before November 23, 2015, then:
The moving party’s counsel shall serve costs submissions and a "Cost Outline" as provided for in rule 57.01(6) (using Form 57(b)) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, upon the responding party’s counsel within fourteen (14) days. Such written argument shall be no more than three (3) pages in length. In the event the foregoing is not complied with within that time period, the moving party shall be deemed to have waived her right to do so.
The responding party’s counsel shall have a further ten (10) days to provide a response to counsel for the moving party. Such response is to be no more than three (3) pages in length. In the event the foregoing is not complied with within that time period, the responding party shall be deemed to have waived his right to do so.
Counsel for the moving party shall have five (5) further days to provide a reply to counsel for the responding party, and provide all the submissions to the court through Trial Co-ordination. Such reply is to be no more than one (1) page in length. In the event the same is not complied with within that time period, the moving party shall be deemed to have waived her right to do so.
Once all of those steps have been completed, counsel for the moving party shall provide all the submissions to the court through Trial Co-ordination.
The costs submission shall be double-spaced and use a "Times New Roman" font no smaller than 12 point. All references to the length of submissions exclude Bills of Costs, dockets, and Costs Outlines and any Offers to Settle.
Original signed by Justice Christopher M. Bondy
Christopher M. Bondy
Justice
Released: November 13, 2015
COURT FILE NO.: CV-11-16296
DATE: 20151113
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Nicola Anne Hanson also known as Nicola Dickinson-Hanson
Plaintiff and Moving Party
– and –
Allstate insurance Company of Canada
Defendant
– and –
Luigi DiPierdomenico and DiPierdomenico Law Firm
Responding Party
REASONS
Bondy J.
Released: November 13, 2015