Court File and Parties

CITATION: MUSTAPHA AL-HAJJ HASSAN v. KIRK H. WHEARTY, 2017 ONSC 632

COURT FILE NO.: 14-62962

HEARD: November 29, 2016

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Mustapha Al-Hajj Hassan Plaintiff

and

Kirk H. Whearty Defendant

BEFORE: Master Champagne

COUNSEL: Jaime Wilson, for the Plaintiff

Sunish Uppal, representing himself – Plaintiff’s former counsel

HEARD: November 29, 2016

ENDORSEMENT

[1] The motion before me by the plaintiff is for an order compelling his former counsel Sunish Uppal to deliver his complete file contents to the law firm of McNally Gervan.

[2] This motion arises from an action relating to a motor vehicle accident that occurred March 1, 2013.

[3] The plaintiff originally retained the law firm of McNally Gervan to pursue his claim against the defendant and, in September 2013, he changed lawyers and retained Mr. Uppal to take over the file. He signed a contingency fee agreement with Mr. Uppal on September 14, 2013. Part of paragraph 10 of that agreement provides the following:

I understand that if my lawyer removes himself/herself as my legal counsel and/or I terminate representation of my lawyer (for any reason by going to a new lawyer outside of my lawyer’s law practice/firm-not a lawyer from SLSPC’s firm), my lawyer will render an account based on his/her hourly rate and fee account and will require that the account (plus outstanding disbursements/expenses and applicable taxes) be paid prior to the file being transferred to any other legal counsel and/or paralegal.

[4] On December 24, 2014, Mr. Uppal issued a Statement of Claim which was defended by way of Statement of Defence served on the plaintiff in August 2015.

[5] On February 23, 2016, the plaintiff again changed counsel and re-retained the law firm of McNally Gervan.

[6] On that same date, Mr. Auerbach of McNally Gervan wrote to Mr. Uppal seeking the delivery of the plaintiff’s file. On April 14, 2016, Mr. Uppal sent Mr. Auerbach a letter advising that he would send the complete client file upon payment of his account for disbursements in the sum of $3,442.07, plus HST, and upon receiving an undertaking from Mr. Auerbach to protect his fees in the amount of $24,000.24, plus HST. Mr. Auerbach responded on April 15, 2016 advising that he would protect Mr. Uppal’s reasonable fees subject to agreement or assessment and requested details and invoices for the disbursements claimed, including travel costs. He asked that the file be sent to him in the meantime. When he did not hear from Mr. Uppal, Mr. Auerbach sent a follow-up letter on May 10, 2016 asking to have the file couriered to him immediately. On that same date, Mr. Uppal sent Mr. Auerbach an email advising that he would send the requested file upon payment of his disbursements account forthwith and suggesting that his account for fees be assessed.

[7] Mr. Auerbach responded on May 13, 2016 indicating that he had conducted a search of the court file and had found my endorsement dated January 28, 2016 ordering a timetable and costs to be paid to the defendant in the sum of $500.00 within 60 days. In that letter, Mr. Auerbach indicated that he did not feel that the plaintiff should be responsible for the $500.00 in costs as those costs arose as a result of Mr. Uppal’s failure to respond to communications from the defendant’s counsel. He sent Mr. Uppal a cheque for a partial amount of the disbursements claimed and demanded the delivery of the file. On May 13, 2016, Mr. Uppal advised that he would not release the plaintiff’s file until his disbursements were paid in full.

[8] There is no evidence as to why the plaintiff changed lawyers. Plaintiff’s counsel, in her written submissions, argues that Mr. Uppal is not entitled to retain the file under the Solicitors Act, R.S.O. 1990, c. S.15, as he was dismissed for cause. There is no evidence that he was dismissed for cause. While the plaintiff states that my endorsement shows that the plaintiff was ordered to pay costs for the delay/failure of his counsel to respond to the defendant, there is no evidence as to why the delay was incurred or that the endorsement was the reason for the change in counsel. In fact, it would appear that McNally Gervan only became aware of the endorsements after they were retained.

Analysis

[9] The plaintiff argues that Mr. Uppal gave a solicitor’s undertaking to provide Mr. Auerbach with the contents of the clients file and seeks an order enforcing that undertaking. While I agree that Mr. Uppal gave an undertaking, it was always clearly conditional upon payment of his disbursement account. That condition was not complied with, so there is no breach by Mr. Uppal.

[10] The plaintiff also argues that Rules 30 and 30.1 of the Rules of Civil Procedure, R.S.O. 1990, Reg. 194, are applicable to this motion. I disagree. Those rules speak to the production of documentary disclosure. The substance of this motion is clearly the legitimacy of Mr. Uppal’s retention of the plaintiff’s file. The applicable rule is rule 15.03, which permits a party to move for an order determining whether and to what extent a client’s former lawyer has a right to a lawyer’s lien.

[11] The right to a lien is set out in s. 34(1) of the Solicitors Act, which sets out the following:

Where a solicitor has been employed to prosecute or defend a proceeding in the Superior 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.

[12] While Rule 3.8 of the Law Society of Upper Canada’s Rules of Professional Conduct require a lawyer to “try to minimize expense and avoid prejudice to the client” on a change of solicitor, Linauskas v. Linauskas (1998), 1998 14657 (ON SC), 38 O.R. (3d) 113 (Gen. Div.), makes clear that where a solicitor is discharged without cause, the solicitor is entitled to a lien. Justice Quinn in Linauskas correctly points out that the purpose of a lien is to inconvenience a client in order to inspire the client to pay a debt. That said, where retention of the lien would unduly prejudice a client, the court has discretion to compel the return of the file: see Kupnicki v. Macerola (2007), 2007 23912 (ON SC), 86 O.R. (3d) 468 (Master).

[13] In the matter before me, I do not find that Mr. Uppal was discharged for cause; the reasons for the plaintiff’s change in counsel are unknown. I find therefore that Mr. Uppal has a legitimate lien on the file. I do not find that the plaintiff would be unduly prejudiced by the lien. Mr. Uppal is quite reasonably prepared to have the issue of his fees determined by an assessment at a later date; the issue in dispute is his disbursement account in the amount of $3,442.07. The amount Mr. Uppal seeks is not significant in the context of civil litigation and, while there is a dispute as to the legitimacy of the disbursements, that issue may be adjudicated by an assessment officer.

[14] In the circumstances, the plaintiff’s motion is dismissed.

[15] On the issue of costs, I take into consideration the fact that Mr. Uppal participated in this motion by phone from Toronto and, while he was successful on the motion, his material was not very helpful. He did not provide me with any of the case law or legislation upon which I made my decision. In addition, I observe that the tenor of the communication over the course of the dispute as set out in the motion record became less professional over time and neither lawyer should be proud to have those communications before the court. Reference is made to phone conversations where one lawyer is alleged to have engaged in profanity and the other accuses of bullying and intimidation. It is clear from the record that this dispute became personal between counsel. I am therefore not prepared to order the plaintiff to pay costs.

Master Champagne

Date: January 25, 2017