COURT FILE NO.: CV-12-3777-00
DATE: 2018-07-13
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
JAVED ANJUM
Muhammad M. Alam, on his own behalf
No on appearing, for the client/Plaintiff
Applicant
- and -
JOHN DOE, BRENT CROWDER, LIBERTY INTERNATIONAL UNDERWRITERS CANADA, and STATE FARM INSURANCE COMPANY
No one appearing, for the Defendants John Doe or Brent Crowder
No one appearing, for the Defendant Liberty International
No one appearing, for the Defendant State Farm
Defendants
HEARD: July 13, 2018,
at Brampton, Ontario
Price J.
Reasons For Order
OVERVIEW
[1] Javed Anjum (“Mr. Anjum”) retained a personal injury lawyer, Mohammad Alam and Alam Law Office, (“Mr. Alam”), by means of a contingency fee retainer agreement entered into on September 28, 2010, to undertake an action on his behalf for damages for personal injuries he had sustained in a motor vehicle collision several days earlier. Mr. Alam now moves for an Order removing him as Mr. Anjum’s, lawyer of record, and for a charging order against the proceeds of any settlement or judgment that Mr. Anjum recovers in the action.
BACKGROUND FACTS
[2] Mr. Anjum was involved in a motor vehicle collision on September 25, 2010, when the tractor trailer he was operating was struck by an uninsured vehicle that was overtaking his. Three days later, Mr. Anjum retained Mr. Alam to commence this action on his behalf to recover damages for the injuries he sustained.
[3] On September 28, 2010, Mr. Anjam and Mr. Alam signed a retainer agreement which provided, in paragraph 10, that:
(a) Mr. Anjum may not terminate the agreement if the termination is done to avoid the obligation to pay the contingency fee provided for in the retainer;
(b) If Mr. Anjum properly terminates the agreement, he will be required to pay a fee to Alam Law Office equal to the value of the firm’s work in progress plus HST and disbursements incurred on his behalf until the date the agreement is terminated.
(c) In the case of disbursements, Alam Law Office will be paid immediately, and in the case of fees, Mr. Anjum will sign a direction directing a new solicitor to pay Alam Law Office’s fees and HST as a first charge on the proceeds of settlement or judgment.
[4] A copy of the retainer agreement was given to Mr. Anjum.
[5] Mr. Alam carried Mr. Anjum’s claim through all the stages of litigation to the eve of trial. He issued a Statement of Claim on behalf of Mr. Anjum on August 25, 2012. In June 2017, he successfully resolved Mr. Anjum’s Accident Benefit claim for a substantial sum. He attended three separate Examinations for Discovery of Mr. Anjum, answered the undertakings given, guided Mr. Anjum through multiple defence medical assessments, and hired multiple medical legal experts who are prepared to testify at Mr. Anjum’s trial. He completed multiple motions, including defending a motion by one of the defendants, State Farm Insurance, for summary judgment, which was eventually withdrawn. He set the action down for trial, arranged for a “Day in the Life” video to be completed, and attended a mediation and a pre-trial conference. The trial is now scheduled to proceed at the trial sittings in January 2019.
[6] On April 29, 2018, Mr. Alam received a voicemail from Mr. Anjum, informing him that he wanted to settle his claim and was going to contact the defendant State Farm Insurance directly for this purpose. Mr. Alam e-mailed him to advise him not to contact the insurance company directly and that if he wanted to make an Offer to Settle, he could meet with Mr. Alam and give him written instructions to do so on his behalf.
[7] On May 16, 2018, Mr. Anjum and Mr. Alam had a telephone discussion in which Mr. Anjum declined to give Mr. Alam further instructions regarding his claim or to attend at Mr. Alam’s office to give him instructions regarding an Offer to Settle. Instead, he instructed Mr. Alam not to contact defence counsel on his behalf and advised him that he wished to terminate Mr. Alam’s retainer. He added that he had spoken to another lawyer.
[8] Mr. Alam explained to Mr. Anjum that he would transfer the file to Mr. Anjum’s new lawyer upon receiving correspondence from the new lawyer, and upon the new lawyer paying Mr. Alam’s disbursements and undertaking to protect Mr. Alam’s legal fees for the work performed on his file. Later the same day, Mr. Alam confirmed his position in an e-mail to Mr. Anjum. He reminded Mr. Anjum that his trial, scheduled for the January 2019 trial sittings, was to proceed on a peremptory basis, and that he must retain a new lawyer as soon as possible.
[9] On May 20, 2018, Mr. Alam e-mailed Mr. Anjum to request an up-date regarding his intentions to hire a new lawyer. He invited Mr. Anjum, once again, to attend at his office to provide instructions. On May 28, 2018, Mr. Alam e-mailed Mr. Anjum again, this time insisting that Mr. Anjum advise him of his intentions by June 5, 2018, failing which he would be forced to remove himself as Mr. Anjum’s lawyer of record due to his lack of instructions.
[10] On May 31, 2018, Mr. Alam received a voicemail from Mr. Anjum requesting paperwork he needed to give to a “David” so that he could talk to him. Later the same day, Mr. Alam e-mailed Mr. Anjum to advise that he was not aware of anyone named David, and to ask him what paperwork was required.
[11] On June 4, 2018, Mr. Alam received an e-mail from David Barkovich, a Bodily Injury Claims Advisor at State Farm Insurance, one of the defendants in the action, advising him that Mr. Anjum had been calling him on a daily basis and to request that he be able to speak freely with Mr. Anjum. On June 5, 2018, Mr. Anjum left a threatening voicemail for Mr. Alam and requested, once again, the paperwork that would allow him to speak to Mr. Barkovich directly.
[12] On June 5, 2018, Mr. Alam e-mailed Mr. Anjum to advise him that he must stop leaving threatening voicemails and that no paperwork could be provided to him for the purpose of speaking to Mr. Barkovich directly until the hearing of a motion to remove Mr. Alam from the record as Mr. Anjum’s lawyer. Mr. Alam further advised that, since Mr. Anjum had not appointed a new lawyer as he had previously indicated, he could file a Notice of Intention to Act in Person. Mr. Anjum advised Mr. Alam that he would not do so, and demanded that Mr. Alam remove himself from the record as his lawyer. He informed Mr. Alam that he had called State Farm and was told that once Mr. Alam was off the record, he would be able to communicate directly with them. Mr. Anjum stated that it was his intention to do so.
[13] Following the conversation on June 5, 2018, Mr. Alam learned of conversations Mr. Anjum was having with State Farm, which made it clear that Mr. Anjum intended to deprive Mr. Alam of his legal fees and disbursements by forcing him to be removed as Mr. Anjum’s lawyer of record in the action.
[14] Mr. Alam has moved for an Order removing him from the record as Mr. Anjum’s lawyer. He additionally seeks a charging order against the proceeds of any judgment or settlement that Mr. Anjum recovers from the defendants. The motion was served on Mr. Anjum and the defendants, including State Farm Insurance, on July 4, 2018. No one has responded to the motion or appeared by noon today, the scheduled date for the hearing of the motion.
ISSUE
[15] The Court must determine whether Mr. Alam is entitled, in these circumstances, to a charge on the proceeds of any judgment or settlement he recovers in the action.
ANALYSIS AND EVIDENCE
[16] The determination as to a lawyer’s entitlement to a charging order for fees and disbursements in an action depends on whether it can reasonably be said that a settlement or judgment obtained by the client will have been achieved through the “instrumentality” of the lawyer’s efforts. It is my view that in the circumstances of the present case, this can reasonably be said.
[17] In order to obtain a charging order on property, a solicitor must demonstrate that:
- The fund or property is in existence when the order is granted.[^1]
- The property was “recovered or preserved” through the instrumentality of the solicitor.[^2]
- The client cannot or will not pay the lawyer’s fees.[^3]
[18] In the present case, the property that is in existence at the present time is the cause of action that, on the eve of trial, Mr. Alam has brought to near fruition on Mr. Anjum’s behalf. If Mr. Anjum obtains a judgment or recovers the proceeds of a settlement at this point, there can be little doubt that it will have been “recovered or preserved” through Mr. Alam’s efforts.
[19] I am satisfied that, apart from the proceeds of a judgment or settlement, Mr. Anjum either cannot or will not pay Mr. Alam’s fees. The issue, therefore, is solely whether, if Mr. Anjum negotiates a settlement from the defendant insurer, or obtains a judgment, it can be said that that the fund was “recovered or preserved” through the instrumentality of Mr. Alam. As noted above, my view is that this is the only reasonably conclusion.
[20] In Re Tots and Teens Sault Ste Marie Ltd., (1975), Henry J. stated:
It is well settled that a solicitor has what is referred to as a retaining lien for his costs on property of his client in his possession, such as documents. It is also well settled that he has a lien on property of his client representing the fruits of litigation for which the solicitor has successfully expended his efforts: this latter is referred to as a charging lien … and … it is distinguished from the retaining lien in that it may be enforced against property which is not in the possession of the solicitor.[^4]
And later:
…It is well established judicially that the solicitor has a prima facie right to his lien, as a particular charge upon the fruits of his endeavours, which I refer to as “the fund” and that he ought not to be deprived of this remedy by way of charging order in the absence of exceptional circumstances. …
…[T]he decision to grant a charging order … is one of discretion in the Court, which discretion is exercised judicially on equitable principles, the solicitor prima facie being entitled to its exercise in his favour.[^5]
[Emphasis added]
[21] When a solicitor is discharged by the client, the solicitor is entitled to a charging order where the property was preserved or recovered while he or she was acting on the client’s behalf: Clover v. Adams (1881), 6 Q.B.D. 622; Re Wadsworth (1885), 29 Ch.D. 517. In Re Wadsworth, supra at 520, Kay J. notes that it would be unfair to deny a charging order in the case of a solicitor who prepares a whole case down to the moment of trial, is then discharged and the client succeeds as a result of the former solicitor’s efforts.
[22] Mr. Alam and his firm are entitled to a charging order because their services, which have brought the action to the point where a settlement can be negotiated or a judgment obtained, were instrumental in enabling Mr. Anjum to recover the damages he is claiming in his action.
CONCLUSION AND ORDER
[23] For the foregoing reasons, an Order will issue in the terms of the draft Order filed, which I have signed, removing Mr. Alam and his firm as Mr. Anjum’s lawyer of record in the action, and granting him a charging order against the proceeds of any settlement or judgment recovered in the action.
Price J.
Released: July 13, 2018
COURT FILE NO.: CV-12-3777-00
DATE: 2018-07-13
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
JAVED ANJUM
Plaintiff
- and –
JOHN DOE, BRENT CROWDER, LIBERTY INTERNATIONAL UNDERWRITERS CANADA, and STATE FARM INSURANCE COMPANY
Defendants
REASONS FOR ORDER
Price J.
Released: July 13, 2018
[^1]: Langston v. Landen [2008] O.J. No. 4936 (S.C.J.)
[^2]: Kushnir v. Lowry [2003] O.J. No. 4093 (C.A.)
[^3]: Budinsky v. The Breakers East Inc. 1993 5442 (ON S.C.), (1993), 15 O.R. (3d) 198 (Gen. Div.)
[^4]: Re Tots and Teens Sault Ste Marie Ltd. (1975), 1975 535 (ON SC), 11 O.R. (2d) 103, 21 C.B.R. (N.S.) 1 (sub nom. Re Tots and Teens Sault Ste Marie Ltd. and McFarland; Lang v. Spackman), 65 D.L.R. (3d) 53 (S.C.) at 106 [O.R.]
[^5]: Re Tots and Teens Sault Ste Marie Ltd. (1975), at p. 109