Court File and Parties

COURT FILE NO.: CV-15-529073 DATE: 20200713 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Sahar Jadgharib, Plaintiff AND: Sohrab Mehmandoust, Defendant

BEFORE: Darla A. Wilson J.

COUNSEL: M. Balachandran, Counsel for the Goldfinger law firm Sahar Jadgharib, self-represented Plaintiff

HEARD: In writing

Endorsement

[1] I received this motion as a motion in writing during the court’s suspension of services. It is a motion brought by the solicitor for the Plaintiff for removal as counsel of record as well as for a charging order.

[2] By way of background, this action arises from a motor vehicle collision which occurred January 2, 2104 from which the Plaintiff claims damages for injuries. Initially, Ms. Jadgharib retained the Alexanian Law Firm. In November 2016, she switched lawyers and retained Brian Goldfinger (“Goldfinger”) and his law firm pursuant to a contingency fee agreement.

[3] Mr. Goldfinger obtained written instructions from the Plaintiff to settle the amount of the account from the Alexanian Law Firm out of the proceeds of settlement or trial and Mr. Goldfinger paid the disbursements and obtained the file.

[4] Mr. Goldfinger did the usual work associated with a personal injury file, including obtaining documentation, attending discoveries, and mediation. The action was set down for trial in April 2018 and on September 12, 2018, counsel attended trial scheduling court and fixed the trial date for the sittings in October 2020 and a pretrial conference was scheduled for May 22, 2020.

[5] Mr. Goldfinger deposes that on November 21, 2019 he received an authorization and direction from Peter Kazdan advising that the Plaintiff had retained him to assume carriage of the file. Mr. Kazdan asked for the file from Mr. Goldfinger as well as a copy of his account. In his letter, Mr. Kazdan stated, “I can undertake to protect your fees subject to them being agreed upon or assessed.”

[6] Mr. Goldfinger sent his account for services rendered in the amount of $57,154.97 to the Plaintiff by letter of December 2, 2109. He wrote to Mr. Kazdan the same day, sending a copy of the account and notifying him of the outstanding account of previous counsel. He asked Mr. Kazdan to confirm his instructions concerning his account and requested a further undertaking that Mr. Kazdan would notify him if Ms. Jadgharib changed counsel once again. Should that not be forthcoming, Mr. Goldfinger indicated he would bring a motion for removal from the record and for a charging order. He requested that his disbursements be paid prior to file transfer.

[7] Mr. Goldfinger did not receive a response form Mr. Kazdan so he wrote again on January 13, 2020 advising that he would bring a motion Febraury 7, 2020. Having received no response, Mr. Goldfinger served the motion on January 16.

[8] After receiving the letter form Mr. Kazdan, Goldfinger received an offer to settle from the solicitor for the Defendant. That offer was sent to Mr. Kazdan and to the Plaintiff.

[9] The motion was returnable before Master McAfee March 6; the Master adjourned it as it was not served on the Defendant contrary to Rule 15.04 of the Rules of Civil Procedure. Further, the Master noted the removal of counsel of record could potentially affect a fixed trial date and a judge should be spoken to.

[10] As a result of the pandemic, the court’s regular services were suspended as of March 16, 2020 and only urgent matters were heard. The motion was then filed in writing; Justice Myers ordered that materials be filed electronically, which was done. Counsel for the Defendant provided an affidavit. The Plaintiff provided her sworn affidavit of March 2, 2020 in which she deposed that after meeting with Mr. Kazdan, he then advised her he was not in a position to assume carriage of her file. That appears to be the first notice to Goldfinger that Mr. Kazdan was not taking over the file.

[11] In her affidavit, Ms. Jadgharib complains about the legal services provided by Goldfinger. She alleges certain limitation periods were missed. She disputes that she signed a contingency fee agreement in March 2018. She indicates that she wishes to assess the account of Goldfinger and she needs her file.

[12] Ms. Jadgharib then filed a supplementary affidavit sworn May 29, 2020 in which she states that the Goldfinger firm worked on her tort claim and on her accident benefits claim and she is uncertain what work detailed in the account relates to which file.

Analysis

[13] While Ms. Jadgharib disputes certain things set out in the affidavit of Mr. Goldfinger, the following points are clear from the evidence:

a) Ms. Jadgharib instructed Goldfinger to pay the reduced Alexanian account out of settlement proceeds and Goldfinger paid the disbursements in order to obtain the file.

b) Ms. Jadgharib retained the Goldfinger firm pursuant to a CFA November 7, 2016. While she disputes that she signed the retainer agreement dated March 6, 2018, it is clear that Goldfinger acted on behalf of the Plaintiff from late 2016 up to November 2019 and in doing so incurred fees and disbursements. The Plaintiff wishes to assess the account.

c) There is evidence that an offer to settle has recently been received from the Defendant, who takes no position on this motion.

The Goldfinger firm has satisfied the criteria for obtaining a charging order: they have done work and incurred disbursements in furtherance of advancing the Plaintiff ‘s claim. An offer to settle has been received from the Defendant in the tort action so there is a possibility funds will be advanced if that offer is accepted. The Plaintiff has made it clear she will not pay the account as rendered; she will have it assessed.

Order

[14] I make the following orders:

a) The Goldfinger firm shall be removed as counsel of record for the Plaintiff in this action;

b) The Goldfinger law firm is entitled to a charging order on any settlement funds pursuant to section 34.1 of the Solicitors Act up to the amount of its account dated 2 December 2019, updated to $58,129.35. While Mr. Goldfinger asks for the charging order to apply to any funds received for accident benefits recovered, it is not clear to me if a claim has been issued for accident benefits or what the status is. The action before me relates only to the tort action;

c) If the Plaintiff wishes to assess the account from Goldfinger, she is to take steps to obtain an assessment date within 30 days of the date of this order;

d) If a settlement is effected between the Plaintiff and the Defendant, any settlement funds up to the amount of the charging order are to be paid into court until the account of Goldfinger has been dealt with, either on consent or through an assessment;

e) If the Plaintiff retains new counsel, they shall serve a notice pursuant to Rule 15.03 of the Rules of Civil Procedure or alternatively, the Plaintiff shall serve a notice of intention to act in person within 30 days of the date of these reasons.

f) Goldfinger shall provide the Plaintiff with a copy of her file forthwith;

g) My order shall be served on the Plaintiff at her last known address and by email; the order shall be served on counsel for the Defendant;

h) The Plaintiff and counsel for the Defendant are to contact the trial coordinator to schedule a pretrial in this action in August, 2020. If a request for an adjournment of the October 2020 trial date is to be made, it is to be made to me.

[15] If there are any issues arising from my order, I may be contacted. This order is effective immediately.

D.A. Wilson J. Date: July 13, 2020