Court File and Parties

COURT FILE NO.: CV-15-00522396-0000 DATE: 2023-07-21

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: ROBINSON, Plaintiff AND: DORTWYN et al, Defendants

BEFORE: ASSOCIATE JUSTICE R. FRANK

APPEARANCES: John-Paul Zeni, former counsel for the Plaintiff Lecia Robinson, self-represented Plaintiff

HEARD: July 18, 2023

Endorsement

1This is a motion brought by Advocai LLP, the former lawyers of the Plaintiff, for a charging order against the proceeds of any settlement or judgment recovered in this action by the Plaintiff.

2The underlying action arises out of a motor vehicle accident that is alleged to have occurred on February 26, 2013. The statement of claim was issued on February 20, 2015 at which time the Plaintiff was represented by Mazo Chowbay Barristers and Solicitors (“Mazo Chowbay”).

3The Plaintiff served a notice of intention to act in person on February 17, 2017 and represented herself in this action for several years.

4On December 26, 2019, defence counsel emailed Ms. Robinson advising her of a pending administrative dismissal deadline (February 20, 2020) and provided Ms. Robinson with information regarding the next steps (including mediation) that were required to prevent the action from being administratively dismissed.

5In February 2020, the Plaintiff retained Advocai LLP to advance her claims. The retainer was based on a contingency fee arrangement, and the Plaintiff entered into a Contingency Fee Retainer Agreement with Advocai LLP (the “Retainer Agreement”). Once retained, Advocai LLP obtained the Defendant’s consent to a timetable in order to avoid an administrative dismissal of the action. The steps that followed included the completion of examinations for discovery, preparation of expert reports in support of the Plaintiff’s claim, mediation, setting the action down for trial, and obtaining pre-trial and trial dates.

6Beginning in late 2021 through to the period immediately before and following a pre-trial scheduled for August 26, 2022, there was a breakdown in the lawyer-client relationship between the Plaintiff and Advocai LLP. There is a dispute between the Plaintiff and Advocai LLP as to who terminated the Retainer Agreement. In any event, Advocai LLP sent a “final account” to the Plaintiff on September 14, 2022 in the amount of $65,568.04 (the “Statement of Account”), and on October 17, 2022 the Plaintiff served a notice of intention to act in person dated October 14, 2022. On November 2, 2022 Advocai LLP advised the Plaintiff that it would be exerting a solicitor’s lien over the client’s file until steps were taken to pay or protect the Statement of Account.

Issue and Analysis

7The issue on this motion is whether Advocai LLP is entitled to a charging order over any funds that may arise from a settlement or judgment in this action in order to protect its fees and disbursements.

8Section 34(1) of the Solicitors Act, RSO 1990, c S.15 provides as follows:

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

9The test for a charging order has been explained by the Court of Appeal as follows:

14In order to obtain a charging order or a lien on the moneys in issue, the onus is on the solicitor to demonstrate that a charging order or lien is warranted. The decision is discretionary: Taylor v. Taylor (2002), 60 O.R. (3d) 138, [2002] O.J. No. 2313 (C.A.), at para. 34; Foley v. Davis, [1996] O.J. No. 3080, 49 C.P.C. (3d) 201 (C.A.), at p. 202 C.P.C. In deciding whether or not to exercise that discretion, courts must “balance the circumstances and equities of each case and client”: Taylor, at para. 34.

15The test for a charging order under s. 34 is clear. To obtain a s. 34 charging order, a solicitor must demonstrate that

(i) the fund or property is in existence at the time the order is granted: Langston v. Landen, [2008] O.J. No 4936, 45 E.T.R. (3d) 153 (S.C.J.), at paras. 28-29;

(ii) the property was “recovered or preserved” through the instrumentality of the solicitor: Kushnir v. Lowry, [2003] O.J. No. 4093, 126 A.C.W.S. (3d) 340 (C.A.), at para. 2;

(iii) there must be some evidence that the client cannot or will not pay the lawyer’s fees: Kushnir, at para. 2; see, also, Guergis v. Hamilton, [2016] O.J. No. 3629, 2016 ONSC 4428 (S.C.J.), at para. 6; Thomas Gold Pettinghill LLP, at para. 88; Foley, at p. 202 C.P.C.

16Charging orders exist alongside, and in addition to, a court’s inherent jurisdiction to grant a solicitor’s lien. Although distinct, they are two sides of the same coin, and overlap significantly in purpose and effect. As this court observed in Taylor, at para. 28, s. 34 of the Solicitors Act is a codification of a court’s “inherent jurisdiction in equity to declare a lien on the proceeds of a judgment where there appears to be good reason to believe that the solicitor would otherwise be deprived of his or her costs”. This test was outlined in Weenan v. Biadi, 2018 ONCA 288 at paras 14 and 15.

10A charging order may be granted under s. 34 of the Solicitors Act for fees and disbursements that may be owing under a contingent fee arrangement. Mpampas v. Steamatic Toronto, [2009] O.J. No. 4724 at paras 8-9. The test for demonstrating instrumentality has been variously described as actions by a lawyer that have preserved the client’s right to sue, Mpampas at paras 11-12, and actions that are a “substantial and integral part in the recovery or preservation of an asset or assets to which the charging order might apply”. Patton v. Patton, [2008] O.J. No. 124 at para 40.

11Advocai LLP submits that it meets the three-part test for a charging order outlined in Weenan. In support of its position, Advocai LLP relies on Jadgharib v. Mehmandoust, 2020 ONSC 4309 in which the court held as follows:

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 Statement of Account as rendered. Jadgharib at para 13.

12The Plaintiff’s argument did not address the Weenan test directly. Rather, the Plaintiff submits that Advocai LLP is not entitled to any fees, nor the charging order, because Advocai LLP terminated the Retainer Agreement, and did so in circumstances where there was no irreconcilable breakdown in the lawyer-client relationship. I do not accept this submission.

13Section 6 of the Retainer Agreement provides that the Plaintiff will be charged for work done on her behalf and for disbursements in the event that (i) the Plaintiff terminates the Retainer Agreement, or (ii) Advocai LLP terminates the agreement due to an irreconcilable breakdown in the lawyer-client relationship. Although the Plaintiff takes the position that there was no irreconcilable breakdown in the lawyer-client relationship, I am satisfied on record that there was such a breakdown. Therefore, regardless of whether the Plaintiff terminated the Retainer Agreement by delivering a notice of intention to act in person, or Advocai LLP terminated the relationship due to an irreconcilable breakdown in the lawyer-client relationship, the Retainer Agreement provides that the Plaintiff will be charged for work done on the file and for disbursements.

14The Plaintiff also submits that (i) when she terminated her retainer with Mazo Chowbay (the first law firm that represented her), that firm did not charge her any fees; and (ii) the Retainer Agreement with Advocai LLP has the same essential terms as the retainer agreement she had with Mazo Chowbay. She submits that this demonstrates that, as was the case for Mazo Chowbay, Advocai LLP is not entitled to recover its fees or disbursements. I do not accept this argument. There is no evidence before me with respect to the circumstances under which the Plaintiff’s retainer with Mazo Chowbay was terminated, or the reasons why Mazo Chowbay did not render an account to the Plaintiff. In any event, the fact that Mazo Chowbay did not render an account to the Plaintiff is not determinative of the issues on this motion.

15In my view, Advocai LLP has satisfied all three parts of the test for a charging order. First, the Plaintiff’s right to sue is a chose in action, and it considered to be “property” or a “fund”. Mpampas at para 11; Pino v. Vanroon, [1998] O.J. No. 4354 at paras 10 and 12. This satisfies the first branch of the test for a charging order under Weenan.

16Second, there is ample evidence that the “property”, i.e. the Plaintiff’s action, was preserved through the instrumentality of Advocai LLP. In the present case, the actions undertaken by Advocai LLP on behalf of the Plaintiff include the following:

(a) negotiating and obtaining a consent order granting a litigation timetable to prevent the pending administrative dismissal of the action; (b) completing examinations for discovery; (c) arranging medical-legal assessments and obtaining medical-legal reports; (d) arranging and attending a mediation; (e) preparing, serving and filing the trial record; (f) obtaining an admission of liability from the Defendants; (g) attending trial scheduling court and obtaining pre-trial and trial dates; (h) funding the cost of the litigation, including, the cost of clinical notes and records, medical-legal reports, examinations, mediation, court filings and other disbursements.

17Further, prior to the Plaintiff’s retainer of Advocai LLP, the Defendants’ Rule 49 offer was in the amount of $75,000. During the Advocai LLP retainer, the Defendants’ Rule 49 offer was increased to $240,000.

18Third, I am satisfied on the record that there is some evidence that the client cannot or will not pay the Statement of Account. In this regard, the Plaintiff has had the Statement of Account since September 2022 but has refused to pay it. As noted, her stated position is that she was not required to pay her first lawyer of record and, similarly, she should not be required to pay Advocai LLP’s Statement of Account. In addition, I am satisfied on the evidence in the record that the Plaintiff’s primary source of income has been social assistance (ODSP) and that she will not be able to pay the Statement of Account in issue other than through the proceeds of settlement or judgment.

19In all the circumstances, I am satisfied that it is appropriate to exercise my discretion to grant a charging order. With respect to the terms of the order, Advocai LLP acknowledges that the Plaintiff is entitled to an assessment of the Statement of Account if she so wishes, and it seeks an order that the Plaintiff shall have up to 30 days from the disposition of this motion to seek an assessment. In my view, it would be more appropriate to allow the Plaintiff 60 days to seek an assessment of the Statement of Account, if she so chooses.

Disposition

20For the reasons outlined above, I exercise my discretion to grant the motion. I order as follows:

(1) Advocai LLP is entitled to a charge against any monies payable to the Plaintiff pursuant of any settlement or judgment recovered in this action by the Plaintiff, which charge shall be in the amount of $65,568.04, or an amount to be agreed upon or assessed; (2) the Plaintiff has 60 days from the date of this order to take steps to seek an assessment of the Advocai LLP Statement of Account; (3) the Plaintiff shall provide a copy this order to any legal representative she may retain in respect of this action; and (4) the Plaintiff shall forthwith notify Advocai LLP, in writing, of any judgment in or settlement, dismissal, discontinuance, or termination by any other means of this action.

21The moving party is not seeking any costs of the motion, and none are ordered.

22Order to go as amended electronically and signed by me.

R. Frank Associate J