Reasons for Decision

Dunlap v. Williams, 2025 ONSC 3708
Ontario Superior Court of Justice
Court File No.: CV-23-92089
Date: 2025/06/25
Released: June 25, 2025
Judge: Sylvia Corthorn

Appearances

• Applicants: Dan Dunlap and Dunlap Law Professional Corporation
  • Counsel: Miriam Vale Peters
• Respondents: Carl Williams (Self-represented) and BadreLaw Professional Corporation
  • Counsel for Badre Law Professional Corporation: Joshua Chmielewski

Heard: September 5, 2024 in person and, thereafter in writing

Introduction

[1] Through the applicant corporation (“Dunlap Law”), the individual applicant, Dan Dunlap, provided services to the individual respondent, Carl Williams. The applicants assert that legal services were provided in relation to (a) the preparation of a will, (b) an application for a pardon, (c) a Small Claims Court proceeding, and (d) a personal injury matter.

[2] The applicants commenced this proceeding as a method by which to obtain payment of money owing pursuant to a series of invoices delivered to Mr. Williams in the years 2017 through 2020. The applicants’ position is that the principal balance owing to them is $7,500; the applicants claim interest on that amount.

[3] The personal injury matter was a slip and fall incident in which Mr. Williams was involved in January 2018. Mr. Dunlap decided to semi-retire before Mr. Williams’ personal injury matter was resolved. In 2020, carriage of Mr. Williams’ personal injury matter was transferred to the respondent corporation (“BLPC”).

[4] The applicants assert that the personal injury matter was settled in 2022 for the all-inclusive amount of $40,000. BLPC continues to hold the settlement funds in trust, pending a final determination of this application.

[5] The applicants request a charging order against the settlement funds. In the alternative, the applicants rely on a series of documents said by the applicants to have been signed by Mr. Williams (“the Documents”). The Documents include a Direction for the transfer of the personal injury matter to BLPC; an Irrevocable Direction related to the personal injury matter; and a Promissory Note.

[6] In response, Mr. Williams denies that he personally signed any of the Documents. Mr. Williams alleges that the signatures on the Documents said to be his are forgeries. Mr. Williams alleges that the applicants relied on a healthcare records release form, signed by Mr. Williams in blank, to create the forged signatures.

[7] In the alternative, Mr. Williams submits that the claims advanced for payment of some, if not all, of the invoices are statute-barred because of the expiration of the applicable limitation period. In the further alternative, Mr. Williams denies that he received all of the services the applicants say were provided.

[8] Last, Mr. Williams questions the applicants’ calculation of the principal amount said to be owing and of the accrued interest. Mr. Williams’ position is that principal amount outstanding is at most $3,423.78.

[9] Mr. Williams requests that the application be dismissed.

The Issues

[10] The following issues are determined in these reasons:

1. What is the principal amount outstanding on the subject invoices?
2. Are the applicants entitled to interest on the principal amount outstanding and, if so, how is interest calculated?
3. Are the applicants entitled to a charging order?
4. Are the applicants entitled to payment of any outstanding balances that are not the subject of the charging order?

Issue No. 1 – What is the principal amount outstanding on the subject invoices?

[11] The applicants request a charging order or enforcement of the Documents for payment of (a) disbursements only for the personal injury matter, and (b) the balance due and owing for invoices delivered regarding the will, pardon application, and Small Claims Court proceeding.

a) The Personal Injury Matter

[12] On the return of the application, the applicants informed the court that they are not seeking payment of any fees for work done on the personal injury matter. The applicants seek payment of disbursements and applicable HST.

[13] The record includes two invoices issued to Mr. Williams for disbursements incurred on the personal injury matter. Those invoices are Exhibit “H” to Mr. Williams’ responding affidavit (“the Williams affidavit”). The disbursements, including HST, charged in those invoices total $959.73. That amount is based on a 2018 invoice, in the amount of $102.53, and a 2020 invoice in the amount of $857.20. The $102.53 was paid, leaving only the $857.20 outstanding (as of the date of the relevant invoice—January 25, 2020).

[14] The only other evidence of disbursements incurred for the personal injury matter is found in a chart prepared by the applicants (“the Chart”). The Chart sets out all payments received from Mr. Williams towards invoices delivered or monetary retainers (i.e., funds held in trust).

[15] All the entries in the Chart related to the balance owing on the personal injury matter are for payments made prior to the date of the Documents (December 2019). Neither the Irrevocable Direction nor the Promissory Note refer to any amount outstanding for disbursements on the personal injury matter.

[16] Based on the two disbursements invoices, the Documents, and the Chart, I draw an inference and find that as of the date of the Irrevocable Direction (December 2019), there was no balance owing for disbursements.

[17] In summary, the principal balance that remains outstanding for the disbursements in the personal injury matter is $857.20. That amount has been outstanding since January 25, 2020.

b) The Will

[18] The applicants’ position is that the amount outstanding related to work on Mr. Williams’ will is $128.54. That amount is found in the Irrevocable Direction. It is unclear whether that amount includes interest. The applicants do not explain how they arrive at that amount as outstanding of December 2019.

[19] The applicants also rely on an invoice dated August 18, 2020 (i.e., delivered after the Documents are said to have been signed by Mr. Williams). That invoice is in the total amount of $1,766.59. Regarding that invoice, I make the following observations:

• The invoice includes docket entries for work done between April 20, 2018 and August 18, 2020;
• Two of the docket entries pre-date the date of the Irrevocable Direction and the Promissory Note;
• One of the dockets that pre-dates the date of the Irrevocable Direction refers to an individual other than Mr. Williams, a letter to that individual’s lawyer, and a “package pick up”. The work described in that docket raises the possibility that it was entered on the wrong file;
• None of the docket entries identify the timekeepers who carried out the work (i.e., Mr. Dunlap, an employee lawyer, or a non-lawyer employee);
• None of the docket entries include the number of hours or partial hours per entry; and
• There is no information about hourly rates charged.

[20] The August 18, 2020 invoice stipulates that a prior balance owing of $390.07 was paid in full. That invoice does not refer to the Irrevocable Direction or to the $128.54 listed in that document. Based on the contents of the August 18, 2020 invoice, I draw an inference and find that the $128.54 outstanding as of December 2019 is included in the $390.07 payment reflected in the invoice.

[21] It was incumbent on the applicants to accurately calculate the figures included in the Documents. The work described in the two 2018 docket entries that appear in the 2020 invoice may well have been accounted for as of December 2019. I therefore reduce the amount of the August 18, 2020 invoice to $1,640.00 ($1,766.59 - $128.54).

[22] In his affidavit, Mr. Dunlap acknowledges that, on September 1, 2020, Mr. Williams paid $500.00 towards the balance owing on the August 18, 2020 invoice. Since September 1, 2020, the principal balance outstanding on the will matter has been $1,140.00 ($1,640.00 - $500.00).

c) The Application for a Pardon

[23] The applicants submit that, as of December 2019, the balance outstanding for the work on the application for a pardon was $215.16. Once again (a) it is unclear whether the listed amount includes interest, and (b) the applicants provide no explanation as to how that amount was calculated.

[24] The only evidence as to accounts delivered to Mr. Williams for work in relation to the application for a pardon is found at Exhibit “B” to the Williams affidavit. That exhibit consists of two invoices delivered to Mr. Williams in the matter. The first invoice, dated in 2017, was paid in full.

[25] The second invoice, dated May 15, 2018, is in the total amount of $197.25. That is the principal amount outstanding for work done on the application for a pardon.

d) The Small Claims Court Proceeding

[26] The applicants’ position is that, as of December 2019, the amount outstanding for the work on this matter was $5,890.45. The applicants offer no explanation as to how they arrived at the amount, including whether it has an interest component.

[27] Exhibit “E” to the Williams affidavit is series of seven invoices for work on a Small Claims Court matter described in the invoices as “Issue between Wife and RBC”. Regarding the substantive content of the seven invoices, I note the following points:

• The initial docket entry on the first invoice is dated April 27, 2017; the final docket entry on the seventh invoice is dated November 6, 2018.
• The docket entries are continuous from one invoice to the next. For the second and subsequent invoices, based on the date of docket entries, each invoice picks up where the preceding invoice leaves off.
• In the seventh invoice, the docket entries dated November 4, 5, and 6, 2018, relate to a decision made by Mr. Williams and his wife, following receipt and service of RBC’s defence. Mr. Williams and his wife decided not to proceed further.

[28] There is no evidence from the applicants to suggest that they delivered any invoices for work done subsequent to November 6, 2018. Based on the absence of evidence in that regard and on the contents of the invoices delivered in 2017 and 2018, I find that the total amount of the fees, disbursements, and HST reflected in the seven invoices is $7,137.32.

[29] The Chart lists 11 payments made towards work done on the Small Claims Court proceeding. By my calculation, the payments made total $4,075.84. As of the date of the final payment (January 7, 2019) the principal balance outstanding for the seven invoices was $3,061.48 ($7,137.32 - $4,075.84). That is the amount outstanding as of the date on which the hearing of the application commenced.

[30] The principal balance of $3,061.48 does not account for any interest which may have accrued over time.

e) Summary

[31] The principal amounts outstanding for the four matters total $5,256.00 ($857.20 + $1,140.00 + $197.25 + $3,061.48, with the arithmetic total rounded to the next highest dollar amount).

Issue No. 2 – Are the applicants entitled to interest on the principal amount outstanding and, if so, how is interest calculated?

[32] The Solicitors Act, RSO 1990, c S.15 governs how a lawyer may charge interest on unpaid fees, charges, or disbursements. First, interest may only be charged commencing one month after the date on which an account is delivered to the client: s. 33(1). Second, the rate of interest the lawyer intends to charge must be stated on the invoices: s. 33(3).

[33] The Lieutenant Governor in Council has the authority to make a regulation setting a maximum rate at which a lawyer is entitled to charge interest: s. 33(4). The parties did not bring any such regulation to the court’s attention.

a) The Interest Rate

[34] The applicants request that simple interest be calculated semi-annually on outstanding amounts at the rate of 6.6 percent per year. The applicants base that request on the interest provisions in the Irrevocable Direction and the Promissory Note.

[35] The Irrevocable Direction refers to “interest as is chargeable under the Solicitor’s Act, currently at 6.6 percent per annum”. The same interest rate is stipulated in the Promissory Note, without explanation for the rate charged but with particulars as to the type (simple) and timing of the calculation (semi-annually) of interest.

[36] I contrast the interest rate stipulated in both the Irrevocable Direction and Promissory Note with the interest rate stipulated in the invoices included as exhibits to the Williams affidavit. Each invoice concludes with a statement that payment is due on receipt and “Pursuant to Section 33 of the Solicitor’s Act, 6% interest per annum will be charged.”

[37] The applicants do not provide any explanation or authority for the 6 percent interest rate stipulated in the invoices. Nor do the applicants explain the basis for the increase in the rate of interest, from 6 to 6.6 percent, when dealing with Mr. Williams in December 2019. Pursuant to s. 33 of the Solicitor’s Act, the maximum interest rate the applicants may be entitled to charge is the rate stipulated in their invoices. The request for interest at 6.6 percent is denied.

[38] Are the applicants entitled to interest at 6 percent per year? When one looks at the pre-judgment and post-judgment interest rates prescribed by the Courts of Justice Act, RSO 1990, c C.43, for 2017 and 2018, it is clear that the bank rates in those years were low. For example, from 2017 to 2020 the average pre-judgment interest rate ranged from 0.85 to 2 percent. In 2017, the average post-judgment interest rate was 2 percent; in 2018 and 2019, that average rate was 3 percent.

[39] In the absence of any authority to support charging interest at 6 percent, as stipulated in all of the invoices, I decline to allow interest at that rate. I rely on the post-judgment interest rates prescribed by statute and find that the applicants are entitled to interest on the outstanding principal amounts at the rate of 3 percent per year. The type of interest to which the applicants are entitled is simple interest, with interest accruing on a daily basis.

b) Calculation of Interest

[40] The applicants filed four application records; a factum; and two sets of supplemental point-form submissions. The applicants appeared on at least two occasions prior to the commencement of the hearing of the application. It would not be cost-effective, efficient, or proportionate to require the applicants to deliver evidence in support a calculation of interest at the rate of 3 percent.

[41] It would also not be an appropriate use of judicial resources for the court to calculate interest at the rate of 3 percent per year taking into consideration the dates on which payments were made (i.e., reducing the balance outstanding over time). If the applicants are entitled to payment of any of the outstanding balances, then interest would be calculated as follows:

• On the amount owing for the will, from September 18, 2020 (i.e., one month following the date of the relevant invoice);
• On the outstanding disbursements in the personal injury matter, from February 25, 2020 (i.e., one month following the date of the relevant invoice); and
• For the amounts outstanding for the application for a pardon and the Small Claims Court proceeding, from the date of the Documents.

[42] The calculation of any interest to which the applicants are entitled is addressed in a later section of these reasons.

Issue No. 3 – Are the applicants entitled to a charging order?

[43] In their factum, the applicants submit that “the sole issue is whether payments in the amount of $9,290.44 plus costs (collectively ‘fees’) should be ordered paid from the Settlement Proceeds.” Given the court’s determination under Issue Nos. 1 and 2, the sole issue, as framed by the applicants, is re-stated as follows: whether the applicants are entitled to payment of $5,256.00, plus interest at the rate of 3 percent per year, from the settlement funds currently held in trust by BLPC. The applicants’ requests for their costs of the application and for the enforcement of costs previously awarded in their favour are addressed in the concluding sections of these reasons.

a) The Law

[44] The court’s discretion to make a charging order is found in s. 34(1) of the Solicitors Act. That section reads 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”.

[45] The language of the above-quoted section is clear, where the criteria are met, the court has the discretion to grant a charging order related to the “Solicitor’s fees, costs, charges and disbursements in the proceeding” [emphasis added]. Therefore, the only “fees, costs, charges and disbursements” for which the applicants now before the court may be entitled to a charging order are those incurred in the personal injury matter: see Thomas Gold Pettinghill LLP v. Ani-Wall Concrete Forming Inc., 2012 ONSC 2182, 25 C.P.C. (7th) 110, at paras. 88 and 90.

[46] The onus is on the lawyer requesting the charging order to meet the criteria for a charging order. In Weenen v. Biadi, 2018 ONCA 288, 141 O.R. (3d) 276, at para. 15, the Court of Appeal of Ontario lists the three criteria:

(i) the fund or property is in existence at the time the order is granted [citations omitted];

(ii) the property was “recovered or preserved” through the instrumentality of the solicitor [citations omitted];

(iii) there must be some evidence that the client cannot or will not pay the lawyer’s fees [citations omitted].

[47] A claim for a charging order is a request for declaratory relief; it is not subject to a limitation period: Thomas Gold Pettinghill LLP, at paras. 95-98.

b) Analysis

[48] The first criterion is met—as of the date of these reasons, BPLC holds $40,000 in trust as property recovered in the personal injury matter.

[49] For the following reasons, I find that the second criterion is also met.

[50] The disbursements listed in the January 25, 2020 account relate to the collection of (a) healthcare records and reports, and (b) documents to support the subrogated claim Mr. Williams was required, by statute, to pursue on behalf of the Ministry of Health. It was essential that the applicants obtain those records. Those documents were required to support the quantum of the damages claimed on Mr. Williams’ behalf. Those documents would form part of the Schedule “A” documents listed in Mr. Williams’ affidavit of documents.

[51] In addition, those documents could potentially be introduced as evidence at trial or form the basis for evidence given at trial by either a participant expert or an expert witness.

[52] The other disbursement listed in the January 25, 2020 account is $100.00 for “Transaction Levy: Statement of Claim”. The court understands that entry to be for the mandatory transaction fee imposed on clients in matters of this kind. Regardless of which lawyer represented him, Mr. Williams was required to pay a fee of that kind.

[53] I am satisfied that the work of Dunlap Law to which the disbursements listed in the January 25, 2020, relate was instrumental to the pursuit and settlement of the personal injury matter.

[54] Last, the third criterion is met—Mr. Williams made it clear that he will not pay the applicants for any amounts outstanding related to the personal injury matter.

[55] The applicants are granted a charging order, against the settlement proceeds held in trust by BPLC, in the amount of $857.20, plus interest thereon at the rate of 3 percent per year from February 25, 2020 (i.e., 30 days after the date of the invoice) to the date of these reasons. By my calculation, interest accrued at $0.07 per day. ($857.20 x 0.03/365).

[56] The work done by the applicants regarding the will, application for a pardon, and Small Claims Court matter was not “in the proceeding” within the meaning of s. 34(1) of the Solicitor’s Act. Therefore, the amounts outstanding for fees, costs, charges, and disbursements in those matters do not fall within the scope of the charging order requested.

Issue No. 4 – Are the applicants entitled to payment of any outstanding balances that are not the subject of the charging order?

[57] The principal amount outstanding, which does not fall within the scope of the charging order, is $4,398.78 ($1,140.00 + 197.25 + $3,061.48).

[58] The amount found to be owing for the will ($1,140.00) has been outstanding since August 18, 2020. The notice of application was issued in May 2023—more than two and one-half years after the invoice was issued to Mr. Williams.

[59] For the application for a pardon and the Small Claims Court proceeding, the principal amounts outstanding were known or could have been accurately calculated by December 2019. As already explained, I find that the amounts referred to in the Documents are inaccurate. It would be unfair to Mr. Williams to enforce an obligation to pay, if such an obligation were found to exist, based on documents the court has concluded are inaccurate.

[60] With the applicants unable to rely on the Documents, it becomes necessary to consider the dates of the invoices related to the pardon application and the Small Claims Court proceedings. At the latest, those invoices, were delivered to Mr. Williams in 2018—at least four and a half years prior to the date on which the notice of application was issued.

[61] The applicants have not provided the court with any authority to support a conclusion that, in the matter before this court, the two-year limitation period set out in s. 4 of the Limitations Act, 2002, SO 2002, c 24, Sched B, does not apply to their pursuit of payment of invoices dated in 2020, 2018, or an earlier year.

[62] The claim for payment of the principal amounts outstanding and interest thereon for all matters other than the personal injury matter are statute-barred by reason of the expiration of the applicable limitation period.

[63] Given the court’s conclusions that (a) the applicants are not entitled to rely on the Documents; and (b) the claims for payment on three matters are statute-barred, it is not necessary for the court to address Mr. Williams’ allegation that his signature on the Documents are forgeries.

Disposition

[64] The applicants are entitled to a charging order against the settlement funds held in trust by BLPC. The monetary amount to be included in the charging order is the total of $857.20 and interest at $0.07 from February 25, 2020 to the date of these Reasons.

[65] The balance of the application is dismissed.

[66] BLPC requests and the court grants an order that BLPC shall pay to Dunlap Law, from the settlement proceeds, the total of the monetary amounts reflected in the charging order. With a term to that effect included in the order, Dunlap Law may efficiently recover the amount owing to it; the dealings between the applicants and Mr. Williams are brought to an end; and BLPC need not be involved any further in matters arising from the souring of the relationship between the applicants and Mr. Williams.

[67] In an earlier endorsement in this matter, M. Smith J. ordered that Mr. Williams pay the applicants costs thrown away of $500.00: Dunlap v. Williams, (September 7, 2023), Ottawa, CV-23-92089 (ONSC). Justice M. Smith left it to the discretion of the judge presiding on the application to determine the manner in which those costs shall be paid. Those costs shall be paid from settlement funds held in trust by BLPC. A term to that effect shall be included in the draft order to be submitted the court.

[68] With Mr. Williams self-represented, and because of the level of animus Mr. Williams holds towards the applicants, I dispense with the requirement for the applicants to obtain Mr. Williams’ approval as to the form and content of the draft order to be submitted to the court for signature. It is, however, necessary for the applicants to obtain the approval of BLPC to the form and content of the draft order.

[69] I conclude these reasons by dealing with the issue of costs.

Costs

[70] For the reasons explained below, there shall be no costs awarded of the application, other than those already awarded to the applicants. Of those costs, only $500.00 remain unpaid; they are addressed in the preceding section of these reasons.

[71] In the end, the applicants are entitled to payment of less than 15 percent of the amount they sought to recover. Mr. Williams achieved the greater measure of success on the application.

[72] The applicants’ approach to the proceeding was based on a lack of understanding of the applicable law (i.e., only amounts related to the personal injury matter are capable of being subject to a charging order).

[73] With the exception of an appearance with counsel to request an adjournment of the application, Mr. Williams has been self-represented throughout. The applicants were awarded costs of the adjournment; Mr. Williams is not entitled to costs related to that appearance.

[74] The court was not required to determine whether Mr. Williams personally signed the Documents. Mr. Williams’ position in that regard is, however, relevant to the court’s consideration of his potential entitlement to costs in the proceeding. In that context, I make the following observations:

• Mr. Williams’ allegation that his signature on the Documents are forgeries is a serious allegation and one to which the applicants understandably wished to respond. By making that allegation, Mr. Williams risked negative costs consequences. That allegation is one of the reasons why the court declines to award costs to Mr. Williams.
• The applicants’ response to the allegation of reliance on forged signatures includes an affidavit from the individual who witnessed Mr. Williams signing the Documents. That individual’s signature appears on the Documents in the capacity of witness. That individual is a non-lawyer employee of a law firm.
• Rather than rely exclusively on the non-lawyer employee’s affidavit, the applicants chose to retain a handwriting expert, obtain a report from that individual, and deliver an affidavit from that individual. That response was disproportionate to the amounts involved.
• The issue of Mr. Williams’ signatures on the Documents might have been avoided. The applicants could have arranged for Mr. Williams to obtain independent legal advice regarding the Documents before he signed them. There is no evidence to support a finding that the applicants took any steps in that regard.

[75] It is unfortunate when the relationship between a lawyer and their client sours. Sometimes the most cost-effective response to the souring of the relationship is to walk away and treat past events as water under the bridge. The outcome in this matter is a cautionary tale as to what can happen when the individuals involved choose an adversarial path.

Date: June 25, 2025
Sylvia Corthorn