Hodge v. Neinstein

Hodge v. Neinstein

The court dismissed the Firm's appeal and held it was not plain and obvious that claims based on non‑compliance with s.28.1(8)/(9) are barred by ss.23‑25 of the Solicitors Act; solicitor‑client privilege was not an insurmountable barrier to certification and could be managed; the Divisional Court properly certified common issues 1‑19 except common issue 3 which the Court deleted; the class certification otherwise satisfied s.5(1) of the CPA; cross‑appeal allowed in part (certain amendments/certified issues granted or left to case management) and leave to amend for breach of contract granted.

Citation
2017 ONCA 494
Parties
Applicant / Respondent (cross‑appeal): Cassie Hodge; Respondent / Appellant (cross‑appeal): Gary Neinstein; Respondent / Appellant (cross‑appeal): Neinstein & Associates LLP
Court
Court of Appeal for Ontario
Jurisdiction
Canada
Judgment Date
15 June 2017
Procedural Posture
Class Action Certification Appeal (civil) / Court of Appeal Judgment on Appeal From Divisional Court Certification Order
Outcome
Appeal dismissed; cross‑appeal allowed in part; certification order varied
Legal Topics
Class Certification, Contingency Fee Agreements (solicitors Act S.28.1), Solicitors Act Ss.23 25 Complete Code Doctrine, Solicitor‑client Privilege, Breach of Fiduciary Duty, Disgorgement and Remedies, Preferable Procedure
Source Language
English
Civil Class Actions Professional Regulation of Lawyers Contract and Fiduciary Law Class Certification Contingency Fee Agreements (solicitors Act S.28.1) Solicitors Act Ss.23 25 Complete Code Doctrine Solicitor‑client Privilege +3 more

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Parties

Cassie Hodge

Applicant / Respondent (cross‑appeal)

Gary Neinstein

Respondent / Appellant (cross‑appeal)

Neinstein & Associates LLP

Respondent / Appellant (cross‑appeal)

Procedural Posture

Class Action Certification Appeal (civil) / Court of Appeal Judgment on Appeal From Divisional Court Certification Order

Legal Issues

  1. 1 Whether ss.23-25 of the Solicitors Act constitute a complete code precluding civil claims and class proceedings
  2. 2 Whether claims founded on non‑compliance with Solicitors Act s.28.1(8)/(9) disclose a cause of action
  3. 3 Whether common issues exist suitable for class certification and which issues are common

Ratio Decidendi

The court dismissed the Firm's appeal and held it was not plain and obvious that claims based on non‑compliance with s.28.1(8)/(9) are barred by ss.23‑25 of the Solicitors Act; solicitor‑client privilege was not an insurmountable barrier to certification and could be managed; the Divisional Court properly certified common issues 1‑19 except common issue 3 which the Court deleted; the class certification otherwise satisfied s.5(1) of the CPA; cross‑appeal allowed in part (certain amendments/certified issues granted or left to case management) and leave to amend for breach of contract granted.

Court Disposition

Appeal dismissed; cross‑appeal allowed in part; certification order varied

Orders

  • Appeal dismissed
  • Cross‑appeal allowed in part; certification order varied by deleting common issue 3