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Court of Appeal for Ontario dismissed an appeal on whether Paul Kasanda was a client of the lawyers for a solicitor-client relationship and account assessment.
The appeal was dismissed because the motion judge properly found the action to be an abuse of process: it contravened s.2(1) of the Solicitors Act by being commenced within one month of delivery of the solicitor's bill, the appellant lacked required leave to proceed under s.8 and to file further materials contrary to the case conference order, and the findings on amendment and burden of proof were not erroneous.
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The appeal was dismissed because the motion judge correctly exercised his discretion: the property had been preserved earlier in other proceedings and the appellant did not obtain any order recovering or preserving property through its instrumentality, so the s.34 charging order test was not met.
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The application judge correctly exercised her jurisdiction under both ss.24 and 25 of the Solicitors Act, was entitled to assess the fairness and reasonableness of the Accident Benefit Claim fee in ordering repayment, did not err in principle or give insufficient reasons in considering docketed hours within a wider multi-factor analysis, and the Court of Appeal will not interfere with the discretionary determinations; therefore the appeal is dismissed.
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The Court of Appeal upheld the application judge's discretionary order granting a statutory charge under s.34(1) because the solicitor satisfied the statutory test, the appellant was found unwilling or unable to pay, there was no palpable and overriding error, and the certificate of pending litigation did not prevent the grant of the charge.
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The Court held the appellant did not satisfy the s.34 requirement of being "instrumental" in recovering or preserving the property because the property and proceeds were always registered solely in the client’s name, and even if instrumental the discretionary remedy would not have been granted; the trial judge correctly exercised his power under r.25(19)(c) to amend the orders to retain the balance in trust and to permit payment of the respondent’s costs from those monies. The appeal was dismissed.
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The contingency fee agreement was unenforceable under the Solicitors Act but SK was entitled to reasonable compensation assessed on a quantum meruit basis; the application judge's quantum meruit assessment was reasonable and should be upheld; however the application judge erred by deciding an apparent $16,100 double-counting of disbursements without giving the parties an opportunity to address it, and that deduction was set aside; costs were varied to $20,000 in favour of Lima and SK's leave to appeal costs was denied.
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The Court of Appeal dismissed the appeals: it upheld the application judge's finding that the CFA was unenforceable because it was entered into with a person under disability without involvement/approval of the litigation guardian and without the required court approval under s.5 of O. Reg. 195/04, would not exercise s.24 to enforce the CFA as not fair and reasonable on the facts, and rejected the claim for a charging order under s.34 because the ATE proceeds were not property recovered or preserved through the solicitor's instrumentality (solicitor acted as intermediary/broker); consequently…
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The appeal is dismissed because the appellants, represented by counsel, entered into commercial agreements and signed comprehensive releases acknowledging and accepting the legal fees; they failed to demonstrate the 'special circumstances' required by ss.9(1) and 11 of the Solicitors Act to justify an assessment after payment, so the releases preclude assessment of the accounts.
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The referral of the contested solicitor's account for assessment is interlocutory because it does not determine the substantive dispute about the quantum of the account; therefore the Court of Appeal lacks jurisdiction and any appeal lies to the Divisional Court with leave under s.19(1)(b) Courts of Justice Act.
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