St. Jean et al. v. Armstrong et al.
Pothier (by his Litigation Guardian Pothier) v. Royal &
Sun Alliance Insurance Company of Canada
[Indexed as: St. Jean v. Armstrong]
2017 ONCA 145
Court of Appeal for Ontario, MacFarland, van Rensburg and Huscroft JJ.A.
February 21, 2017
Professions — Barristers and solicitors — Fees — Contingency fee
agreement providing that solicitor would receive one-third of client’s
recovery if he obtained settlement of tort claim and accident benefits
claim — Both claims settled — Motion judge not erring in considering
fee claims for tort action and accident benefits action separately and
reducing fee for action benefits claim on basis that that claim did not
entail same level of risk and complexity as tort claim.
The infant plaintiff suffered a traumatic brain injury in a motor vehicle accident. The solicitor was retained to act in relation to both tort and accident benefits claims. He and the client entered into a contingency fee agreement which
provided that, if the solicitor obtained a settlement of the claims, he would
receive one-third of the client’s recovery plus GST. A settlement was obtained.
On a motion for approval of the infant settlement, the motion judge reduced
the fees on the accident benefits claim and did not award GST/HST. The solicitor
Held, the appeal should be allowed in part.
The motion judge did not err in considering the fee claims for the tort action
and the accident benefits action separately, or in reducing the fee for the latter
claim on the basis that the accident benefits claim did not entail the same level of
risk and complexity as the tort claim.
The motion judge erred in not awarding GST/HST.
Cases referred to
Adler (Litigation guardian of) v. State Farm Mutual Automobile Insurance Co.
(2008), 92 O.R. (3d) 266,  O.J. No. 2666, 66 C.C.L.I (4th) 95, 56 C.P.C. (6th)
347, 168 A.C.W.S. (3d) 390 (S.C.J.); Henricks-Hunter (Litigation guardian of) v.
814888 Ontario Inc. (c.o.b. Phoenix Concert Theatre),  O.J. No. 3207,
2012 ONCA 496, 294 O.A.C. 333; Raphael Partners v. Lam (2002), 61 O.R. (3d)
417,  O.J. No. 3605, 164 O.A.C. 129, 24 C.P.C. (5th) 33, 218 D.L.R. (4th)
701, 117 A.C. W.S. (3d) 335 (C.A.)
APPEAL from the judgment of Del Frate J. of the Superior
Court of Justice dated May 4, 2015 for an award of fees.
Geoffrey Adair, Q.C., and Kathleen Erin Cullin, for appellant
Cindy St. Jean.
No one appearing for respondents.