MOTION for a charging order or a solicitor’s lien.
Sarah Turney and Anastasia Reklitis, for moving party Fasken
Martineau DuMoulin LLP.
Yan David Payne, for responding party Matthew Weenen.
BY THE COURT: —
Overview
[1] Fasken Martin DuMoulin LLP (the “law firm”) successfully
represented Matthew Weenen (the “client”) in an action against
his neighbour, Graziano Biadi. The client had sought damages
against Biadi, for causing flooding on the client’s property. After
an 18-day trial, Mr. Biadi was ordered to pay the client $390,000
in damages and $550,000 in costs. In June 2017, this court dismissed Mr. Biadi’s appeal of the damages award and ordered him
to pay the client his costs of the appeal in the amount of $50,000.
[2] After the appeal was dismissed, the law firm brought
a motion to this court for a charge or lien in the amount of
$360,836.88 on the funds Mr. Biadi has been ordered to pay the
client. The law firm seeks this remedy as either a charging order
under s. 34(1) of the Solicitors Act, R.S.O. 1990, c. S.15 or a lien
under the court’s inherent jurisdiction. The sum of $360,836.88 is
the remaining balance the law firm says it is owed out of the approximately $820,000 in fees and disbursements it charged the
client for representing him in these proceedings.
[3] The client contests the amount owed to the law firm. He
initiated an assessment process before the law firm brought this
motion.
[4] When it initially brought its motion, the law firm sought
only a charging order under s. 34 of the Solicitors Act. Section 34
provides as follows:
34(1) 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.
[5] The motion was first heard by Brown J.A., sitting alone.
However, Brown J.A. questioned this court’s jurisdiction to grant
a s. 34 charging order to secure solicitors’ fees over the damages
and costs awarded by the Superior Court. In the light of his concern, the matter was referred to the panel that heard the appeal.
[6] The law firm then sought to amend its notice of motion to
add an alternative claim for a lien for its fees and disbursements
based on the court’s inherent jurisdiction. This request was
