applied to the infant plaintiffs and approving the payment of legal fees under
the terms of the contingency fee agreement. The pre-trial conference judge
approved the terms of the settlement but, because the clients were contesting
the solicitors’ right to claim a portion of their legal costs, adjourned the issue
concerning the contingency fee to another judge. The solicitors brought a supplementary motion seeking enforcement of the contingency fee agreement. The
motion judge held that paras. 15 and 16 of the agreement were binding on the
clients and that they were required to join in the application under s. 28.1(8).
The motion judge subsequently held that the solicitors had established that
“exceptional circumstances” existed and that they were therefore entitled to
a portion of the amount paid to the clients as legal costs as part of the contingency fee agreement. The clients appealed.
Held, the appeal should be dismissed.
It was permissible for the solicitors to proceed by way of motion within the existing
action rather than commencing a new proceeding by application. The word
“apply” in s. 28.1(8) of the Solicitors Act merely indicates that the clients and solicitors must jointly put the matter before the court. An application was not the only
mode of putting the matter before the court.
The motion judge correctly interpreted para. 16 as not leaving the clients free to
take the position that there were no “exceptional circumstances” for the purposes
of s. 28.1(8) of the Solicitors Act. One cannot “join in” an application and at the
same time oppose that application. Paragraph 16 was not unenforceable on the
basis that it was contrary to s. 28.1(8) of the Act. To facilitate access to justice, the
Act contemplates fees that may include a payment by way of a premium of an
amount from any costs paid to the client. The Act imposes no limitation on the
parties agreeing to that payment, apart from requiring that the parties apply jointly for payment and that the court make its own determination of whether exceptional circumstances exist. The clients were not left unprotected by the motion
judge’s interpretation of s. 28.1(8). In determining whether “exceptional circumstances” exist, a judge hearing a s. 28.1 application will bear in mind his or her
obligation to protect the client’s interests. Moreover, the client can seek an
assessment of the fees generated under the contingency fee agreement, including
any payment of a premium, pursuant to ss. 23 and 24 of the Act.
The motion judge did not err in finding that “exceptional circumstances” existed
in this case.
Cases referred to
56 King Inc. v. Aviva Canada Inc.,  O.J. No. 2627, 2017 ONCA 408, 68
C.C.L.I. (5th) 197, 279 A.C.W.S. (3d) 395; Almalki v. Canada (Attorney General),
 O.J. No. 4456, 2017 ONSC 3857 (S.C.J.); Cookish v. Paul Lee Associates
Professional Corp.,  O.J. No. 1947, 2013 ONCA 278, 305 O.A.C. 359, 39 C.P.C.
(7th) 227; 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, 28
C.P.C. (7th) 227; Jean Estate v. Wires Jolley LLP (2009), 96 O.R. (3d) 171,  O.J.
No. 1734, 2009 ONCA 339, 265 O.A.C. 1, 310 D.L.R. (4th) 95, 47 E. T.R. (3d) 20, 68
C.P.C. (6th) 1; Raphael Partners v. Lam (2002), 61 O.R. (3d) 417,  O.J. No.
3605, 218 D.L.R. (4th) 701, 164 O.A.C. 129, 24 C.P.C. (5th) 33, 117 A.C. W.S. (3d) 335
(C.A.); Zeppieri & Associates v. Gupta,  O.J. No. 5355, 2016 ONSC 6491 (S.C.J.)
Statutes referred to
Solicitors Act, R.S.O. 1990, c. S.15 [as am.], ss. 23 [as am.], 24, 28.1, (8), (a), (b),