however, require that the parties jointly apply for payment and
that the court make its own determination of whether the
circumstances of the case justify the payment.
 Nor is the client placed in an unfair position by a provision
in a contingency fee agreement which requires the client to eventually support the lawyer’s application for payment of a premium.
Presumably, a client who agrees to give up the effective veto over
the payment contemplated by s. 28.1(8) does so upon a consideration of the other terms of the contingency fee agreement, and in
particular the percentage of the damages the client will be
required to pay to the lawyer under the agreement.
 Mr. Almalki was also in a position to assess the likelihood
of “exceptional circumstances” developing in the course of this
litigation. Anyone familiar with the nature of this lawsuit — and
Mr. Almalki certainly was — would have had no difficulty anticipating that this litigation would be anything but routine and
 The interpretation favoured by the motion judge also
promotes the effective operation of the client and solicitor rela-
tionship in cases where the retainer involves a contingency fee
agreement. The motion judge made this point, at para. 19:
Securing the clients’ agreement to jointly apply to the court pursuant to
s. 28.1(8) of the Act at the commencement of the solicitor and client rela-
tionship is not limited by the Act. There is good reason for this. The pur-
pose of a contingency fee agreement in part is for the client and the lawyer
to fully understand and agree to all terms that will determine the amount
of money received by each party upon the completion of the solicitor and
client relationship. The agreement provides both the lawyer and the client
with equal expectations of legal fees that the client cannot otherwise pay
for throughout the course of the litigation. It is prudent therefore for the
parties to negotiate, agree and set out their intention concerning excep-
tional circumstances at the beginning of the relationship. This prevents
conflict at the end of the relationship as a result of second thoughts or
a reconsideration of fees and highlights the potentially impactful conse-
quences of judicial approval in this regard on the distribution of the
 The appellants are not left unprotected by the motion
judge’s interpretation of s. 28.1(8). The Act protects the interests
of the client in at least two ways. First, the judge hearing the
s. 28.1(8) application must be convinced that “exceptional
circumstances” exist. In making that assessment, the court will
bear in mind its obligation to protect the client’s interests.
Second, 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. Those fees must
be “fair and reasonable”.