



COURT OF APPEAL FOR ONTARIO

CITATION: Weenen v. Biadi, 2017 ONCA 738

DATE: 20170928

DOCKET: M48284 & M48317 (C61429)

Brown J.A. (In Chambers)

BETWEEN

Matthew Weenen

Plaintiff

(Respondent/Responding
    Party)

and

Graziano Biadi

Defendant

(Appellant/Responding
    Party)

Alex Cameron and Anastasia Reklitis, for the moving party, Fasken
    Martineau DuMoulin LLP

Yan David Payne, for the responding party, Matthew Weenen

Heard: September 21, 2017

ENDORSEMENT

[1]

The moving party Solicitor, Fasken Martineau DuMolin LLP, moves under s.
    34(1) of the
Solicitors Act
, R.S.O. 1990, c. S.15, for an order
    charging the damages and costs awarded to the responding party Client, Matthew
    Weenen, at the trial of this action (2015 ONSC 6832) and on appeal (2017 ONCA
    533).

[2]

The fees the Solicitor alleges remain outstanding total about $360,000,
    consisting of fees and disbursements incurred for both the trial and appeal.
    The Client has initiated assessment proceedings against the Solicitor.

[3]

Section 34(1) of the
Solicitors Act
reads as follows:

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 solicitors fees, costs, charges and disbursements in the proceeding.

[4]

The language of the section speaks only about proceedings in the
    Superior Court of Justice. Ground J., at para. 12 of
Budinsky v. The Breakers
    East Inc.
, [1993] O.J. No. 1984, 106 D.L.R. (4
th
) 370 (Gen.
    Div.), wrote:

In my view,
s. 34(1)
of the
Solicitors Act
must be interpreted as statutory authority only for the Ontario Court
    of Justice (General Division) granting a charge on solicitors' fees, costs,
    charges and disbursements incurred in proceedings before the Ontario Court of
    Justice (General Division).

[5]

At the commencement of the motion, I asked Solicitors counsel whether
    he had any authority from this court on two questions:

(i)      Wherein
    lies the jurisdiction of the Ontario Court of Appeal to grant a charging order
    to secure solicitors fees?

(ii)     If
    there is such jurisdiction, is it limited only to granting a charging order in
    respect of fees and disbursements incurred in appeal proceedings before this
    court, or can this court also grant a charging order in respect of fees and
    disbursements incurred below in the Superior Court of Justice?

[6]

Counsel was not able to refer to any authority.

[7]

Clients counsel included in his authorities the decision of this court
    in
Kushnir v. Lowry
, [2003] O.J. No. 4093 (C.A.), in which a panel of
    this court refused to grant a charging order. The brief endorsement did not
    discuss the issue of jurisdiction.

[8]

My uncertainty about this courts jurisdiction, coupled with the
    practical need to determine a question relevant to both solicitors and clients,
    leads me to adjourn this motion to a panel of this court:
Courts of Justice
    Act
, R.S.O. 1990, c. C.43, s. 7(4). I think a question of jurisdiction is
    best decided by a panel, not a single judge sitting in Chambers.

[9]

I therefore adjourn this motion for a charging order to a panel.

[10]

Given
    the confidential nature of much of the material filed on this motion, I order
    the materials already filed, together with any further materials filed on the
    motion, to be sealed.

[11]

Any
    costs of todays attendance are reserved to the panel hearing the motion.

David Brown J.A.


