



COURT OF APPEAL FOR ONTARIO

CITATION: Manthadi v. ASCO Manufacturing,
    2020 ONCA 839

DATE: 20201222

DOCKET: M52033 (C67556) & M52032
    (C67351)

Thorburn
    J.A. (Motions Judge)

BETWEEN

Sandra
    Manthadi

Plaintiff (Respondent)

and

ASCO
    Manufacturing

Defendant (Appellant/Responding Party)

BETWEEN

Nadeem
    Ahmed Mughal also known as Nadeem Mughal

Plaintiff (Respondent/Responding Party)

and

Bama
    Inc., Abdul Raheem Qureshi, Et Zone Supplies Inc., Zainab Sayeed Noman, Badar
    Sohail Khan,
Mansoor Ahmed Khan
and Muhammad Noman Yusuf also known as
    Muhammad Yusuf

Defendants (
Appellant
)

John S. Contini, for the moving party,
    John S. Contini Law Professional Corporation

Ranbir Mann, for the responding
    parties, ASCO Manufacturing and Nadeem Mughal

Heard: in writing

REASONS
    FOR DECISION

RELIEF SOUGHT

[1]

John S. Contini Law Professional Corporation (Contini), t
he former solicitor for the responding parties ASCO Manufacturing
    and Nadeem Mughal
, brings two companion motions for solicitors liens.

[2]

In
court file C67556 (
the ASCO
    claim), Contini seeks a lien on
the costs awarded to
    his then client
, ASCO Manufacturing, when ASCO Manufacturings appeal was
    allowed.

[3]

In
court file C67351 (
the
    Mughal claim), Contini seeks a lien on the costs awarded to his then client,
    Mughal, when the appeal brought by the opposing party was dismissed, and when
    the $150,000 that Abdul Raheem Qureshi had paid into court was ordered to be
    paid out with costs, in a related appeal.

[4]

The amount of the liens sought by Contini is $6,611.24 in respect of the
    ASCO claim and $19,330.10 in respect of the Mughal claim.

THE LAW

[5]

This court has the jurisdiction to issue a lien or charging order over
    accounts pursuant to s. 34(1) of the
Solicitors Act
or issue a lien
    pursuant to the courts inherent jurisdiction:
Weenen v. Biadi
, 2018
    ONCA 288, 141 O.R. (3d) 276, at para. 10. Such a request is properly
    brought by motion to a single judge, pursuant to ss. 7(2) and (3) of the
Courts
    of Justice Act
, R.S.O. 1990, c. C.43.

[6]

In order for the court to order a solicitors lien pursuant to s. 34(1),
    the solicitor must demonstrate that:

a)

the fund exists;

b)

the property was recovered or preserved through the efforts of the
    solicitor; and

c)

there is some evidence that the client cannot or will not pay the fees.

[7]

An undertaking affords none of the protections
    of a solicitors lien. Solicitors liens and charging orders are intended
    therefore, in appropriate circumstances, to protect lawyers interests by
    granting the lienholder priority over the claims of other creditors. As stated
    in
Dalcor Inc. v. Unimac Group Ltd.
, et al, 2017 ONSC 945, paras.
    45-46:

Solicitors charging orders are a unique right
    granted to solicitors by statute, common law and law of equity to protect
    solicitors services and to encourage and facilitate legal representation of
    persons who cannot necessarily afford to pay for legal services as these
    services are incurred. All persons  must be assumed to be aware that the fund
    is considered as subject to the deduction of the costs to be paid to the
    solicitor who has conducted the litigation which is successful

[A]ny property that is recovered or preserved
    instrumentally through the services of a solicitor are subject to the costs
    incurred by that solicitor.

[8]

In deciding whether to grant a solicitors lien, the
    court must balance the circumstances and equities of each case:
Weenen
,
    at para. 14. Concerns about willingness to pay clearly favour the granting of a
    solicitors lien, which takes priority over the claims of creditors:
Weenen,
at para.

15;
Foley
    v. Davis
, 1996 CanLII 1145 (Ont. C.A.), at para. 2.

ANALYSIS AND CONCLUSION

[9]

In each of these cases, there is a fund in existence.

[10]

ASCO concedes that the full sum of
$6,611.24 was recovered or
    preserved through the efforts of Contini.

[11]

Mughal concedes that the $10,551.48 costs award
    was recovered through the instrumentality of Contini. Mughal claims however,
    that the $150,000 paid out of court on the motion in the related appeal by
    Abdul Raheem Qureshi should be sought in a separate motion.

[12]

In my view, a second motion is not necessary as
    it would serve only to create unnecessary inefficiencies and costs for the
    parties and the court.

[13]

Both
    respondents also claim that:

a)

During the course of their litigation, they paid Contini more
    than the amounts sought; and

b)

Contini has failed to show that either
    respondent cannot or will not pay Continis fees.

[14]

The moving party Contini correctly notes that prior payments for
    other steps in the litigation are not relevant to this motion as there is a
    fund recovered through the instrumentality of Contini that is available to
    protect Continis unpaid receivables. The amounts can therefore be subject to a
    solicitors lien to secure those funds, pending resolution of their dispute.

[15]

Moreover, in both cases, the moving party Contini has adduced
    evidence to support his claim that the responding parties cannot or will not
    pay his fees.

[16]

In
    the case of the ASCO appeal, p
rior to the hearing of the
    appeal, express representations were made that Continis receivables would be
    paid. Only after the appeal was allowed and arrangements made to receive the
    $12,300 costs award did the responding party ASCO refuse to pay Continis
    receivable, and indicate that they intended to assess his invoices.

[17]

In the Mughal matter, the trial Judge awarded
    Mughal $210,000 after he had been defrauded this amount by the defendants. The
    trial judge found that this sum represented Mughals retirement savings and
    borrowed funds, which Mughal must repay. The trial Judge also awarded Mughal
    substantial indemnity costs of $133,501.61. This Court held that the $150,000
    be paid out of court to Mughal, subject to the condition that the funds be
    repaid by Mughal if Qureshis appeal is successful.

[18]

In the Mughal appeal, prior to receipt of the
    funds recovered through the instrumentality of Contini, express representations
    were made to Contini that his receivables would be paid and he continued to
    work on the appeals.

[19]

Moreover, after the appeal was dismissed and the
    $150,000 paid out of court, Mughal resiled from the position that Continis
    receivable would be paid. He refused to pay it and instead suggested that he
    intended to assess his invoices.

[20]

Only after these motions were brought did the responding parties
    take the position that Contini should accept their counsels undertakings to
    hold the funds in trust in lieu of a solicitors lien, and suggest there is no
    evidence they
cannot or will not pay Continis fees.

[21]

For these reasons, I accept that, without a
    solicitors lien, there is a significant risk Mughal will not or may not be
    willing and or able to pay Continis receivables.

[22]

The undertaking provided by Mughal and his
    counsel, Ranbir Mann, affords none of the protections of a solicitors lien in
    the event that Mughal or Mann fail to abide by the undertaking or other
    creditors assert claims against the monies presently held in trust by Mann. It
    is therefore unreasonable to expect Contini to rely on such an undertaking in
    lieu of a solicitors lien.

[23]

Continis
    motions are therefore granted.

[24]

A
    solicitors lien is ordered on funds in an amount to be agreed upon or assessed
    for Continis disbursements and legal fees which now are $6,611.24 in respect
    of ASCO claim. This lien is
in priority to all other charges
    against the $12,300.00 in costs awarded to ASCO, pursuant to the Costs order in
    this appeal and an order directing that the $6,611.24 be paid into court, or
    alternatively held in trust by ASCOs counsel, Ranbir Mann, pending the outcome
    of the assessments and costs.

[25]

A
    solicitors lien is ordered in the amount of $19,330.10 in respect of an amount
    agreed on or assessed for disbursements and legal fees
, in
    priority to any and all other charges that may exist, against the $10,551.48 in
    costs awarded to Mughal on the dismissal of this appeal and the monies paid out
    of court and costs in the Qureshi Appeal and an order that $19,330.10 be paid
    into court, or alternatively held in trust by Mann, pending the outcome of the
    assessments.

J.A.
    Thorburn J.A.


