



COURT OF APPEAL FOR ONTARIO

CITATION: UL Lawyers Professional
    Corporation v. Notay, 2022 ONCA 8

DATE: 20220112

DOCKET: C69327

Doherty, Tulloch and Thorburn
    JJ.A.

BETWEEN

UL Lawyers Professional
    Corporation

Applicant (Appellant)

and

Jasbir Notay

Respondent (Respondent in Appeal)

Sunish R. Uppal and Vismay Merja, for
    the appellant

Jamie Min, for the respondent

Heard: January 5, 2022 by
    video conference

On appeal from the order of Justice
    Thomas A. Bielby of the Superior Court of Justice, dated March 23, 2021.

REASONS FOR DECISION

[1]

The appellant law firm (UL) acted for the
    respondent in motor vehicle litigation. The respondent discharged UL and
    retained the Naimark Law firm (Naimark). UL sought an undertaking from
    Naimark to protect ULs account for legal fees and disbursements arising out of
    the retainer with Mr. Notay. Ultimately, no undertaking satisfactory to UL was
    provided by Naimark. UL sought a solicitors lien in the amount of $73,195.75
    against the proceeds of the settlement of the accident benefit claims arising
    out of the motor vehicle litigation.

[2]

The application judge identified the three
    criteria which must be satisfied to obtain a solicitors charging order. The
    solicitor must show:

·

the fund or property over which the charging
    order is sought is in existence at the time the order is sought;

·

the property must have been recovered or preserved
    through the instrumentality of the solicitor; and

·

there must be some evidence that the client
    cannot or will not pay the lawyers account: see
Bilek v. Salter Estate
,
    2009 CanLII 58582 (ONSC).

[3]

The application judge was satisfied the first
    two criteria were met. He concluded, however, that there was no evidence the
    client would not or could not pay the fees. The application judge relied on
    what he found to be a clear undertaking given by Naimark to protect ULs
    account for fees and disbursements.

[4]

Counsel for UL submits the application judge
    made a palpable and overriding error in concluding that a clear undertaking had
    been given by Naimark. In addition to alleged errors in respect of the evidence
    before the application judge, counsel also relies on the fact that after the
    application judges decision, Mr. Notay commenced a $5,000,000 lawsuit against
    UL. In that action, he claims that UL was negligent and in breach of its
    fiduciary duty to him in the context of the tort litigation arising out of the
    automobile accidents. UL argues that this lawsuit, on its own, constitutes
    some evidence that the client cannot or will not pay ULs fees and
    disbursements.

[5]

The evidentiary burden on a solicitor to show
    the client cannot or will not pay the lawyers fees is a low one. There need
    only be some evidence. The evidence before the application judge arguably
    cleared that evidentiary hurdle. The undertaking relied on by Naimark was
    arguably ambiguous. Naimarks refusal to provide an undertaking in the terms
    requested by UL, and its delay in responding to ULs request for clarification,
    along with disputes over the amounts of certain disbursements, provide reasons
    to doubt that Mr. Notay would pay the fees and disbursements in issue.
    Furthermore, after about four months of wrangling over the terms of the
    undertaking to pay ULs fees and disbursements, Naimark appeared to further
    qualify the undertaking to protect ULs fees by including the indication that
    any undertaking would be subject to the clients approval. No approval was
    forthcoming. Finally, the tone of the communications between UL and Naimark
    took on a decidedly hostile tone, suggestive of the possibility of litigation
    over ULs fees and disbursements.

[6]

Ultimately, it is unnecessary to decide whether
    the application judge made a clear and palpable error in declining to make the
    order sought by UL. The lawsuit commenced by Mr. Notay after the application
    was heard, considered along with the factors identified by the application
    judge, provides some evidence that Mr. Notay would not pay ULs account.

[7]

The appeal is allowed. UL is entitled to a
    solicitors lien on the funds obtained through settlement of the accident
    benefit claims in the litigation brought on Mr. Notays behalf in the amount of
    $73,195.75.

[8]

The appellant, having successfully reversed the
    result on the application, is entitled to costs on the application. We fix
    those costs at $1,662 plus H.S.T., the amount the application judge had awarded
    to Mr. Notay on the application. UL is also entitled to costs of the appeal. We
    fix those costs in the amount of $4,867, inclusive of disbursements and H.S.T.

Doherty
    J.A.

M.
    Tulloch J.A.

J.A.
    Thorburn J.A.


