



COURT OF APPEAL FOR ONTARIO

CITATION: Fancy Barristers P.C. v. Morse Shannon LLP, 2017
    ONCA 82

DATE: 20170131

DOCKET: C62453

Benotto, Brown, and Miller JJ.A.

BETWEEN

Fancy Barristers, P.C., Hassan Fancy, Nathaniel
    Hughes, by his Litigation Guardian Adam Hughes, Adam Hughes, personally, and
    Dawn Pearson

Appellants

and

Morse Shannon, LLP

Respondent

AND BETWEEN

Fancy Barristers, P.C.,
    Hassan Fancy, Ibrahim Nasir, by his litigation guardian Tahir Nasir, and Tahir
    Nasir, personally

Appellants

and

Morse Shannon, LLP

Respondent

Shahzed Siddiqui, for the appellants

Jerome R. Morse, for the respondent

Heard: January 23, 2017

On appeal from the judgment of Justice D.A. Wilson of the
    Superior Court of Justice, dated June 27, 2016.

ENDORSEMENT

[1]

This appeal involves a dispute between law firms that resulted in a
    charging order granted by the application judge for fees.

[2]

Fancy Barristers P.C. (Fancy) was retained on a contingency fee basis
    by two minor plaintiffs in two separate actions: one for medical negligence;
    and the other for motor vehicle injury. Both clients signed agreements with
    Fancy in the following terms:

the client agrees to pay to Fancy Barristers P.C. as and for
    their fees, twenty five percent (25%) of all amounts recovered on the clients
    behalf (paid and received) plus party and party costs plus GST excluding costs
    and disbursements, regardless of the source of said recovery, in respect of
    clients claims. The client shall also pay for disbursements and for GST on the
    fees and disbursements which shall likely be collected from the insurer.

[3]

Fancy then retained Morse Shannon LLP (Morse) pursuant to two agency
    agreements to assist with pursuing the two claims. The agency agreements
    provided that Morse and Fancy would split the fees in the two actions after
    repayment for docketed time and disbursements.

[4]

Morse spent time on the two actions and incurred fees and disbursements.
    However, the relationship between Morse and Fancy broke down and eventually
    Fancy terminated the agency agreements. Fancy did not pay Morse for its
    docketed time or disbursements. Nor did Fancy provide an undertaking to pay
    Morse out of any eventual proceeds from the actions.

[5]

Morse applied for charging orders in both actions under s. 34 of the
Solicitors
    Act
, R.S.O. 1990, c. S.15, to ensure that it would be paid out of any
    eventual proceeds.

[6]

The application judge granted the orders.

[7]

Fancy appeals, and submits that the application judge erred by granting
    the charging orders. It submits that Morse does not have a retainer agreement
    with the minor plaintiffs; that there was no outstanding account between Morse
    and the minor plaintiffs; that the test to obtain a charging order was not met,
    as there was no fund yet in existence; that the order is inequitable; and that
    the order should have been limited to a specific amount.

[8]

We do not accept these submissions.

[9]

Section 34 of the
Solicitors Act
provides that the court may
    grant a charge on property recovered or preserved through the instrumentality
    of the solicitor for the solicitors fees, costs, charges and disbursements.
    The test for a charging order is well-established: see
Thomas Gold Pettinghill
    LLP v. Ani-Wall Concrete Forming Inc.
, 2012 ONSC 2182, 349 D.L.R. (4th)
    431, at paras. 84-88. Here, the respondent Morse was employed to prosecute the
    litigation; the funds  in the form of a chose in action - were in existence at
    the time the order was granted; the funds were recovered through the
    instrumentality of the lawyer; and, as found by the application judge, there
    was evidence that the lawyers account would not be paid. The application judge
    applied this test and there is no reason to interfere with the exercise of her
    discretion.

[10]

During the course of oral argument, the panel raised the terms of the
    charging order which appear to cover the entire proceeds of the plaintiffs recovery,
    not just the 25% referred to in the agreements. Fancy relied on this as a
    further ground to set aside the order. However, Morse acknowledged that it was
    never its intent to interpret the order to apply to the entire proceeds. It
    referred to the notice of application and the claims made against Fancy in
    support of this position. In our view, had this issue been raised as the only
    ground of appeal, Morse would have consented and the appeal would not have been
    necessary. It is clear in the application judges comments that the charging
    order was to apply to the 25% plus fees and disbursements only, not the entire
    recovery. The order may, if necessary, be amended accordingly.

[11]

Fancy further submitted that the application judge was biased. It relies
    on the fact that she appears to have changed her view on certain points.

[12]

There is a strong presumption of judicial impartiality and a heavy
    burden on a party who seeks to rebut this presumption. Judicial impartiality
    has been called the key to our judicial process:
Wewaykum Indian Band v.
    Canada
, 2003 SCC 45, [2003] 2 S.C.R. 259, at para. 59. Nothing in the
    material before us comes close to rebutting the presumption of impartiality.

[13]

For these reasons, the appeal is dismissed with costs payable by the
    appellant Fancy to the respondent Morse fixed in the amount of $14,000
    inclusive of disbursements and HST.

M.L. Benotto
    J.A.

David Brown J.A.

B.W. Miller J.A.


