



COURT OF APPEAL FOR ONTARIO

CITATION: Couper v. Rueter Scargall Bennett
    LLP, 2020 ONCA 352

DATE: 20200605

DOCKET: C67613

Gillese, Tulloch and Jamal JJ.A.

BETWEEN

Mark Couper

Applicant (Appellant)

and

Rueter Scargall Bennett LLP

Respondent (Respondent)

AND BETWEEN

Rueters LLP

Applicant

(Respondent)

and

Mark Couper

Respondent

(Appellant)

Mark Couper, acting in person

Fraser Dickson, for the
    respondents

Heard: In Writing

On appeal from the judgment of Justice
    Markus Koehnen of the Superior Court of Justice, dated November 12, 2019.

REASONS FOR DECISION

[1]

In this appeal, Mark Couper seeks to overturn a
    judgment ordering him to pay Rueters LLP approximately $422,000 for legal fees
    and disbursements, pre-judgment interest, and costs.

[2]

For the reasons that follow, the appeal is
    dismissed.

Background in Brief

[3]

In January 2011, Mr. Couper retained Rueter
    Scargall Bennett LLP, predecessor in interest to Reuters LLP (collectively
    Rueters), to represent him in a cross-border breach of contract case. Rueters
    was Mr. Coupers third law firm to handle the litigation.

[4]

Rueters provided Mr. Couper with legal services
    until March 2013. During that period, Rueters significantly advanced the case.
    Among other things, it readied the matter for pre-trial and trial, amended the
    pleadings, obtained additional disclosure, conducted examinations for
    discovery, attended several pre-trial and case conferences, and defeated a
    motion for summary judgment.

[5]

However, in March 2013, Rueters terminated the
    lawyer-client relationship because Mr. Couper refused to follow its legal advice
    on important issues. The culminating incident occurred when Mr. Couper
    instructed Rueters to bring a summary judgment motion based on advice he had received
    from other lawyers and contrary to Reuters advice. Rueters refused to bring
    the summary judgment motion, which it viewed as unwise. Mr. Couper accepted the
    termination of the relationship and voluntarily retained new counsel to replace
    Rueters.

[6]

At the time of termination, Mr. Couper had paid
    only $10,000 of the fees of $333,951.50 (plus HST) which he owed Rueters. He
    also owed Rueters overdue disbursements of $2,703.12.

[7]

On April 16, 2013, the parties entered into a
    compromise compensation agreement (CCA) which resulted in a substantial fee
    reduction for Mr. Couper.  The CCA reduced Rueters fees to $300,000 (before
    HST); it also reduced the original premium of 5% of the judgment obtained to
    1%. Both sums were payable on judgment or settlement. The CCA further provided
    that Mr. Couper would pay the outstanding disbursements within three months. He
    did not make that payment.

[8]

In April 2016, Mr. Couper succeeded at trial and
    obtained a judgment of almost $700,000. In July 2016, he was awarded costs of
    the trial of approximately $780,000.

[9]

In August 2017, Rueters issued an account in
    accordance with the CCA. The account included the still-unpaid disbursements.

[10]

Mr. Couper sought to have the account assessed
    but the Assessment Officer ruled he was without jurisdiction. Both parties then
    brought applications to determine appropriate fees for Rueters.

[11]

The applications judge found in favour of
    Rueters on both applications. By judgment dated November 12, 2019, Mr. Couper
    was ordered to pay Rueters $351, 402.75 plus prejudgment interest of $13,893.09
    and costs of $57,548.46 (the Judgment).

[12]

Mr. Couper appeals the Judgment on three grounds.
    First, he submits that there was a reasonable apprehension of bias on the part
    of the applications judge. This submission is largely based on the applications
    judge having presided over Mr. Coupers motion opposing the confirmation of an
    assessment award regarding the fees of his trial counsel. Second, he submits that
    the applications judge erred in finding that Rueters had good reason to
    withdraw from its representation of him and did not require court approval for
    its withdrawal. Third, he submits that the applications judge erred in
    enforcing the CCA, which he contends is invalid.

No Reasonable Apprehension of Bias

[13]

There is no conduct of the applications judge
    that can be seen as evidence of prejudgment or bias on his part. On the
    contrary, the record shows that the applications judge acted fairly, and with patience
    and integrity, throughout these proceedings.

[14]

Further, the fact that the applications judge
    ruled against Mr. Couper in a related matter is inadequate to establish a
    reasonable apprehension of bias:
Watt v. Beallor Beallor Burns Inc.
,
    2004 CanLII 19821 (Ont. C.A.), at paras. 13-14.

Rueters had Good Reason to Withdraw and Court
    Approval was not Required

[15]

Mr. Couper asserts that the applications judge erred
    in determining that Rueters had good reason to withdraw from the solicitor-client
    relationship because the litigation was at a critical stage, he was prejudiced
    by its withdrawal, and court approval was required.

[16]

We reject this assertion and all of the
    arguments in support of it.

[17]

Counsel cannot abandon their clients on the eve
    of trial or a similarly acute point in the litigation. However, when Rueters terminated
    the solicitor-client relationship, the litigation was not at a critical stage.
    There were no imminent court dates nor was there work that could not be dealt
    with efficiently by new counsel. In fact, Mr. Coupers new counsel was able to
    take the matter to trial quickly and was successful, obtaining judgment in his
    favour.

[18]

Nor was Mr. Couper prejudiced by Rueters
    withdrawal. In rejecting Mr. Coupers claim of prejudice flowing from that
    withdrawal, the applications judge found that Rueters had no liability for any
    costs arising from the withdrawal because Mr. Couper was the author of his own
    misfortune. He found that Mr. Couper was responsible for the material
    breakdown in the relationship for reasons that included his insistence that
    Rueters pursue the summary judgment motion, a motion that could have been
    strategically and financially disastrous for him. We agree with the
    applications judge.

[19]

As for Mr. Coupers contention that court approval
    was required, we begin by noting that Mr. Couper agreed that Rueters could
    remove itself from the record. Thus, in the circumstances of this case, there
    was no need for Rueters to obtain court approval.

[20]

In any event, we endorse the applications judges
    rejection of Mr. Coupers after-the-fact explanation for why his agreement was
    based on a misunderstanding. We also agree with the applications judge that had
    Rueters made such an application, it would have obtained court approval to
    remove itself from the record. As the applications judge found and is described
    briefly above, Mr. Couper was responsible for the material breakdown in the
    solicitor-client relationship.

[21]

We conclude on this issue by noting that the
    findings of the applications judge show that going to court for such approval
    would have been ill-advised and both parties knew that. It was clearly in Mr.
    Coupers best interests that the change in counsel be accomplished as quickly, inexpensively,
    discreetly, and efficiently as possible. That is precisely what transpired.

The CCA was Valid

[22]

On this appeal, Mr. Couper has advanced a new
    issue, namely, that both his initial retainer agreement with Rueters and the
    CCA are invalid because they fail to comply with the requirements of
Contingency
    Fee Agreements
, O. Reg 195/04 to the
Solicitors Act
, R.S.O. 1990,
    c. S. 15 (the Regulation). He did not advance this issue on the Applications.
    Rather, he argued that Rueters had breached the agreements.

[23]

As Mr. Couper did not raise the validity of the
    agreements below, he cannot raise it on appeal. This court has repeatedly
    explained the general rule that appellate courts will not entertain entirely
    new issues on appeal. See, for example,
Kaiman v. Graham
,
2009
    ONCA 77, 245 O.A.C. 130, at para. 18, and
Chuang v. Toyota Canada Inc.
,
2016 ONCA 852
,
at para. 4.

[24]

In any event, even if the CCA were found not to
    comply with the Regulation, we agree with the applications judges implicit
    finding that the CCA was fair and reasonable. Therefore, it was enforceable.

Disposition

[25]

The appeal is dismissed with costs to Rueters. If
    the parties are unable to agree on the quantum of those costs, they may make
    written submissions on that matter, to a maximum of three pages in length, such
    submissions to be received by this court no later than ten days from the date
    of release of these reasons.

[26]

Further, this court affirms the applications
    judges order that Mr. Coupers New Jersey counsel, Snellings Law, shall pay to
    Rueters forthwith, from the funds that it is holding in escrow, all amounts to
    which Rueters is entitled pursuant to the Judgment.

E.E.
    Gillese J.A.

M.
    Tulloch J.A.

M.
    Jamal J.A.


