



COURT OF APPEAL FOR ONTARIO

CITATION: Doe v. MacDonald, 2016 ONCA 319

DATE: 20160429

DOCKET: C60991

Doherty, MacPherson and Miller JJ.A.

BETWEEN

John Doe

Applicant (Respondent)

and

Andrew J. MacDonald and The Barristers Group

Respondents (Appellants)

Andrew J. MacDonald, for the appellants

Greg Frenette and Jessica Lam, for the respondent

Heard: April 27, 2016

On appeal from the judgment of Justice Mario D. Faieta of
    the Superior Court of Justice, dated August 10, 2015.

ENDORSEMENT

[1]

This dispute over a lawyers retainer is an unfortunate ending to what
    was, up to that point, a tremendous success story: a lawyer providing excellent
    service to a client of limited means and difficult expectations, and achieving an
    extraordinary result. The appellants represented the respondent in an action
    against the respondents veterinarian, arising out of the death of the
    respondents service dog while under the veterinarians care. The appeal is
    from a judgment finding that the appellants services were rendered on a
pro
    bono
basis, and ordering the appellants to repay funds from the respondent
    that were improperly applied to legal fees instead of disbursements. This
    appeal turns mainly on the terms of the respondents retainer with the
    appellants.

[2]

For the reasons that follow, we would dismiss the appeal.

[3]

After the settlement of the respondents action, the appellants rendered
    their account to the respondent, who had understood that the appellants were
    acting
pro bono
. The respondent objected to the account and brought it
    for assessment before an Assessment Officer. The Assessment Officer adjourned
    the proceeding
sine die
, on the basis that the retainer itself was
    disputed, and not simply the reasonableness of the account. The respondent then
    brought an application in the Superior Court seeking a declaration that the
    appellants had agreed to act
pro bono
, without charging legal fees.

[4]

The appellants appeal on four grounds: (1) the order for assessment
    initiated by the respondent is an impediment to the application; (2) the
    application judge erred in allowing the proceeding to be brought by way of
    application or in not ordering a trial of an issue; (3) the application judge erred
    in law in defining the scope of a
pro bono
retainer, and (4) the
    application judges conduct raised a reasonable apprehension of bias.

[5]

We would not give effect to any of these submissions.

[6]

First, it was not necessary for the respondent to move to set aside the
    assessment order before proceeding in the Superior Court. The assessment was
    adjourned by the Assessment Officer precisely to enable the respondent to bring
    the matter for adjudication in the Superior Court, which is the appropriate
    venue where the nature of a retainer is in dispute. The fact that the
    respondent initially proceeded by mistake in the wrong forum does not
    constitute an admission that the retainer was not in dispute. Neither is taking
    a corrective measure to bring the matter to the appropriate forum tantamount
    to an abuse of process as the appellants submit.

[7]

Second, it was appropriate to proceed by way of application in this
    matter. There were no factual issues essential to evaluating the claim that could
    not be determined through the evidence provided. In fact, the reasons of the
    application judge were largely supported by the evidence of the appellant, Mr.
    MacDonald.

[8]

Significantly, the appellants did not at any time object to the matter
    proceeding by way of application. They filed affidavits and cross-examined on
    the respondents affidavit. Although Mr. MacDonald, towards the end of his
    submissions at the hearing of the application, floated the idea of a trial of
    an issue to determine the nature of the retainer, neither side pressed for a
    trial of an issue.

[9]

Third, the application judge made no error of law with respect to the
    issue of whether the appellants agreed to act for the respondent on a
pro
    bono
basis. The issue was not, as the appellants would have it, that the
    application judge erred by holding that
pro bono
counsel may never
    receive fees. The application judge made no such error. The issue, rather, is a
    factual one: did the appellants make fee arrangements with the respondent that
    required the respondent to pay legal fees? The application judge found that
    they did not. This finding was amply supported by the record, is entitled to
    deference, and we would not interfere with it. As the application judge stated,
    where there is doubt or ambiguity about the terms of the retainer, the doubt or
    ambiguity is to be resolved in favour of the client. The appellants had eight
    years in which to confirm in writing their understanding of the retainer, and
    failed to do so.

[10]

Fourth,
    a review of the transcript does not provide support to the appellants argument
    that the conduct of the application judge raised a reasonable apprehension of
    bias against the appellants. The application judge was incorrect to require Mr.
    MacDonald to gown when he was appearing as a self-represented litigant rather
    than as counsel, but it is far-fetched to suggest that this interaction somehow
    tainted the rest of the hearing. We would not give effect to this submission.

Disposition:

[11]

The
    appeal is dismissed. Costs are payable by the appellants to the respondent in
    the amount of $5,580.00, including disbursements and HST.

Doherty J.A.

J.C. MacPherson J.A.

B.W. Miller J.A.


