



COURT OF APPEAL FOR BRITISH
COLUMBIA




Citation:



Slater Vecchio LLP v. Cashman,









2014 BCCA 6




Date: 20140108

Docket:
CA040637

Between:

Slater Vecchio LLP

Appellant

(Solicitor)

And

Fred Cashman

Respondent

(Client)

Corrected
Judgment
: The text of the judgment was corrected at
paragraph [49] in the last section of quotation: a duplicated sentence
was removed on January 14, 2014.




Before:



The Honourable Mr. Justice Chiasson

The Honourable Mr. Justice Tysoe

The Honourable Mr. Justice Goepel




On appeal from:  An
order of the Supreme Court of British Columbia, dated
January 31, 2013 (
Slater Vecchio LLP v. Cashman
, 2013 BCSC 134,
Vancouver Docket S110853).




Counsel for the Appellant:



D.G. Cowper, Q.C.
A.I. Nathanson





Counsel for the Respondent:



G.T. Palm
D.A. Hunter





Place and Date of Hearing:



Vancouver, British
  Columbia

November 28, 2013





Place and Date of Judgment:



Vancouver, British
  Columbia

January 8, 2014





Written Reasons by:





The Honourable Mr. Justice Chiasson





Concurred in by:





The Honourable Mr. Justice Tysoe

The Honourable Mr. Justice Goepel








Summary:

The appellant law firm
appeals the decision of a Supreme Court judge dismissing its appeal from a
masters order requiring the appellant to return a fee paid to it at the
conclusion of a tort action on the basis that the retainer agreement between
the appellant and the respondent was an entire contract, pursuant to which
the appellant was obliged to conclude both the tort action and the respondents
claim for benefits under Part 7 of the Regulations to the Insurance
(Vehicle) Act.  At the conclusion of the tort action, the parties and lawyers
who previously had acted for the respondent, negotiated a settlement agreement
for fees payable in relation to the tort action.  The appellant contends that
the settlement agreement amended or supplanted the retainer agreement, that the
retainer agreement was not an entire contract and that respondent is estopped
from claiming the return of the fee paid under the settlement agreement.  Held:
appeal allowed.  The settlement agreement amended or supplanted the retainer
agreement.  It is questionable whether the retainer agreement was an entire
contract.  The estoppel issue is not addressed.

Reasons
for Judgment of the Honourable Mr. Justice Chiasson:

Introduction

[1]

This is an appeal from the decision of a Supreme Court judge dismissing
an appeal from a masters order requiring the appellant to return a fee paid to
it at the conclusion of a tort action on the basis that the retainer agreement
between the appellant and the respondent was an entire contract, pursuant to
which the appellant was obliged to conclude both the tort action and the
respondents claim for benefits under Part 7 of the Regulations to the
Insurance
(Vehicle) Act
, B.C. Reg. 447/83 (the Part 7 action).

Background

[2]

The respondent was injured seriously in a collision between a motor
vehicle and the bicycle he was riding.  He sued the driver and owner of the
motor vehicle who was represented by the Insurance Corporation of British
Columbia (ICBC) in a tort action and he sued ICBC for benefits in the Part 7
action.  Initially, the respondent, who is a lawyer, represented himself, but
eventually he retained the firm of Brown Benson to act for him.  He became
unhappy with that firm and retained the appellant firm.

[3]

Prior to retaining the appellant, a substantial amount of work had been
done on the tort action, including setting a trial date.  Little had been done
on the Part 7 action.  At the time of the transfer, the respondent was
seeking the policy limits of $1 million in the tort action; the highest
offer from the defendants was $400,000.

[4]

Brown Bensons files for both actions were sent to the appellant and
Notices of Change of Solicitor were filed.  The appellant agreed to protect the
fees and disbursements of Brown Benson.

[5]

On January 13, 2009, the parties entered into a retainer agreement.  It
stated:

I, Frederick George Cashman, authorize the law
firm of Slater Vecchio LLP to act as my solicitors with respect to my claim for
damages incurred as a result of personal injuries and other losses arising out
of a motor vehicle accident on July 26, 2005.

I agree to pay to
the law firm of Slater Vecchio LLP the following:

(a)        legal
fees of 33-1/3 % of the amount recovered by settlement or at trial;

(b)        all
disbursements incurred in prosecuting my case. I also agree to pay interest on
all disbursements paid on my behalf by Slater Vecchio LLP at the rate of 10
percent per annum;

(c)        the
Social Services Tax and Goods and Services Tax applicable to the fee.

I confirm that I
have been advised of the following:

A.         This
Agreement may be terminated within 90 days from the date of the Agreement or
within 90 days of the termination of the retainer with Slater Vecchio LLP by
application to the District Registrar of the Supreme Court of British Columbia
to have the Agreement reviewed, notwithstanding that payment has been made to
Slater Vecchio LLP under the Agreement;

B.         The
Rules of the Law Society of British Columbia provide that, subject to the
Supreme Court approving higher remuneration, the maximum compensation to which
a lawyer is entitled in a claim for personal injury arising out of the use or
operation of a motor vehicle is 33-1/3% of the total amount recovered.

C.        This
percentage limit applies to all matters related to the trial of a lawsuit, but
does not include any appeal. A lawyer and a client may make a separate
agreement for legal fees for an appeal.

D.        Fees charged by different
lawyers vary.

[6]

It is common ground that the retainer agreement covered both actions.  The
appellant advised the respondent that, but for the need to protect the fees of
Brown Benson, the percentage payable under the agreement would have been
somewhat less.

[7]

In June 2010, the appellant obtained settlement of the tort action for
the policy limits of $1 million.  The Part 7 action was not part of
the settlement.

[8]

The fees related to the tort action totaled $333,333.  The appellant proposed
a split of 60/40 in favour of the appellant to Brown Benson.

[9]

Difficulties arose concerning the fees payable to Brown Benson.  The
respondent questioned the firms entitlement to fees.  He retained Mr. Gordon
Turriff, Q.C., to represent him with respect to Brown Bensons claim for fees. 
Mr. Turriff did not act for the respondent with respect to the appellants
fee.  The respondent advised that he was prepared to pay a global fee of
$250,000.  He wanted to tax the account of Brown Benson.

[10]

After negotiations, on November 10, 2010 it was agreed by Brown
Benson, the appellant and the respondent that Brown Benson would receive
$71,800 and the appellant $180,000, plus taxes.  This arrangement is called the
settlement agreement.

[11]

In January 2011, the respondent left a telephone message with the
appellant inquiring about the status of the Part 7 action.  On January 19,
2011, the appellant advised the respondent that no steps had been taken in the
Part 7 action and that, having reviewed the action, the appellant was not
prepared to act further for you on it.  The respondent replied on January 20,
2011, stating:

Gentlemen:  That is not how I
read the contract.  It does not say that you only get to do what you deem to be
the easy stuff, but that you will act with respect to my claim for damages
incurred as a result of personal injuries and other losses arising out of a
motor   In short it is not proper that you cherry pick the claim and when the
easy part is done then decide to give up on the claim without a fight.  I object
to your withdrawal and do not consent to this breach of contract.  I did not
say that I was not advancing a claim for Part 7 nor did I refuse to
cooperate with ICBC.  They offered help with rehab which I did not need as I
was getting lots of help.  They never asked for any cooperation nor did they
complain that I was not cooperating.  The fee agreement was to do everything
and not just that which you believed was worth pursuing.  The contract is Whole
contract and has yet to be completed.

[12]

The appellant responded that day as follows:

Fred,

With respect, we disagree.  We are under no compulsion to
continue to act.  Any party can terminate the contract and we are doing so at
this time.

Our withdrawal at this time causes no harm or prejudice to
you.  There are no pending trial or discovery dates.

We have received no compensation and seek no compensation for
legal work on the Part 7 claim.

If you believe that you have a
good claim against ICBC under Part 7, you will have no difficulty
obtaining counsel to pursue it on your behalf.

[13]

The respondent did not accept this position.  On February 1, 2011,
his counsel wrote to the appellant advising that the respondent considered that
the appellant had repudiated the retainer agreement, that the respondent
accepted that repudiation and demanded repayment of $201,600, the total of fees
and taxes paid previously to the appellant.  On February 9, 2011, the
respondent brought proceedings for a review of the appellants account.  The
appellant agreed it did not have cause to terminate the retainer agreement.

The masters decision

[14]

The following issues were considered in the proceeding before a master
of the court and noted by the judge on appeal:

Issue 1:     Was the retainer agreement between the
Solicitors and the Client (the Agreement) an entire contract by which the
solicitors were obligated to prosecute both the Clients tort action and his
Part 7 action to their respective conclusions in order to be entitled to
any fee?

Issue 2:     If so, then did the Solicitors and the Client, in
or about early November of 2010, either

(a)        make a new agreement and
discharge the Agreement; or

(b)        amend the Agreement;

such that the Solicitors were no longer required to prosecute
both the Clients tort action and his Part 7 action to their respective
conclusions in order to be entitled to any fee?

Issue 3:     If not, then by virtue of dealings in or about
early November 2010 is the Client estopped from recovering the fee paid to the
Solicitors?

Issue 4:     If not, then did
the Solicitors breach the Agreement by withdrawing their services without cause
prior to prosecuting the Clients Part 7 action to its conclusion such
that the Solicitors are not entitled to any fee?

The master found against the appellant on each of these
issues.  He certified that $220,613.33 was due from the appellant to the
respondent.

The chambers decision

[15]

Although the appellants first ground of appeal before the judge was the
effect of the settlement agreement, the judge first addressed whether the
retainer agreement was a single contract.  In her view, it was.  She concluded
that the legal effect of the agreement was that the appellant:

undertook an entire obligation
to [the respondent]  to represent him in relation to his
claim
 and
had no entitlement to the fee payable under the Agreement until [it] had
performed [its] part, all of it. [Emphasis in original.]

[16]

The judge reviewed the applicable law and the conclusions of the master
and stated at paras. 51-52:

[51]      Of course, Slater Vecchio was in fact going to be
acting as Mr. Cashmans solicitors in two separate actions.  But this does
not answer the question concerning the proper legal effect to be given to the
Retainer Agreement.  No doubt the Retainer Agreement
could
have been
drafted to express the objective intention that Slater Vecchios obligations to
act for Mr. Cashman in respect of the Tort Action and the Part 7
Action were separate and divisible and that the firm was entitled absolutely to
be paid its fee in respect of one Action once that Action was concluded,
whatever the status of the other.  That, essentially, is the legal effect Mr. Nathanson
argues should be given to the Retainer Agreement, despite the use of the word
claim and other singular nouns in the document.

[52]      But is that the
legal effect of what the parties actually said in the Retainer Agreement?  This
is a question of law.  In my opinion, applying the legal principles I have
summarized above, it is not.  In my view, based on the Masters findings
concerning the meaning of the words in the Retainer Agreement and the factual
matrix, the legal effect of the Retainer Agreement is that Slater Vecchio
undertook an entire obligation to Mr. Cashman  to represent him in relation to
his
claim
 and had no entitlement to the fee payable under the
Agreement until they had performed their part, all of it.  In my opinion, this
is the objective intention expressed by the words the parties used in the
Retainer Agreement.

[Emphasis in original.]

[17]

Turning to the settlement agreement, the judge addressed the position of
the appellant.

[55]      In the Reasons, the
Master said in respect of Issue 2, at para. 71:

[N]either of the parties turned
their minds to whether or not they were about to either make a new Agreement or
amend the [Retainer] Agreement. Accordingly, in the absence of some evidence of
actual intent to alter or amend the [Retainer] Agreement rather than by
implication, I find neither occurred.

[56]      Mr. Nathanson submits that the Settlement Agreement
is a contract in its own right and must be given effect, even if it departed
from the terms of the Retainer Agreement.  In Mr. Nathansons submission
the Settlement Agreement, by its own undisputed terms,
did
amend the
Agreement.  He says that the Master found (in para. 42 of the Reasons)
that it was an agreement by Cashman to pay  $180,000 plus taxes to Slater
Vecchio
in settlement of Slater Vecchios entitlement to a fee for the tort
action
 [emphasis added by Mr. Nathanson], instead of the 33 1/3% of
the amount recovered, as provided for in the Retainer Agreement.  Mr. Nathanson
argues that the Masters references to the parties actual intent and
turn[ing] their minds to the effect of the Settlement Agreement can only
refer to evidence of the parties subjective intentions.  Mr. Nathanson
says that the Master erred by focussing on what he perceived to be the parties
subjective intentions, instead of having regard to the terms of the Settlement
Agreement itself.

[57]      However, I do not read para. 71 of the Reasons
in the same way as Mr. Nathanson.

[58]      The question concerning the Settlement Agreement is
the same as with any other contract:  at the time the Agreement was made, what
were the parties true intentions, considered objectively.  Therefore, I read
the adjective actual in para. 71 as synonymous with true, thus showing
that the Master was concerned to determine what, objectively, were the parties
true intentions at the time the Settlement Agreement was made.  I do not read
para. 71 as indicating that the Master either focussed on, or required,
evidence of either partys subjective intent, which is inadmissible.

[59]      Moreover, in my
opinion, the Masters statements in para. 71 constitute a finding that the
terms of the Settlement Agreement did not include a term whereby the Retainer
Agreement was either altered or amended.  It was for the Master to make
findings concerning the terms of the Settlement Agreement, and his findings are
entitled to deference on appeal.  The Master did not fail to give effect to the
Settlement Agreement.  Rather, he gave effect to the Settlement Agreement based
on his findings concerning the terms, and with the goal of determining what,
objectively, were the parties true intentions at the time the Agreement was
made.

[Emphasis in original.]

[18]

The appellant contended the masters decision was inconsistent because
he stated at para. 42 of his reasons that $180,000 plus taxes was paid to
the appellant in settlement of [its] entitlement to a fee for the tort action. 
The judge rejected this contention, stating at para. 61:

The parties themselves did not
use the word entitlement.  The Masters use of the word entitlement in
para. 42 of the Reasons has to be understood in its proper context.  The
Master described the fee dispute as one between Brown Benson and Slater
Vecchio as to what their respective fees would be.  The Master found (Reasons,
para. 4) that the fee dispute was finally settled when Slater Vecchio agreed
to take $20,000.00 less than Mr. Cashman had suggested, and the
agreement was to be final in that Mr. Cashman would not tax the accounts
of Brown Benson.  In that context, the Masters use of the word entitlement
in para. 42 is not inconsistent with his finding that the Settlement
Agreement did not alter or amend the Retainer Agreement, or with his conclusion
that the Retainer Agreement described an entire obligation.

The judge
continued at paras. 62 and 63:

The primary aim of the transaction that resulted in the
Settlement Agreement  was to settle Mr. Cashmans dispute with Mr. Deering
concerning the fee to be paid to Brown Benson.  This is highlighted by Mr. Turriffs
November 4 message to Mr. Gordon and Mr. Deering.  Since Mr. Cashman
had terminated Mr. Deerings retainer, there were no issues concerning
entire or divisible obligations in relation to Brown Benson.  Even if
(hypothetically) Slater Vecchio had the ability at the conclusion of the Tort
Action to bill 33 1/3% of the recovery to Mr. Cashman, it did Slater
Vecchio little good, for the reasons Mr. Turriff described.

The Settlement Agreement settled,
finally, the dispute between Mr. Cashman and Mr. Deering concerning the
fee to be paid to Brown Benson.  It also settled, finally, the allocation
between Brown Benson and Slater Vecchio.  To put it another way, it settled
Brown Bensons and Slater Vecchios respective entitlements, as between one
another.

[19]

The judge considered the dealings between the appellant and the
respondent as part of the factual matrix of the settlement agreement.  She
concluded this did not assist the appellant.

[20]

The judge then turned to the appellants assertion that the respondent
is estopped from recovering the fee paid to the appellant.  In her view, it was
more likely that estoppel would apply against the appellant than the respondent
because the appellant had a duty to advise the respondent on the effect of the
settlement agreement if that agreement is interpreted to deprive the respondent
of his rights under the retainer agreement.

[21]

The appeal from the master was dismissed.

Positions of the
parties

[22]

The appellant contends that the judge erred in law in failing to give
effect to the settlement agreement and in concluding that the retainer
agreement was an entire contract.  It also asserts that the judge erred in law
and in principle in concluding that the respondent was not estopped from
recovering the fee paid to the appellant.

[23]

The respondent states that the issue is whether the judge erred by not
interfering with the conclusions of the master.  He supports the judges
analytical approach of dealing first with the retainer agreement as providing
the necessary context to consider the effect of the settlement agreement.

Discussion

[24]

As noted, the judge first considered (at para. 39) whether the
retainer agreement was an entire contract.  In her view, it provided:

the necessary context in which
to consider what effect should be given to the Settlement Agreement, and
whether the Master made any reversible error in that respect.

[25]

Although I see some danger of conflating the consideration of each
agreement, in the circumstances of this case logically, the judges approach
was sensible because if the retainer agreement was not an entire agreement,
there would be no need to construe the settlement agreement.  Having concluded
that the retainer agreement was an entire contract, the foundation for
considering the effect of the settlement agreement was laid.

[26]

I intend to consider the settlement agreement first.  For this analysis,
I shall assume that the retainer agreement was an entire contract as found by
the judge.

Settlement agreement

[27]

The issue is whether the retainer agreement is amended or supplanted by
the settlement agreement.  That is, as the appellant frames the question, was
the settlement agreement inconsistent with the obligation of the appellant to
complete both actions before it had a right to the payment of its fee for the
tort action?

[28]

Three issues arise: whether the judge erred in concluding that:

1.       the master did
not err by focusing on the subjective intention of the parties;

2.       the masters
reasons are not inconsistent;

3.       there
was no dispute between the appellant and the respondent; the settlement
agreement only resolved the dispute between the respondent and Brown Benson.

These issues are interrelated.

[29]

In para. 42 of his reasons, the master stated:

On November 10, 2010, Slater
Vecchio, Brown Benson and Mr. Cashman, through his counsel, Mr. Turriff,
reached an agreement to resolve the Fee dispute (the Settlement Agreement).
The Settlement Agreement provided that Cashman agreed to pay $71,800 plus taxes
to Brown Benson in settlement of Brown Bensons entitlement to a fee and a
further $180,000 plus taxes to Slater Vecchio in settlement of Slater Vecchios
entitlement to a fee for the tort action. Turriff confirmed this in an e-mail
of the same date.

[30]

As I read her reasons, the judge accepted this paragraph as articulating
the settlement that was reached, although she declined to read the statement
as a finding by the Master that a fee dispute existed between [the respondent]
and [the appellant] (at para. 24).

[31]

In para. 71 of his reasons, the master stated:

As well, in my view, neither of
the parties turned their minds to whether or not they were about to either make
a new Agreement or amend the Agreement. Accordingly, in the absence of some
evidence of actual intent to alter or amend the Agreement rather than by implication,
I find neither occurred.

[32]

The first two issues noted above arise out of the judges consideration
of paras. 42 and 71 of the masters reasons.  The judge concluded that the
masters comments that the parties did not turn their minds to whether they
were making a new agreement or amending the retainer agreement and that there
was no evidence of actual intent was synonymous with true intentions,
considered objectively (at para. 58).  She stated that the parties did
not use the word entitlement, which the master used in para. 42, and
that his conclusion in para. 71 that the settlement agreement did not
alter or amend the retainer agreement was not inconsistent with his use of the
word entitlement because the dispute was between the respondent and Brown
Benson and not between the respondent and the appellant (at para. 61).

[33]

As noted previously, the judge stated at para. 62:

The primary aim of the
transaction that resulted in the Settlement Agreement was to settle [the
respondents] dispute  concerning the fees to be paid to Brown Benson.

I consider this comment to be pivotal to the judges
conclusion that the master did not err.  In my view, the comment understates
what occurred.  I begin with some preliminary observations.

[34]

In my view, the masters comments in para. 71 do suggest that he
focused on the subjective intent of the parties, but the more important issue
is the need to examine the effect of the settlement agreement, if any, on the
retainer agreement.

[35]

The respondent asserts that the question is whether the settlement
agreement relieved the appellant from completing the Part 7 action, but
that is not the appellants position and it is not the issue.  The question is,
assuming that the retainer agreement was an entire contract, is the settlement
agreement consistent with the implied term in the retainer agreement that the
appellant was not entitled to payment of its fee for the tort action until the
Part 7 action was complete?  To answer that question, it is necessary to
look at the factual matrix of the settlement agreement and the words used by
the parties.

[36]

Shortly after the tort action was settled, the appellant and Brown
Benson had communications concerning the split of fees between the two firms.

[37]

On September 2, 2010, the appellant advised the respondent:

We confirm [your] advice to us
that you wish to challenge Brown Bensons entitlement to its share of the fee. 
We are not part of that dispute.  We propose that you, Slater Vecchio and
Mr. Deering reach an agreement on the appropriate portion of the $330,000
fee that will be paid to Slater Vecchio so that we can render and pay our fee
account.  The balance of the funds can be held in trust until the fee dispute
between you and Mr. Deering/Brown Benson is resolved.

[38]

The respondent agreed with a 60/40 split in favour of the appellant.  He
intended to reserve his right to tax the account of Brown Benson.  The
appellant advised Brown Benson of this and asked the firm to agree to a 60/40
split so we can render and pay our account.  As requested by the respondent, Mr. Turriff
was copied with the appellants letter.

[39]

On September 27, 2010, Mr. Turriff wrote to Brown Benson and sent a
copy to the appellant.  Mr. Turriff urged the resolution of the split
between the two firms stating that [u]ntil the division is decided (or, I
suppose otherwise determined), neither of you can bill [the respondent].

[40]

On November 4, 2010, Mr. Turriff wrote to both the appellant and Mr. Deering,
who was the lawyer, formerly at Brown Benson, who had acted for the respondent.
 He urged agreement on the split between the firms as a starting point because
[u]nless the split is agreed, neither [firm] can know what to bill [the
respondent].  He continued:

I suppose that [the appellant]
could bill [the respondent] the whole contingency fee but if it did it couldnt
safely pay itself until it knew what fee [the respondent] would owe [Brown
Benson].

[41]

Mr. Turriff left a message with the appellant stating that he
misunderstood the respondents instructions and that the respondent wanted the
fee reduced from $333,333 to $250,000 with $50,000 going to Brown Benson and
$200,000 to the appellant.  This was followed by an e-mail from Mr. Turriff
to the appellant on November 8, 2010 in which he assured the firm that the
respondent wants you to receive your proper entitlement as soon as possible.

[42]

As noted, on November 10, 2010, Mr. Turriff wrote confirming a
settlement.  He stated:

I confirm that [Brown Benson]
offered to accept a fee of $71,800.00 and that [the respondent] has accepted
that offer and that [the respondent] and [the appellant] have agreed that [the
appellants] fee will be $180,000.00. HST on top.

In another communication that day, Mr. Turriff advised
the appellant that [y]our entitlement is $180,000.00 plus HST of $21,600.00.

[43]

On November 12, 2010, the appellant sent $90,747.08 representing payment
of the balance of settlement proceeds to the respondent together with its
account in accordance with the settlement agreement.  The account describes the
fee as [p]ayable to [the appellant].  These circumstances are consistent with
the masters finding in para. 42 of his reasons and with his use of the
word entitlement in that paragraph.

[44]

The judge erred stating that [t]he parties themselves did not use the
word entitlement (at para. 61).  Clearly, Mr. Turriff did so, as
did the respondent.  He stated in cross-examination at the hearing before the
master:

Q          What you had instructed Mr. Turriff to
propose was 200,000 to Slater Vecchio and 50,000 to Brown Benson.

A          Yeah, I think thats right.  Yes.

Q         And implicit in that was that would be a final
deal, with no review of Brown Bensons fee.

A          Absolutely.

Q         And you proposed that on the basis that that
was in line with this discussion that you had with Mr. Slater in June,
2010.

A           I dont know if
I discussed or what I said to Mr. Slater in June, 2010, at that time.  It
was in line with my belief that Mike was entitled to 60 percent of the full
fee, which would be about 200 grand.

[45]

The respondent was well aware of the concept of entire contract.  He
referred to it when rejecting the appellants refusal to continue with the Part 7
action.  Under cross-examination he stated:

Q         And you argued cases that involved this entire
contract principle?

A          Yes.

Q         In fact you said to Mr. Palm in direct
that you discussed that concept with Mr. Turriff at times?

A          Certainly.

Q         And your view of the law was that it was
perhaps unnecessarily strict that lawyers would not be entitled to any fee if
they withdrew in breach of an entire contract.

A.         Yes.

Q         When you wrote the e-mail that Mr. Palm
showed you, the cherry-picking e-mail, you referred to this entire whole
contract principle; correct?

A          I did.

Q         You didnt need to do any research before
writing that e-mail.

A          No.

Q         Because you were aware of the general nature
of this legal principle.

A          I had been for
years, yes.

In the communications leading to the settlement agreement,
there was no suggestion that the appellant was not entitled at that time to
payment of its fee for the tort action.  In my view, it is clear on the
evidence that the parties proceeded on the basis it was so entitled.

[46]

While there may not have been a dispute between the appellant and the
respondent, it was in the individual best interests of the parties to resolve the
tort fee issue.  Brown Benson wanted to be paid and wanted to avoid a further
battle with the respondent at a taxation of its account.  It compromised its
entitlement.  The appellant wanted to be paid and could not be paid until the
issue between the respondent and Brown Benson was resolved.  It compromised its
entitlement even to the extent of accepting less than the $200,000 proposed by
the respondent.  The respondent wanted the balance of settlement money because
he was leaving for Europe.  Although he wanted Brown Benson to get nothing, he
agreed to a reduced fee payable to Brown Benson and gave up his right to tax
the firms account.

[47]

In my view, it is clear that objectively the agreement was as stated by
the master in para. 42 of his reasons.  It was an agreement to resolve the
fee dispute; to have the two law firms paid on a basis acceptable to the
respondent.  Whether the parties turned their minds to the effect of the
agreement on the retainer agreement does not alter the fact that they agreed on
a compromised payment of fees for the tort action.  That agreement was not
consistent with any implied term in the contingency agreement that the
appellant was not entitled to a fee for the tort action until it completed the
Part 7 action.  There is nothing to that effect in the terms of the
settlement agreement or in the course of dealings between the parties that led
to it.

Entire agreement

[48]

Having concluded that the retainer agreement was amended or supplanted
by the settlement agreement, it is not necessary to determine whether the
retainer agreement was an entire contract.  That said, I think it remains an
open question as to whether the legal principles governing entire contracts
apply to retainer agreements which cover multiple proceedings which individually
can be concluded with the client succeeding or failing irrespective of the
actual or potential results of other proceedings.

[49]

The judge did not address the law dealing with entire contracts.  In its
factum, the appellant did so:

A contract or obligation is said to be entire when complete
performance is required before any duty to pay, usually a lump sum, arises.
Where there is only partial performance under an entire contract, the court
may not rewrite the parties bargain so as to provide for
pro rata
compensation. 
As learned authors explain, the term entire contract is itself misleading:
one contract may include several divisible obligations. Obligations are
divisible where different parts of the consideration can be assigned to
severable parts of the performance.

The entire obligation principle is illustrated by the
following classic examples.  If a shoemaker agrees to make a pair of shoes he
cannot deliver one to you and ask for half the price.  Similarly, if a man
engages to carry a box of cigars from London to Birmingham, it is an entire
contract, and he cannot throw the cigars out of the carriage half-way there,
and ask for half the money.

Whether an obligation is entire or divisible is a matter of
construction of the parties agreement in light of all of the circumstances. 
If an obligation is divisible or severable, there is an express or implied
agreement that payment will be made in proportion to the extent of
performance.

As a general matter, it is an
implied
term of a retainer agreement that the solicitor will bring the action to an
end, whether by settlement or judgment.  A retainer to prosecute an action is
considered an entire contract or entire obligation because the client gets
no benefit until a judgment or settlement has been obtained.  It follows that,
unless the client agrees otherwise
, the solicitor is not entitled to any
fee  until he or she has completed the work [emphasis added].  This implied
term can be ousted by agreement.

[Citations omitted.]

I agree with these comments.

[50]

It is apparent that the foundation of the entire contract concept in the
context of a retainer agreement is an implied term that the lawyer will be paid
only at the end of the retainer.  Where the retainer involves a number of
discrete proceedings, where there is a recovery in a proceeding the mischief addressed
by the entire contract principle, the risk that the client will obtain no
benefit from part performance of the retainer, does not apply.  There would
appear to be no principled reason why the lawyer is not entitled to his agreed
fee even in circumstances in which there may be additional work to be done on
other proceedings.

[51]

In the present case, the master and the judge focused on language in the
retainer agreement that was singular: claim, case, amount.  That language
supports the contention that the retainer agreement was a single contract, but,
in my view, arguably it was not.  Taking into account all of the circumstances,
the retainer agreement certainly could be construed as a contract embracing
discrete undertakings.  This is consistent with the substance of the agreement:
the prosecution of two separate, legally diverse actions that provided separate,
realizable benefits to the respondent.  In the case of the tort action, the
benefit was realized completely by the respondent.  Arguably, the surrounding
circumstances and the substance of the retainer agreement lead to a conclusion
different from the language of the document.  The issue illustrates the need
for greater care drafting retainer agreements.

Estoppel

[52]

It is not necessary to address the estoppel issue and I decline to do
so.

Conclusion

[53]

I would allow this appeal, set aside the order of the Supreme Court,
allow the appeal from the masters order and set aside the Certificate of Fees
entered July 18, 2012.

[54]

The appellant seeks an order requiring the master to issue a Certificate
of Fees in the amount of $251,800 (an amount that includes the Brown Benson
fee).  The fee that was assessed was the appellants fee, which was $201,600. 
It is that amount that was addressed in the Certificate of Fees.

[55]

I would order the Registrar to issue a Certificate of Fees in an amount
to be agreed by the parties or as directed by this Court if the parties are
unable to agree.

The Honourable Mr. Justice Chiasson

I agree:

The
Honourable Mr. Justice Tysoe

I agree:

The
Honourable Mr. Justice Goepel


