



COURT OF APPEAL
    FOR ONTARIO

CITATION: Clatney v. Quinn Thiele Mineault Grodzki LLP, 2016
    ONCA 377

DATE: 20160519

DOCKET: C60500

Cronk, Epstein and Huscroft JJ.A.

BETWEEN

Mark Clatney

Applicant (Appellant)

and

Quinn Thiele Mineault Grodzki LLP and Bertschi
    Orth Solictors and Barristers LLP

Respondents (Respondents)

Paul Auerbach, for the appellant

William R. Hunter, for the respondent Quinn Thiele
    Mineault Grodzki

Cheryl Letourneau, for the respondent Bertschi Orth
    Solicitors and Barristers

Heard: November 13, 2015

On appeal from the order of Justice Hugh R. McLean of the
    Superior Court of Justice, dated April 30, 2015.

Epstein J.A.:

OVERVIEW

[1]

At
    the heart of this appeal lies the importance of public confidence in the
    administration of justice and, in that context, the courts supervisory role
    over the appropriate compensation for legal services.

[2]

In
    March 2008, the appellant was seriously injured in a motor vehicle accident.
    The respondents are the law firms that represented him in his tort claim. This
    claim was settled in July 2013 for $800,000, an amount that included
Family
    Law Act
, R.S.O. 1990, c. F.3 (
FLA
) claims advanced by the
    appellants wife and two teenaged sons. Certain funds were distributed, as will
    be discussed in further detail below.

[3]

Under
    a court order dated August 21, 2013, the settlement monies that then remained, approximately
    $655,000, were held under a charging order pending resolution of the accounts
    of the respondent, Bertschi Orth Solicitors and Barristers LLP ("Bertschi Orth"),
[1]
for fees rendered and disbursements incurred in representing the appellant in
    the initial stages of his tort action. In November 2013, $70,000 of that
    $655,000 was paid into court on behalf of the appellants sons.

[4]

On
    December 3, 2013, an order was issued on consent (the Consent Order) that
    provided for the release of the remaining monies, approximately $585,000. The
    Consent Order specified payment to the respondents of amounts in full
    satisfaction of their fees and disbursements, with the remainder to the
    appellant. As a result of this order, the appellant realized a net amount of $274,142.47.
    The respondents received $310,000, in total.

[5]

O
n November 25, 2014, the appellant brought an
    application for an order r
eferring

the
    respondents accounts

to

assessment

pursuant

to

the

provisions

of

the

Solicitors Act
,

R.S.O.
    1990, c. S.15. The

application judge
    dismissed the application on

the

basis

that,
    in the light of the Consent Order, he

lacked

jurisdiction

to

hear

the

matter.

The appellant appeals.

[6]

For
    the reasons that follow, I am of the view that the application judge had
    jurisdiction to refer the respondents accounts to assessment and erred in law
    in holding otherwise. I would allow the appeal, set aside the Consent Order,
    and direct the respondents accounts to be assessed.

THE BACKGROUND FACTS

[7]

At
    the time of the accident, the appellant was 46. He was then living with his
    wife and two teenaged sons. Following the accident, the appellant lost his job,
    and he and his wife separated.

The initial retainer

[8]

In
    January 2009, the appellant retained Bertschi Orth to represent him in his tort
    and accident benefits claims.
[2]
The appellant entered into a contingency retainer agreement with Bertschi Orth
    that provided for payment of fees equal to 35% of damages recovered, plus
    disbursements incurred on his behalf, plus GST. The agreement contained a
    provision stating that, if the appellant terminated the retainer prior to the
    resolution of his claim, he would pay Bertschi Orth all fees, disbursements and
    charges for services rendered by it to the date of termination.

The change in solicitors and the settlement

[9]

In
    November 2012, the appellant terminated Bertschi Orth's retainer and hired the
    respondent, Quinn Thiele Mineault Grodzki LLP (Quinn Thiele). Jaimie Noel, a
    lawyer at Quinn Thiele who had been representing the appellants sons on their
FLA
claims, agreed to represent the appellant in his tort claim and to continue to
    represent his sons. She had previously worked at Bertschi Orth.

[10]

The appellant entered
    into a contingency fee agreement with Quinn Thiele that provided for payment of
    fees equal to 30% of damages recovered, plus disbursements incurred, plus HST.

[11]

No written undertaking
    was given by Quinn Thiele or by the appellant in relation to Bertschi Orth's fees
    and disbursements. Correspondence from Bertschi Orth indicates that it was
    prepared to negotiate the amount owing and recognized the potential need for a
    reduction on a pro rata basis depending upon the settlement amount, the amount
    recovered for fees, and the time [the] firms spent on the file. Ms. Noel informed
    Bertschi Orth that she did not have instructions from her client to agree to
    pay Bertschi Orths account or disbursements. Her evidence was that she advised
    the appellant that the fees to be charged by Quinn Thiele pursuant to their retainer
    agreement were separate from any fees owing to Bertschi Orth.

[12]

In

December

2012,

Bertschi

Orth

delivered

a

draft

account
to the appellant
setting

out
$106,000 in fees and over
$7,000

in

disbursements
.
The total balance due, including HST,
    was identified as $117,333.17.

[13]

Ms. Noel scheduled a
    mediation of the tort action for July 2, 2013. The mediation proceeded and the
    action was settled for $800,000  $625,000 to the appellant, $105,000 to his
    wife and $35,000 to each of the two children. Of the appellants $625,000,
    $20,000 had been received by him in advance and a further $20,000 was paid for
    costs of one of the co-defendants in the action.

[14]

Ms. Noel did not obtain
    written instructions from the appellant confirming his net recovery after payment
    of fees and disbursements to either of the respondent law firms. The
    appellant's contemporaneous notes suggest that he expected to receive a net
    amount of no less than $400,000 from the settlement.

The charging order

[15]

Later in July 2013,
    Bertschi Orth learned of the settlement and moved to obtain a charging order against
    the settlement funds.

[16]

On August 12, 2013,
    Smith J. of the Superior Court of Justice endorsed the record requesting a
    charging order, to the effect that "[n]one of the settlement funds" were
    to be disbursed until Bertschi Orth's account was assessed and the
    "respective share of fee[s] between Bertschi Orth and [Quinn Thiele had] been
    determined".

[17]

Quinn Thiele had prepared
    a response on the appellants behalf to Bertschi Orths motion for a charging
    order but the materials were not filed in time. The responding motion record was
    eventually filed and, on August 14, 2013, Smith J. further endorsed the record
    to the effect that all settlement funds were to be subject to a charging order
    until Bertschi Orths account was assessed.

[18]

By order dated August
    21, 2013, Smith J. revised the August 12 endorsement (as modified by the August
    14 endorsement) by providing that the settlement funds [would] be held in
    trust by [Quinn Thiele] but not distributed until such time as the completion
    of the assessment of the [Bertschi Orth] account; and distributed on consent or
    after a further order [was] obtained (the Charging Order).

Fee discussions and correspondence

[19]

Shortly after the date
    of the Charging Order, the parties started to address the amounts the appellant
    owed the respondents for their legal services.
[3]


[20]

On October 7, 2013,
    Bertschi Orth obtained an order from the Registrar for the assessment of its account.
    Later, the assessment hearing was set for January 21, 2014.

[21]

At this point in time,
    the appellant was experiencing mounting financial pressure, a situation he made
    clear to Quinn Thiele on several occasions.

[22]

The first indication
    that the appellant communicated his financial problems to Quinn Thiele appears
    in an October 9, 2013 email from the appellant to Ms. Noel. In that email, the
    appellant requested $34,000 to resolve debt issues and stated that he [would]
    need to claim bankruptcy. Ms. Noel responded the next day, stating that she
    would look into whether payment [could] be issued.

[23]

In a lengthy email
    sent on October 23, 2013, Mikolaj Grodzki, a partner at Quinn Thiele, advised the
    appellant that the firm could not represent him in any assessment of Bertschi Orth's
    account because Ms. Noel had formerly been an associate at Bertschi Orth. Mr.
    Grodzki relied on the alleged conflict to urge the appellant to settle Quinn Thieles
    account before dealing with Bertschi Orths account, so that the "obstacle"
    to negotiating Bertschi Orth's fees could be removed:

[Quinn Thieles] interest to protect our earned fees and to
    assert a claim for them conflicts with the need to represent your interests
    against [Bertschi Orth] at this time. Accordingly, we need to remove this
    obstacle and settle our account with you now. This will be an amount that you
    agree to pay regardless of the outcome of the assessment of the [Bertschi Orth]
    matter.... lf we can do this, then I can focus entirely on representing your interests
    against [Bertschi Orth] and not on protecting [Quinn Thieles] financial
    interests in the file.

[24]

Mr. Grodzki went on to
    advise the appellant that a resolution of Quinn Thieles account would assist him
    in the pending assessment of Bertschi Orth's account:

We

would

prefer

to
    reach

a

mutually

acceptable

amount

and consent

to

have

[Quinn
    Thieles] account assessed in that amount
.
This would

then

also

be

evidence

for

the

assessment

hearing

of

what

you
    are

paying

the

lawyers

who

did

the

work

and

settled

the

case.

This

is
    a

relevant factor in

assessing the
[Bertschi Orth]
law

account.

[25]

In this email, Mr.
    Grodzki also stressed that the "the assessment process itself [would] be
    lengthy" and that the legal costs associated with the assessment would be
    high.

[26]

On October 29, 2013,
    Quinn Thiele delivered a form of account to the appellant claiming fees,
    disbursements and HST totalling $305,159.14.
[4]
Accordingly, at that point in time, Quinn Thiele and Bertschi Orth were
    asserting claims of fees and disbursements in an aggregate amount in excess of
    $422,000  almost two-thirds of the $695,000 allocated to the appellant and his
    sons.

[27]

On November 4, 2013,
    Quinn Thiele offered to settle its account with the appellant for $215,000.

[28]

On November 5, 2013,
    the appellant delivered a Notice of Intention to Act in Person in the
    assessment of the Bertschi Orth account.

[29]

On November 13, 2013,
    the appellant again communicated his financial stress, this time to both firms.
    He wrote to several individuals at Quinn Thiele and Bertschi Orth, requesting
    $50,000 to prevent any further financial hardship, bankruptcy and [to] pay off
    several long overdue bills. He asked both firms to confirm their agreement,
    and requested that Quinn Thiele advise what paperwork was required at his end.

[30]

On November 14, 2013, Cheryl
    Letourneau, counsel at Bertschi Orth, responded on behalf of the firm indicating
    that it would consent to the release of $50,000, provided the firm was given $8,175.35
    of that amount to cover disbursements. By email that same day, the appellant accepted
    Bertschi Orths offer.

[31]

Quinn Thiele, however,
    took a different position. On November 16, 2013, Mr. Grodzki emailed the
    appellant as follows: Please review the [Charging Order], the Court ordered
    that both accounts ([Bertschi Orth] and us) have to be settled before any funds
    released. The consent from [Ms. Letourneau] is useless. The appellant
    responded the next day, explaining his belief that consent among the parties
    was sufficient for the funds to be released.

[32]

On November 19, 2013,
    the appellant again informed Quinn Thiele that, in his view, a court motion was
    not required for the release of the requested funds. The appellant requested
    payment of $8,175.35 to Bertschi Orth, and $41,824.65 to himself. He concluded,
    highlighting his mounting financial pressures a third time: I want to stress
    to the partners HOW URGENT this matter is from a personal and financial
    matter.

[33]

Mr. Thiele responded
    to the appellant on November 20, 2013 in an email saying:

I note your comment that a Court order is not required, that
    the consent from Ms. Letourneau is enough. Frankly, that is simply not true.
    The Court has ordered the proceeds charged and prohibits our dealing with the
    funds until the assessment. Ms. Letourneaus consent does not carry the same
    weight as a Court Order and she, (like every other lawyer) does not have the
    power to over-ride a Judges order. Only a Judge may undo or change a Judges
    order. That being said, with consent, we can fairly quickly get a Judge to make
    a new order releasing funds etc., so long as there is consent. This is often
    and normally done on a Friday in express motions court. The earliest that
    anyone in this office could draft and attend to such a motion would be November
    29, 2013.

He noted that it was his
    understanding that Mr. Grodzki had offered to settle the firms account with
    the appellant for $210,000.

The Settlement, the Fee Agreements and the Consent Order

[34]

The appellant
    responded at 4:29 a.m. on November 21, 2013, agreeing to take Quinn Thieles
    settlement offer of $210,000. He noted that his acceptance came in the light of
    Quinn Thieles confirmation that the $50,000 could not be released as a result
    of the Charging Order and that a failure to accept the $210,000 offer would
    lead to an assessment hearing with consequent costs and delay. That same day,
    the appellant signed a settlement agreement with Quinn Thiele.

[35]

Shortly

thereafter,

the

appellant

settled the Bertschi

Orth account for

$100,000
.
On
    November 28, 2013, the appellant signed a release as contemplated by this
    settlement.

[36]

These two agreements
    will collectively be referred to as the Fee Agreements.

[37]

Quinn Thiele then
    obtained the Consent Order. Pursuant to the terms of this order, the Charging
    Order was set aside and the monies in trust were released to Quinn Thiele for
    distribution in accordance with the Fee Agreements, with the remainder to the
    appellant.

[38]

Quinn Thiele and
    Bertschi Orth

delivered

their

final

accounts

to the

appellant

on December

4, 2013 and

December

31, 2013,

in

the

amounts

of

$264,195.74 and $
92,541.35
,

respectively. Bertschi Orths December 31 account also included a Trust
    Statement indicating a payment of $7,458.65 for two additional invoices.

Proceedings below

[39]

On November 25, 2014, the
    appellant applied for an order for both accounts to be assessed and, if
    required, an order setting aside the Consent Order and related settlement
    documents.

[40]

The
a
pplication

judge dismissed the application. The entirety of his brief
    endorsement reads as follows: By virtue of the [Consent Order] I have no
    jurisdiction to hear this matter as it is in fact a matter for an appeal to the
    Court to Appeal subject to leave etc.

ISSUES

[41]

The appeal raises two
    issues:

1.

Did the
    application judge err in concluding that he was unable to consider the
    application for want of jurisdiction?

2.

If the
    application judge had jurisdiction to consider the matter, should this court
    order an assessment of the respondents accounts?

ANALYSIS

(1)

Did the application judge err in concluding that he was unable to
    consider the application for want of jurisdiction?

[42]

I am of the view that
    the application judge erred in finding that he lacked jurisdiction to consider
    the appellants request for an order directing the respondents accounts be
    assessed.

The procedural argument

[43]

As previously
    indicated, within his application seeking an order that the Fee Agreements be
    assessed, the appellant requested an order setting aside the Consent Order.

[44]

The respondents submit
    that an order to set aside a court order can only be obtained by way of a
    motion under r. 59.06 of the
Rules of Civil
    Procedure
, R.R.O. 1990, Reg. 194.
[5]
The appellant brought an application under r. 14.05. The remedies provided for
    under this rule do not include the order requested by the appellant.
    Consequently, the application judge was procedurally barred from considering
    the request.

[45]

In my opinion, acceding
    to this procedural argument would not be consistent with the principles that
    form the foundation of the
Rules of Civil Procedure
.


[46]

Rule 2.01(1) provides
    that a failure to comply with the
Rules

is an irregularity and
    does not render a proceeding, or a step in a proceeding, a nullity. The court
    may grant all necessary amendments or other relief, on such terms as are just,
    to secure the just determination of the real matters in dispute. Relatedly, r.
    2.01(2) provides that the court shall not set aside an originating process on
    the ground that the proceeding should have been commenced by an originating
    process other than the one employed.

[47]

Rule 2.01 reflects the
    general principle outlined in r. 1.04(1), that the rules shall be liberally
    construed to secure the just, most expeditious and least expensive
    determination of every civil proceeding on its merits. As this court explained
    in
Finlay v. Van Paassen
, 2010 ONCA 204, 101 O.R. (3d) 390, at para.
    14:

Rule 1.04(1) and rule 2.01 are intended to do away with overly technical
    arguments about the effect of the Rules and orders made under them. Instead,
    these provisions aim to ensure that the Rules and procedural orders are
    construed in a way that advances the interests of justice, and ordinarily
    permits the parties to get to the real merits of their dispute.

[48]

In my view, the
    respondents procedural argument is overly technical. The appellant had no
    choice but to start a new proceeding as the tort action had been dismissed by
    order dated August 26, 2013. He did so by Notice of Application seeking an
    assessment of the respondents accounts. It was within that valid application
    that the appellant sought an order setting aside the Consent Order.

[49]

It is worth noting
    that this court has previously addressed procedural or technical discrepancies
    in the context of assessments of solicitors accounts. In
Price v. Sosnini

(2002), 60 O.R. (3d) 257 (C.A.), a decision to which I will again refer
    later in these reasons, Sharpe J.A. said, at para. 19:

The court has an inherent jurisdiction to control the conduct
    of solicitors and its own procedures. This inherent jurisdiction may be applied
    to ensure that a client's request for an assessment is dealt with fairly and
    equitably despite procedural gaps or irregularities.

[50]

It is my opinion that,
    in these circumstances, it was open to the application judge to consider the
    appellants request to set aside the Consent Order notwithstanding it was relief
    sought within an application.

Did the Consent Order deprive the application judge of jurisdiction
    to order an assessment, if one was warranted?

[51]

I agree with the application
    judges view, expressed in his endorsement, that the Consent Order, as it
    stood, was a bar to his assuming jurisdiction to consider the request that the Fee
    Agreements be assessed. While the Consent Order remained in place, an
    assessment of the Fee Agreements would have allowed the appellant to avoid the
    consequences of the order issued against him; namely, the final acceptance and
    payment of the fees and disbursements to the respondents. In such
    circumstances, an order that the Fee Agreements be assessed would have
    constituted an attack made in proceedings other than those whose specific
    object is the reversal, variation, or nullification of the order:
R. v.
    Wilson
, [1983] 2 S.C.R. 594, at p. 599;
Garland v. Consumers Gas Co.
,
    2004 SCC 25, [2004] 1 S.C.R. 629, at para. 71. In short, an assessment order
    would have amounted to an impermissible collateral attack on the Consent Order.

[52]

My difficulty with the
    application judges view is that, here, the appellant specifically requested
    that the application judge set the Consent Order aside, removing any collateral
    attack concerns. In my view, the application judge should have considered this
    request and his failure to do so constituted an error in law.

Should this court set aside the Consent Order?

[53]

In
Aristocrat v.
    Aristocrat
(2004), 73 O.R. (3d) 275, this court held that r. 59.06 does
    not confer jurisdiction to hear a motion to set aside an order, at first
    instance. Here, however, a request to set aside the Consent Order was brought
    before the application judge. And the application judge considered this request
    in the face of a complete record and arguments by the parties.

[54]

I therefore now turn
    to the question whether this record supports the granting of such an order.

[55]

The respondents submit
    that the application judges comment in the brief hearing before him that there
    was a lack of evidence of fraud, slip, [or] mistake is fatal to the
    appellants claim to have the Consent Order set aside. Furthermore, say the
    respondents, the objectives of finality and certainty would be undermined if
    the Consent Order were disturbed.

[56]

I disagree.

[57]

Courts are, with good
    reason, cautious about setting aside orders, particularly those made on
    consent. Finality is important in litigation. And, when dealing with a consent
    order, the objective that parties be held to their agreements is also an
    important consideration.

[58]

However, as this court
    remarked in
Tsaoussis (Litigation Guardian of) v. Baetz
(1998), 41
    O.R. (3d) 257, at p. 272, there are ways, two in fact, by which an individual
    who would otherwise be bound by a previous order can seek to have that order
    set aside. First, the party can move in the original proceedings under r. 59.06(2)(a)
    in cases of fraud or facts arising or discovered after [the order] was made. Or,
    the party can bring a separate action to set aside the order.

[59]

The role of r. 59.06 is
    to provide an expeditious procedure for setting aside court orders. However, it
    does not prescribe or delineate a particular test:
Mohammed v. York Fire
    & Casualty Insurance Co.
(2006), 79 O.R. (3d) 354 (C.A.), at para. 36,
    leave to appeal refd, [2006] S.C.C.A. No. 269;
Tsaoussis,
at p. 272. Ultimately,
    under r. 59.06 or within a separate action, an individual seeking to set aside
    an order is required to show circumstances which warrant deviation from the
    fundamental principle that a final [order], unless appealed, marks the end of
    the litigation line:
Tsaoussis
, at p. 266.

[60]

Thus, a court is not
    limited to setting aside an order in instances of fraud or facts arising or
    discovered after the order has been made. This is reflected in a review of this
    courts decisions, which demonstrates a willingness to depart from finality and
    set aside court orders where it is necessary in the interests of justice to do
    so: see
Stoughton Trailers Canada Corp. v. James Expedite Transport Inc.,

2008 ONCA 817, adopting the principles set out in
Beetown Honey
    Products Inc., Re
(2003), 67 O.R. (3d) 511 (S.C.), affd without comment
    on this issue, (2004), 3 C.B.R. (5th) 204 (Ont. C.A.);
Cookish v. Paul Lee
    Associates Professional Corp.,

2013 ONCA 278, 305 O.A.C. 359.

Application

[61]

For the following reasons,
    it is my view that setting aside the Consent Order is necessary to achieve
    justice between the appellant and the respondents relating to the legal costs
    associated with the tort action.

[62]

I return to the
    background of the Consent Order.

[63]

There is no suggestion
    that Bertschi Orth was not entitled to request a charging order to secure
    payment for services rendered. I do question, however, why the Charging Order was
    sought and granted over the entire amount of the settlement funds rather than
    an amount sufficient to protect Bertschi Orths interests.

[64]

What is also problematic,
    in my view, is Quinn Thieles conduct once the Charging Order was in place.

[65]

As detailed above, the
    record demonstrates that Quinn Thiele was well aware of the significant
    financial pressure the appellant was facing in the fall of 2013.

[66]

Against that
    background, Quinn Thiele not once but twice informed the appellant that $50,000
    of his own money could not be released to him, even with Bertschi Orths consent.
    This advice was incorrect. And all Quinn Thiele had to do to know that this advice
    was incorrect was to review the Charging Order.

[67]

Quinn Thiele admits
    that the position it repeatedly took with the appellant that no money could be
    released to him, on consent, was not correct. It contends, however, that this
    error was immaterial for two reasons.

[68]

First, Quinn Thiele
    argues that the appellant instructed Ms. Letourneau to stop the process for the
    release of the funds because he was negotiating a settlement with both firms.

[69]

I cannot agree with
    this submission. It is not clear from the record that the appellant gave such
    instructions to Ms. Letourneau. Although in the appellants email to Ms.
    Letourneau on November 21, 2013, he tells her to put the filing on the back
    burner, it is unclear whether that comment referred to her earlier commitment
    to rectify an issue that had arisen with the court file number for the
    assessment, or her earlier expressed opinion that the parties consent did not
    need to be filed in court. Even if the record does support a finding that the
    appellant made such a request, it was made after Quinn Thiele had erroneously
    led the appellant to believe that a small portion of the settlement funds could
    not be released on consent.

[70]

Second, Quinn Thiele
    submits that, during the negotiations relating to the settlement of the legal
    fees, the appellant had access to independent legal advice.

[71]

A review of the record
    indicates that this was not the case. The appellant briefly spoke to two
    lawyers in October 2013. Both lawyers told the appellant that they would
    require a retainer. To Quinn Thieles knowledge, the appellant was unable to afford
    a retainer. He was approaching bankruptcy. He was in the middle of divorce
    proceedings. He had lost his job as a corporate account executive in 2010, and
    had achieved limited success at several different jobs thereafter. He had drained
    his savings and investments.

[72]

The application judge
    did not consider whether setting aside the Consent Order was necessary to
    achieve justice in this case. As such, this court is justified in weighing the
    relevant considerations and coming to its own conclusion. Having done so, I
    conclude that the Consent Order should be set aside. This would achieve a just
    result as it would allow the appellants request for an assessment to be
    considered on its merits.

[73]

My conclusion is based
    on the cumulative impact of the following:

·

In the fall of 2013, the time when his financial obligations to
    the respondents were being discussed, the appellant was, to the knowledge of
    the respondents, in a very vulnerable position. He had suffered a traumatic
    brain injury, the after-effects of which he continued to experience, and was
    suffering from depression. And, he was in desperate financial straits.

·

Quinn Thiele increased the already existing pressure on the appellant
    in a number of ways.

o

Quinn Thiele did not take steps available to it to ensure that
    Bertschi Orths fees and disbursements were protected. While Ms. Noels
    correspondence indicated Bertschi Orth did not receive instructions from the
    appellant to sign an undertaking, there is no evidence that she explained the
    consequences of this decision to him. This failure to take steps gave rise to
    the need to obtain the Charging Order. The Charging Order made the Consent
    Order necessary.

o

There is no indication that, in responding to Bertschi Orths
    request for a charging order, Quinn Thiele took the position, on behalf of the
    appellant, that the scope of the Charging Order should be limited to the amount
    claimed by Bertschi Orth, and not granted over all the settlement funds.

o

Quinn Thiele gave the appellant erroneous legal advice to the
    effect that he could not access a relatively small amount of his money. In
    doing so, Quinn Thiele admits, it misinterpreted the clear legal effect of the
    Charging Order.

o

Quinn Thiele urged the appellant to settle his account with it,
    arguing that Quinn Thiele would then assist the appellant in his negotiations
    with Bertschi Orth thereby saving him the considerable expenditure of time and
    legal costs associated with an assessment.

·

In dealing with the issue of the Charging Order and amounts owed
    to the respondents, the appellant did not have independent legal advice.

·

Quinn Thieles initial draft account to the appellant was $305,159.14,
    an amount incorrectly calculated based on 30 percent of $800,000. The base
    amount should have been significantly lower, subtracting the $105,000 portion
    for the appellants then wife, the $20,000 in costs awarded to one of the
    co-defendants, and the amount for party and party costs. This over-calculation
    of the amount the appellant may have owed to Quinn Thiele under the contingency
    agreement presented an inflated starting point for the fee negotiations that
    took place in the fall of 2013.

·

There is no evidence that the Fee Agreements were negotiated
    with the appellant in circumstances in which he would have understood the
    impact of the Consent Order on the amount he would ultimately receive from the
    settlement.

·

The respondents do not point to any specific prejudice they would
    suffer if the Consent Order were set aside.

[74]

Of additional
    relevance is the fact that the Consent Order pertained to agreements relating
    to the amount and payment of legal fees and disbursements. As I explain below,
    agreements of this type involve the public interest in a way other private
    contractual matters do not. Thus, the interests of justice in this case must be
    understood in the light of the courts supervisory role over the rendering and
    payment of legal accounts.

(2)

Should this Court order an assessment of the respondents accounts?

[75]

The conclusion that
    the Consent Order should be set aside allows this court to consider whether the
    Fee Agreements, which, under the terms of the Consent Order, have been paid,
    should be reopened and an assessment of the accounts rendered further to those
    agreements, ordered.

[76]

The respondents submit
    that the circumstances do not warrant ordering an assessment, primarily on the
    basis that the appellant willingly participated in the settlement of the
    amounts he owed the respondents through the Fee Agreements. In so doing, he
    chose to forego the scheduled assessment of the Bertschi Orth account and the
    opportunity to have the Quinn Thiele account assessed.

The role of the courts

[77]

The courts have
    inherent jurisdiction as well as jurisdiction under the
Solicitors Act
to order lawyers accounts to be assessed. Both sources of jurisdiction respond
    to the public interest component of the rendering of legal services and
    lawyers compensation, and the importance of maintaining public confidence in
    the administration of justice.

[78]

In
Plazavest
    Financial Corp. v. National Bank of Canada
(2000), 47 O.R. (3d) 641
    (C.A.), at para. 14, Doherty J.A. explained how the public interest informs the
    courts role in supervising the rendering of legal services and payment of
    legal fees:

The rendering of legal services and the determination of
    appropriate compensation for those services is not solely a private matter to
    be left entirely to the parties. There is a public interest component relating
    to the performance of legal services and the compensation paid for them. That
    public interest component requires that the court maintain a supervisory role
    over disputes relating to the payment of lawyers' fees. I adopt the comments of
    Adams J. in
Borden & Elliot v. Barclays Bank of Canada
(1993), 15
    O.R. (3d) 352 (Gen. Div.) at pp. 357-58, where he said:

The
Solicitors Act
begins with s. 1 reflecting the
    legal profession's monopoly status. This beneficial status or privilege of the
    profession is coupled with corresponding obligations set out in the Act and
    which make clear that the rendering of legal services is not simply a matter of
    contract. This is not to say a contract to pay a specific amount for legal fees
    cannot prevail. It may. But even that kind of agreement can be the subject of
    review for fairness: see s. 18 of the
Solicitors Act
.

[79]

In
Price
, at
    para. 19, Sharpe J.A. further elucidated the courts role:

Public confidence in the administration of justice requires the
    court to intervene where necessary to protect the client's right to a fair
    procedure for the assessment of a solicitor's bill. As a general matter, if a
    client objects to a solicitor's account, the solicitor should facilitate the
    assessment process, rather than frustrating the process. In my view, the
    courts should interpret legislation and procedural rules relating to the
    assessment of solicitors' accounts in a similar spirit. As Orkin argues,
    "if the courts permit lawyers to avoid the scrutiny of their accounts for
    fairness and reasonableness, the administration of justice will be brought into
    disrepute." The court has an inherent jurisdiction to control the conduct
    of solicitors and its own procedures. This inherent jurisdiction may be applied
    to ensure that a client's request for an assessment is dealt with fairly and
    equitably despite procedural gaps or irregularities. [Citations omitted.]

The applicable provisions of the
Solicitors
    Act

[80]

For context, I start
    with s. 16(1) of the
Solicitors Act
,
which provides:

Subject to sections 17 to 33, a solicitor may make an agreement
    in writing with his or her client respecting the amount and manner of payment
    for the whole or a part of any past or future services in respect of business
    done or to be done by the solicitor, either by a gross sum or by commission or
    percentage, or by salary or otherwise, and either at the same rate or at a
    greater or less rate than that at which he or she would otherwise be entitled
    to be remunerated.

[81]

The term agreement includes
    but is not limited to contingency fee agreements, which, for the purposes of
    ss. 16 and 20-32, are considered to be agreements:
Solicitors Act
, ss.
    15, 28.1(10).

As Salhany J. explained in
Ruetz v. Morscher & Morscher
(1995),
    28 O.R. (3d) 545 (Ont. Gen. Div.), at p. 550, Section 16 of the
Solicitors
    Act

does not require that the agreement take on any particular form.
    The authorities are clear that all that is required is that the document be an
    enforceable agreement. In this case, the agreements in question were not the
    initial contingency agreements or the Consent Order, but rather the Fee
    Agreements entered into in full satisfaction of each respondents fees and
    disbursements.

[82]

Because the amounts
    agreed upon in the Fee Agreements have been paid, the operative provision for
    the purposes of reopening the agreements and ordering an assessment is s. 25 of
    the
Solicitors Act
:

Where the amount agreed under any such agreement has been paid
    by or on behalf of the client or by any person chargeable with or entitled to
    pay it, the Superior Court of Justice may, upon the application of the person
    who has paid it if it appears to the court that the
special circumstances
of the case require the agreement to be reopened, reopen it and order the
    costs, fees, charges and disbursements to be assessed, and may also order the
    whole or any part of the amount received by the solicitor to be repaid by him
    or her on such terms and conditions as to the court seems just. [Emphasis
    added.]

Special circumstances

[83]

The question is,
    therefore, whether the record supports a finding that special circumstances
    exist here that require the Fee Agreements to be reopened and an assessment
    ordered. The jurisprudence reveals limited consideration of the scope of special
    circumstances as expressed in s. 25 of the
Solicitors Act
, in particular
.

[84]

As noted by courts
    considering the meaning of special circumstances within other provisions of
    the
Solicitors Act
, however, the language implies that the court has a
    broad discretion to determine the matter having regard to all the circumstances
    in the case, but that ordering an assessment after payment will be the exception
    rather than the rule:
Minkarious v. Abraham, Duggan
(1995), 27 O.R.
    (3d) 26 (Gen. Div.), at paras.
47, 51-52;
Guillemette v.
    Doucet
, 2007 ONCA 743, 88 O.R. (3d) 90, at para. 4;
Plazavest
, at
    paras.
29-30, 33;
Echo Energy Canada Inc. v. Lenczner Slaght Royce
    Smith Griffin LLP
, 2010 ONCA 709, 104 O.R. (3d) 93, at paras. 29, 32;
Bui
    v. Alpert
, 2014 ONCA 495, at para. 7.

[85]

In the s. 11 context,
    where the payment of a bill does not preclude the court from referring it for
    assessment if the special circumstances of the case appear to require it, this
    court has noted that exceptional circumstances of either a contractual or
    equitable nature could lead a court to find that an assessment is necessary or
    essential on general principles or is called for as being appropriate or
    suitable in the particular case:
Plazavest
, at para. 33. In
Echo
    Energy,
at paras. 30-31, this court said that in the context of s. 11,
    those special circumstances relate to the underlying principle that payment of
    the account implies that the client accepted that the account was proper and
    reasonable. Thus, special circumstances will tend to either undermine the
    presumption that the account was accepted as proper or show that the account
    was excessive or unwarranted.

[86]

With this in mind, I view
    the authorities and the objectives of the
Solicitors Act
as supporting
    the following broader test: Special circumstances are those in which the
    importance of protecting the interests of the client and/or public confidence
    in the administration of justice, demand an assessment.

[87]

In
The Law of
    Costs
, loose-leaf, 2nd ed. (Toronto: Canada Law Book, 2015), at para.
    306.3, Mark M. Orkin identifies the relevant circumstances as including but not
    limited to:

·

the
    sophistication of the client;

·

the
    adequacy of communications between solicitor and client concerning the
    accounts;

·

whether
    there is evidence of increasing lack of satisfaction by the client regarding
    the services relating to the accounts;

·

whether
    there is overcharging for services provided;

·

the
    extent of detail of the bills;

·

whether
    the solicitor/client relationship is ongoing; and

·

whether
    payments can be characterized as involuntary.

Application

[88]

The appellant is not
    unsophisticated but was, at the time he entered into the Fee Agreements,
    vulnerable. He was permanently impaired by the brain injury he suffered in the
    car accident. He was under intense financial pressure. The appellant did not
    have independent legal advice when such was clearly called for.  He expressed
    his dissatisfaction with the legal services rendered by both firms. He
    terminated his retainer with Bertschi Orth and, when it came to resolving the firms
    fees and disbursements, the appellant expressed his frustration with Quinn
    Thiele.  Finally, at the time the Fee Agreements were entered into, detailed
    accounts had not been rendered by Quinn Thiele.

[89]

Furthermore, of
    particular importance is Quinn Thieles representation of the appellant.  I
    refer to conduct referred to above that; 1) contributed to the need for
    Bertschi Orth to obtain the Charging Order, 2) resulted in an order that
    reflected no effort on Quinn Thieles part to represent the appellants
    interests by ensuring that the Charging Order affected him only to the extent
    necessary, 3) misled the appellant by providing erroneous legal advice and 4) exerted
    pressure on the appellant to settle  all of which put the appellant in a
    position in which he had little choice but to enter into the Fee Agreements.

[90]

In these
    circumstances, considered cumulatively, the protection of the appellants interests
    and the publics confidence in the administration of justice demand that the Fee
    Agreements be reopened and an assessment be ordered.

Impact of the Consent Order

[91]

I now turn to a
    consideration of whether the Consent Order acted to fulfil the purposes of an
    assessment under the
Solicitors Act
.

[92]

A consent order is
    not a judicial determination on the merits of a case but only an agreement
    elevated to an order on consent:
Rick v. Brandsema
, 2009 SCC 10,
    [2009] 1 S.C.R. 295, at para. 64.

[93]

There is no evidence
    that Smith J., in granting the Consent Order, did what an assessment officer
    would do; namely, consider the fairness or reasonableness of the Fee
    Agreements. In these circumstances, the Consent Order did not act as a
    substitute for an assessment. It had nothing to do with promoting the public
    interest, ensuring public confidence in the administration of justice or protecting
    the appellant. It was issued to elevate the Fee Agreements to an order that
    would allow the parties to access the monies being held under the Charging
    Order.

[94]

The fact that the Consent
    Order forms part of the background in which the assessment order is being
    requested does not detract from the conclusion that the special circumstances in
    this case demand that an assessment be ordered.

Conclusion regarding the Request for an Assessment Order

[95]

I therefore conclude
    that, in the circumstances of this case, relief should be granted under s. 25
    of the
Solicitors Act
.
The Fee Agreements should be reopened and
    an assessment of the respondents fees and disbursements should take place.

DISPOSITION

[96]

For these reasons, I would allow the appeal, set aside the Consent
    Order and direct that the costs, fees, charges and disbursements incurred or
    chargeable in respect of the matters included therein be assessed.

[97]

The application judge did not determine the costs of the
    application. I would award the appellant his costs of the application, fixed in
    the amount of $10,000, including disbursements and applicable taxes.

[98]

Further to the parties written submissions as to costs, I would
    award the appellant his costs of this appeal in the amount of $15,000,
    including disbursements and applicable taxes.

Released: May 19, 2016 (GE)

Gloria
    Epstein J.A.

I
    agree E.A. Cronk J.A.

I
    agree Grant Huscroft J.A.





[1]
Then known as Bertschi Orth Smith LLP.



[2]
The accident benefit claim was settled by a paralegal firm working out of
    Bertschi Orths offices, and is not relevant to this appeal.



[3]
Any reference in this decision to fees and disbursements owed by the appellant
    to the respondents encompasses those for services rendered both to the
    appellant himself and to his children, as the appellant agreed to pay for both
    sets of fees and disbursements.



[4]
In an email dated November 20, 2013, Michael Thiele, a partner at Quinn Thiele,
    revised this amount. He informed the appellant that the total amount of fees
    and disbursements owed was $264,210.50, more than $40,000 less than the
    original amount stated.



[5]
Rule 59.06(2)(a) provides as follows: A party who seeks to, (a) have an order
    set aside or varied on the ground of fraud or of facts arising or discovered
    after it was made may make a motion in the proceeding for the relief claimed.


