



COURT OF APPEAL FOR ONTARIO

CITATION: National Fire Adjustment Co., Inc. v. Hanna, 2015
    ONCA 874

DATE: 20151210

DOCKET: C60262

Sharpe, Cronk and Miller JJ.A.

BETWEEN

National Fire Adjustment Co., Inc.

Plaintiff

(Respondent)

and

Shafek
    Hanna, Wanderleida Assuncao,

State
    Farm Fire and Casualty Company,

Rolf
    Piehler and Boghosian & Associates

Professional
    Corporation

Defendants

(
Appellants
)

William C. McDowell and Katie Pentney, for the
    appellants

Duncan M. MacFarlane Q.C., for the respondent

Heard and released orally: December 4, 2015

On appeal from the judgment of Justice Catrina D. Braid
    of the Superior Court of Justice, dated March 6, 2015.

ENDORSEMENT

[1]

This appeal relates to a solicitors undertaking. The appellant
    solicitor had represented a client on a mortgage. The client subsequently
    claimed on an insurance policy as a result of a fire. The client retained the
    respondent as its agent to assist in collecting the insurance proceeds. The
    respondent agreed to do so on the basis that it would recover a percentage of
    the proceeds as its fee. The client accepted those terms and gave a direction
    to its insurer that the proceeds were to be paid to the respondent. Despite
    that direction, proceeds were paid to other parties and in some instances insurance
    cheques were made payable to multiple payees. This gave rise to a problem in
    clearing the cheques. To resolve the problem, the appellant solicitor agreed to
    have the insurance cheques made payable to it in trust.

[2]

The contentious undertaking was given in an email sent by the solicitor
    to a representative of the respondent, the relevant portion of which read as
    follows:

Please make enquiries with [the representative of the
    insurer] as to what documentation he will be able to arrange for the next round
    of State Farm cheques to be made payable to Boghosian & Associates in trust
    in respect of non-building claims

I will provide NFA with a formal undertaking to
    protect your fee.

[3]

The appellants make two submissions:

(i)

that the undertaking related
    only to a single payment made by the insurer at the time the email was sent and
    not to any subsequent payments; and

(ii)

that the undertaking was given by
    the appellant solicitor on behalf of his client and not in his personal
    capacity.

[4]

The motion judge rejected those submissions.

[5]

We do not agree that the motion judge made any palpable and overriding
    error of fact or any error of law in coming to that conclusion.

[6]

In our view, when the email containing the undertaking is read in the
    light of the factual matrix that existed at the time, it was entirely open to
    the motion judge to read it as extending to future payments. As the motion
    judge noted in her reasons, the context of this email and undertaking is
    important. There were issues with clearing the cheques. By having the cheques
    deposited into the appellants trust account, those issues were resolved in a
    manner satisfactory to the respondent. We see no basis upon which this court
    could or should interfere with the central finding of the motion judge, namely:

On a plain and ordinary reading of the undertaking it
    is clear that the meaning and purpose of the undertaking was to protect NFAs
    fees in their entirety.

[7]

We also agree with the motion judges finding that had the appellant solicitor
    wished to limit the undertaking to one payment, it was incumbent upon him to do
    so expressly.

[8]

With respect to the second point, to the extent that there is any
    ambiguity, an undertaking is deemed to be that of the solicitor personally: see
Hudson v. Foster
, 2010 ONSC 3417 and the
Rules of Professional
    Conduct
: 5.16, Commentary [0.1], which states:

Unless clearly qualified, the lawyers undertaking is
    a personal promise and responsibility.

[9]

For these reasons, the appeal is dismissed.

[10]

Costs
    of the appeal to the respondent in the amount of $5211.14, inclusive of
    disbursements and taxes.

Robert J. Sharpe J.A.

E.A. Cronk J.A.

B.W. Miller J.A.


