



COURT OF APPEAL FOR ONTARIO

CITATION: Theall Group LLP v. Bauer, 2022
    ONCA 22

DATE: 20220117

DOCKET: C69075

Huscroft, Trotter and Coroza
    JJ.A.

BETWEEN

Theall Group LLP

Applicant (Respondent in Appeal)

and

Michelle Bauer

Respondent (Appellant)

Barnet Goldberg, for the appellant

Catherine Francis, for the respondent

Heard: January 11, 2022 by
    video conference

On appeal from the judgment of Justice Grant
    R. Dow of the Superior Court of Justice, dated December 30, 2020, with reasons
    at 2020 ONSC 7161.

REASONS FOR DECISION

[1]

The appellant appeals the granting of a charge
    against her property under s. 34(1) of the
Solicitors Act
, R.S.O.
    1990, c. S.15. It was conceded that the first two steps of the well-established
    test for ordering a statutory charge were met: the property exists and was
    recovered or preserved through the instrumentality of the solicitor. The
    application judge found that the third step was also satisfied: the appellant
    was unable or unwilling to pay the respondents fees. Indeed, he found that the
    appellants behaviour completely contradicts her willingness to pay.

[2]

It is clear from his decision that the
    application judge considered the surrounding circumstances in deciding to
    impose the charge. He found that the appellant was disputing the respondents
    retainer and contesting efforts to quantify the amount owing to it, while the
    equity in the property was eroding rapidly. The application judge considered
    and rejected the appellants submission that the respondent should be limited
    to recovery based on her interpretation of the supplementary retainer agreement
     which, we note, specifically contemplated the respondents right to obtain a charge.

[3]

In summary, we see no error in the application
    judges finding, let alone a palpable and overriding error that would allow
    this court to intervene on appeal. The application judges discretionary
    decision to impose the charge is amply supported by the record and is entitled
    to deference.

[4]

Finally, the application judge did not improperly
    enhance the respondents security by granting the charge when a certificate of
    pending litigation was in place. The appellant made no attempt to discharge the
    certificate prior to the application, and no cross-application or motion was
    before
the application judge. In any event, the certificate
    provided notice and did not establish an interest or right in the property.

[5]

The appeal is dismissed. The respondent is
    entitled to $12,000 in costs, all inclusive.

Grant
    Huscroft J.A.

Gary
    Trotter J.A.

S.
    Coroza J.A.


