Evans Sweeny Bordin LLP v. Zawadzki et al., (2015) 342 O.A.C. 160 (CA)

• Judge: Gillese, Lauwers and D. Brown, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: October 20, 2015
• Jurisdiction: Ontario
• Citations: (2015), 342 O.A.C. 160 (CA);2015 ONCA 756

Evans Sweeny Bordin v. Zawadzki (2015), 342 O.A.C. 160 (CA)

MLB headnote and full text

Temp. Cite: [2015] O.A.C. TBEd. NO.015

Evans Sweeny Bordin LLP (respondents) v. Joseph Zawadzki, Frenchmen's Creek Estates Inc. and 550075 Ontario Inc. (appellants)

(C60119; 2015 ONCA 756)

Indexed As: Evans Sweeny Bordin LLP v. Zawadzki et al.

Ontario Court of Appeal

Gillese, Lauwers and D. Brown, JJ.A.

November 9, 2015.

Summary:

The appellants, owners and developers of lands in Fort Erie worth about $20 million, entered into a contingency fee agreement with the respondent law firm. Under the agreement, the appellants agreed to pay the law firm a bonus of $500,000 in the event their appeal from a final order of foreclosure over their lands was granted. Their appeal was granted, and the law firm rendered an account for the bonus. The appellants had the account assessed. The assessment officer held that the contingency fee agreement was not fair or reasonable. On competing motions to oppose confirmation of the assessment officer's report, the motions judge held that the assessment officer lacked the jurisdiction to consider the fairness and reasonableness of the contingency fee agreement. He also held that the agreement was fair and reasonable. The appellants appealed.

The Ontario Court of Appeal dismissed the appeal.

Barristers and Solicitors - Topic 3130

Compensation - Agreements - Contingent fees - Review and approval - [See both Barristers and Solicitors - Topic 3243 ].

Barristers and Solicitors - Topic 3243

Compensation - Taxation or assessment of accounts - Jurisdiction - The Ontario Court of Appeal stated that in Cookish v. Paul Lee Associates (CA 2013), the court held that "... issues involving the enforceability of contingency fee agreements, including whether they are fair and reasonable, should be resolved by judges. The Solicitors Act ... does not authorize assessment officers to consider such issues ... Although a judge can refer issues to an assessment officer for determination ... a judge should not refer issues concerning the enforceability of a contingency fee agreement; at most, a judge may refer to an assessment officer the calculation of the quantum of a contingency fee under a valid contingency fee agreement ... Where a judge orders a reference to an assessment officer, the assessment order must contain clear language of delegation - language that simply refers a bill to an assessment officer for assessment is insufficient to vest in the assessment officer jurisdiction to determine disputes arising under a contingency fee agreement ..." - See paragraph 17.

Barristers and Solicitors - Topic 3243

Compensation - Taxation or assessment of accounts - Jurisdiction - The appellants land owners and developers, entered into a contingency fee agreement with a law firm, agreeing to pay the firm a bonus of $500,000 in the event their appeal from a final order of foreclosure over their lands was granted - Their appeal was granted, and the law firm rendered an account for the bonus - The appellants had the account assessed - The assessment officer held that the contingency fee agreement was not fair or reasonable - On competing motions to oppose confirmation of the assessment officer's report, the motions judge held that the assessment officer lacked the jurisdiction to consider the fairness and reasonableness of the contingency fee agreement - He also held that the agreement was fair and reasonable - The appellants appealed - The Ontario Court of Appeal dismissed the appeal - The motions judge correctly found that the assessment officer lacked jurisdiction to consider the fairness and reasonableness of the contingency fee agreement - The record before the motions judge enabled him to assess fairly the agreement, and there was no basis for appellate intervention in his conclusion that the agreement was fair and reasonable.

Cases Noticed:

Henricks-Hunter et al. v. 814888 Ontario Inc. et al. (2012), 294 O.A.C. 333; 2012 ONCA 496, refd to. [para. 16].

Cookish v. Lee (Paul) Associates Professional Corp. (2013), 305 O.A.C. 359; 2013 ONCA 278, refd to. [para. 17].

Price v. Sonsini (2002), 162 O.A.C. 85; 60 O.R.(3d) 257 (C.A.), dist. [para. 19].

Bales Beall LLP v. Fingrut, [2012] O.T.C. Uned. 4991; 356 D.L.R.(4th) 103; 2012 ONSC 4991, refd to. [para. 24].

Rabbani v. Niagara (Regional Municipality), [2012] O.A.C. Uned. 242; 2 M.P.L.R.(5th) 23; 2012 ONCA 280, refd to. [para. 32].

Counsel:

William L. Roland, for the appellants;

Michael Bordin, for the respondents.

This appeal was heard on October 20, 2015, before Gillese, Lauwers and D. Brown, JJ.A., of the Ontario Court of Appeal. The following decision was delivered for the court by D. Brown, J.A., on November 9, 2015.