Mealey v. Godin et al., (1999) 221 N.B.R.(2d) 372 (CA)

• Judge: Rice, Ryan and Drapeau, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: March 23, 1999
• Jurisdiction: New Brunswick
• Citations: (1999), 221 N.B.R.(2d) 372 (CA);1999 CanLII 20761 (NB CA);221 NBR (2d) 372;179 DLR (4th) 231;[1999] NBJ No 413 (QL)

Mealey v. Godin (1999), 221 N.B.R.(2d) 372 (CA);

    221 R.N.-B.(2e) 372; 567 A.P.R. 372

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [1999] N.B.R.(2d) TBEd. OC.002

Michael E. Murphy of Murphy Collette Murphy, Solicitors for Terry Lynn Mealey, per litigation guardian Celinere Mealey (intervenor/appellant) v. The Committee of the Person and Estate of Terry Lynn Mealey and Terry Lynn Mealey, per litigation guardian, Celinere Mealey (respondents/respondents) and Layne Godin and Mathilda Godin (defendants) and Donald Mealey and Lynn Mealey (third parties)

(246/98/CA)

Indexed As: Mealey v. Godin et al.

New Brunswick Court of Appeal

Rice, Ryan and Drapeau, JJ.A.

September 29, 1999.

Summary:

A minor was struck by a motor vehicle and sustained serious injuries. A lawyer agreed to represent her on a contingency fee basis in an action for damages. The defendants added the minor's mother and father as third par­ties. The minor's lawyer agreed to accept a settlement of $940,000. An applica­tion was made to have a committee appointed to handle the minor's affairs pur­suant to the Infirm Persons Act. The court was also requested to approve the settlement which included legal fees of $223,901.39. The court allowed the application in part but requested more information regarding the lawyer's account.

The New Brunswick Court of Queen's Bench, Trial Division, in a decision reported 203 N.B.R.(2d) 271; 518 A.P.R. 271, ap­proved the settlement but reduced the legal fees to $135,000 and disallowed taxes on disbursements. The lawyer appealed the order disallowing part of his claim for legal fees and taxes on disbursements.

The New Brunswick Court of Appeal held that the motions judge made no error of law in reducing the legal fees and dismissed this aspect of the appeal. The court however allowed the appeal regarding the tax on disbursements.

Barristers and Solicitors - Topic 3130

Compensation - Agreements - Contingent fees - Review and approval - Rule 7 of the Rules of Court (N.B.) provided that a settlement of a claim by a person under legal disability was not binding on that person unless it was approved by the court - The New Brunswick Court of Appeal discussed the court's role under rule 7 - In particular the court discussed the test to be applied or procedure to be followed by the court where the application under rule 7 involved a request for approval of legal fees computed on the basis of a contigency fee - See paragraphs 17 to 23.

Barristers and Solicitors - Topic 3130

Compensation - Agreements - Contingent fees - Review and approval - An injured child's father retained a lawyer under a contingent fee arrangement (25%) - The Registrar approved the agreement (Judica­ture Act, s. 72.1) - Under s. 72.1(8) the Registrar could disallow legal fees payable under an approved contingency fee agree­ment if the settlement was substantially larger than anticipated - Section 72.1(11.1) provided that approved contingency fee agreements were enforceable against minors - Section 72.1 was repealed - Thereafter a settlement was reached which was much larger than anticipated resulting in a contingency fee of $233,923 - A motions judge approved the settlement but reduced the legal fees to $135,000 - The New Brunswick Court of Appeal held that the agreement accepted by the Registrar was subject to review under s. 72.1(8) and that its repeal altered the agreement in a fundamental way - As a result, the agree­ment submitted to the motions judge, as the foundation for the lawyer's account was not, by operation of law, the agree­ment originally accepted by the Registrar -Therefore the agreement was not enforce­able under s. 72.1(11.1) and it was open to the motions judge to exercise his discretion and tax the lawyer's account on a quantum meruit basis.

Infants - Topic 6128

Legal proceedings - Approval of settle­ments and judgments - Legal fees - [See both Barristers and Solicitors - Topic 3130 ].

Cases Noticed:

Van Wart v. La-Ko Enterprises Ltd. and Labrie (1981), 35 N.B.R.(2d) 256; 88 A.P.R. 256 (C.A.), refd to. [para. 2].

Hogan v. Hello et al. (1962), 1 N.B.R.(2d) 306 (Q.B.), refd to. [para. 17].

MacLeod v. Harrington (1995), 69 B.C.A.C. 1; 113 W.A.C. 1; 14 B.C.L.R.(3d) 201 (C.A.), refd to. [para. 20].

R. v. Rose (J.), [1998] 3 S.C.R. 262; 232 N.R. 83; 115 O.A.C. 201, refd to. [para. 20].

Ordon et al. v. Grail, [1998] 3 S.C.R. 437; 232 N.R. 201; 115 O.A.C. 1, refd to. [para. 20].

Eve, Re, [1986] 2 S.C.R. 388; 71 N.R. 1; 61 Nfld. & P.E.I.R. 273; 185 A.P.R. 273; 31 D.L.R.(4th) 1, refd to. [para. 20].

Noel v. Bell (1997), 188 N.B.R.(2d) 109; 480 A.P.R. 109 (T.D.), refd to. [para. 22].

Statutes Noticed:

Judicature Act, R.S.N.B. 1973, c. J-2, sect. 72.1 [para. 1]; sect. 72.1(8) [para. 26]; sect. 72.1(11.1) [para. 24].

Counsel:

John P. Barry, Q.C., and Deirdre L. Wade, for the appellant;

M. Debbie Hackett, for the respondents;

No one appeared for the defendants or third parties.

This appeal was heard on March 23, 1999, before Rice, Ryan and Drapeau, JJ.A., of the New Brunswick Court of Appeal. The fol­lowing decision was released for the court by Drapeau, J.A., on September 29, 1999.