Whitney v. Grant Estate et al., (2011) 374 N.B.R.(2d) 130 (TD)

• Judge: Garnett, J.
• Court: Court of Queen's Bench of New Brunswick (Canada)
• Case Date: March 01, 2011
• Jurisdiction: New Brunswick
• Citations: (2011), 374 N.B.R.(2d) 130 (TD);2011 NBQB 68

Whitney v. Grant Estate (2011), 374 N.B.R.(2d) 130 (TD);

    374 R.N.-B.(2e) 130; 965 A.P.R. 130

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

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Temp. Cite: [2011] N.B.R.(2d) TBEd. MR.007

Renvoi temp.: [2011] N.B.R.(2d) TBEd. MR.007

Berry Allen Whitney, as Represented by His Litigation Guardian, Jason Edward Whitney (plaintiff) v. The Estate of Orville Harry Grant, as Represented by His Administrator, Deanna Elizabeth Grant and Rogers Cable Communications Inc., a Body Corporate (defendants)

(F-C-048-08; 2011 NBQB 68; 2011 NBBR 68)

Indexed As: Whitney v. Grant Estate et al.

Répertorié: Whitney v. Grant Estate et al.

New Brunswick Court of Queen's Bench

Trial Division

Judicial District of Fredericton

Garnett, J.

March 4, 2011.

Summary:

Résumé:

The plaintiff was injured in a motor vehicle accident. The plaintiff retained counsel and entered into a contingent fee agreement in which the plaintiff agreed to pay 25% of "the total amount recovered ... exclusive of costs, charges, disbursement and taxes." The matter was settled for $1,000,000. Counsel sought approval of the settlement, including the amount to which he was entitled by virtue of the agreement. He claimed $243,002 plus $31,590.39 HST for a total of $274,593.39. In addition, the client had to pay $21,687.99 in disbursements which brought the total to $296,281.38.

The New Brunswick Court of Queen's Bench, Trial Division, held that fees in the amount of $150,000 plus HST were fair and reasonable for the plaintiff and his counsel.

Barristers and Solicitors - Topic 3126

Compensation - Agreements - Contingent fees - General - The New Brunswick Court of Queen's Bench, Trial Division, discussed contingent fee agreements in New Brunswick and concluded that "[s]ome members of the bar enter contingency arrangements in a large percentage of their cases; even, in some cases, where such an arrangement is not necessary and, in some instances, unconscionable. [...] there are some cases which are virtually risk-free. The lawyer knows almost immediately that success is certain and in some cases the damages will be large. Asking a client to agree to pay 25% of the damages in return for the lawyer financing the litigation amounts to usury. [...] I disagree with [the] assertion that 'a solicitor may make what bargain he likes'. Lawyers owe a fiduciary duty to their clients. It is the highest duty which the law exacts. Included in that is the duty to ensure that the lawyer's interests do not conflict with the client's. When faced with a circumstance in which the lawyer knows that it would be much better for the client not to enter a contingency fee agreement, the lawyer has a duty to help the client find another way to fund the litigation and to discourage contingency fee arrangements or, at least, set a percentage which is 'fair and reasonable'. It appears that some lawyers believe it is perfectly acceptable to enter contingency fee arrangements with everyone who walks in the door even when they are unnecessary and unwarranted. [...] contingency fee arrangements are a means of making courts available to people who cannot afford legal fees. When such arrangements are abused, however, the result is that those people who are too poor to pay, end up paying much more than their wealthier fellow citizens would pay for the same service." - See paragraphs 6 to 23.

Barristers and Solicitors - Topic 3130

Compensation - Agreements - Contingent fees - Review and approval - The plaintiff was injured in a motor vehicle accident - The plaintiff retained counsel and entered into a contingent fee agreement in which the plaintiff agreed to pay 25% of "the total amount recovered ... exclusive of costs, charges, disbursement and taxes." - The matter was settled for $1,000,000 - Counsel sought approval of the settlement, including the amount to which he was entitled by virtue of the agreement - He claimed $243,002 plus $31,590.39 HST for a total of $274,593.39 - In addition, the client had to pay $21,687.99 in disbursements which brought the total to $296,281.38 -The New Brunswick Court of Queen's Bench, Trial Division, held that fees in the amount of $150,000 plus HST were fair and reasonable for the plaintiff and his counsel - The issues in the case at bar frequently arose in motor vehicle accident litigation and were within the expertise of counsel - Liability was admitted - There was very little risk associated with the litigation - The success of the settlement was of great importance to the plaintiff who would need personal care for the rest of his life - However, counsel displayed care and skill in pursuing the matter - He worked on the matter for more than 4.5 years without remuneration and he had paid all the disbursements - See paragraphs 23 to 33.

Barristers and Solicitors - Topic 3132

Compensation - Agreements - Contingent fees - Modifications or cancellation or departure from agreement (incl. premiums) - [See Barristers and Solicitors - Topic 3130 ].

Barristers and Solicitors - Topic 3137

Compensation - Agreements - Contingent fees - Duty to client - [See Barristers and Solicitors - Topic 3126 ].

Avocats et notaires - Cote 3126

Rémunération - Accords d'honoraires conditionels - Généralités - [Voir Barristers and Solicitors - Topic 3126 ].

Avocats et notaires - Cote 3130

Rémunération - Accords d'honoraires conditionnels - Révision et approbation - [Voir Barristers and Solicitors - Topic 3130 ].

Avocats et notaires - Cote 3132

Rémunération - Accords d'honoraires conditionnels - Modification ou annulation ou dérogation de l'accord (y compris les primes) - [Voir Barristers and Solicitors - Topic 3132 ].

Avocats et notaires - Cote 3137

Rémunération - Accords d'honoraires conditionnels - Obligation envers le client - [Voir Barristers and Solicitors - Topic 3137 ].

Cases Noticed:

Mealey v. Godin et al. (1998), 203 N.B.R.(2d) 271; 518 A.P.R. 271 (T.D.), refd to. [para. 7].

Shanks v. Moore (1993), 133 N.B.R.(2d) 220; 341 A.P.R. 220 (T.D.), refd to. [para. 7].

Mealey v. Godin et al. (1999), 221 N.B.R.(2d) 372; 567 A.P.R. 372; 179 D.L.R.(4th) 231 (C.A.), refd to. [para. 9].

Hogan v. Hello et al. (1962), 1 N.B.R.(2d) 306 (Q.B.), refd to. [para. 10].

Attorneys and Solicitors Act, 1870, Re (1875), 1 Ch. D. 573, refd to. [para. 11].

Rusk v. Medicine Hat (City) et al. (2002), 305 A.R. 332 (Q.B.), refd to. [para. 13].

Coronation Insurance v. Florence, [1994] S.C.J. No. 116, refd to. [para. 14].

MacLeod v. Harrington (1995), 69 B.C.A.C. 1; 113 W.A.C. 1 (C.A.), refd to. [para. 14].

Ormrod v. Goodall (2002), 209 N.S.R.(2d) 330; 656 A.P.R. 330 (S.C.), refd to. [para. 18].

McIntyre Estate v. Ontario (Attorney General) (2002), 164 O.A.C. 37 (C.A.), refd to. [para. 18].

Counsel:

Avocats:

J. William Cabel, for the plaintiff.

This motion was heard on March 1, 2011, by Garnett, J., of the New Brunswick Court of Queen's Bench, Trial Division, Judicial District of Fredericton, who delivered the following judgment on March 4, 2011.