Zipchen v. Bainbridge et al., (2005) 265 Sask.R. 243 (QB)

• Judge: Laing, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: May 10, 2005
• Jurisdiction: Saskatchewan
• Citations: (2005), 265 Sask.R. 243 (QB);2005 SKQB 218

Zipchen v. Bainbridge (2005), 265 Sask.R. 243 (QB)

MLB headnote and full text

Temp. Cite: [2005] Sask.R. TBEd. JN.027

Patricia Zipchen (applicant) v. Gary Bainbridge and Woloshyn & Company (respondents)

(1993 Q.B. No. 2523; 2005 SKQB 218)

Indexed As: Zipchen v. Bainbridge et al.

Saskatchewan Court of Queen's Bench

Judicial Centre of Saskatoon

Laing, J.

May 10, 2005.

Summary:

The applicant entered into a contingency fee agreement with the respondent lawyers in order to have them pursue a personal injury claim on her behalf. The applicant's claims were settled for $450,000. The applicant applied pursuant to s. 64(3) of the Legal Profession Act for a review of the contingency fee agreement.

The Saskatchewan Court of Queen's Bench held that the applicant did not make an informed choice to enter into the agreement and the agreement was therefore not fair within the meaning of s. 64(3). The court set aside the contingency fee agreement and assessed the respondents' fee on a quantum meruit basis.

Barristers and Solicitors - Topic 3044

Compensation - Agreements - General - Requirement that agreement be fair and reasonable - The applicant applied pursuant to s. 64(3) of the Legal Profession Act for a review of a contingency fee agreement which she had entered into with the respondent lawyers in order to have them pursue a personal injury claim on her behalf - While the applicant had told the respondents that she preferred a fee-for-service contract, the respondents had advised her that they undertook personal injury claims only on a contingency fee basis - The Saskatchewan Court of Queen's Bench held that the applicant did not make an informed choice to enter into the contingency fee agreement where the respondents did not explain why they were not prepared to act for her on an hourly rate, they did not explain how the proposed contingent fee rate would work, and they did not advise the plaintiff that other lawyers might take her case on an hourly rate basis - The contingency fee agreement was therefore not fair within the meaning of s. 64(3) - The court set aside the agreement and assessed the respondents' fee on a quantum meruit basis - See paragraphs 29 to 39.

Barristers and Solicitors - Topic 3047

Compensation - Agreements - General - Interpretation - The applicant applied pursuant to s. 64(3) of the Legal Profession Act for a review of a contingency fee agreement which she entered into with the respondent lawyers - The applicant took issue with the respondents' interpretation of the agreement - The respondents argued that interpretation of the agreement was not a proper subject of inquiry pursuant to s. 64(3) of the Act - The Saskatchewan Court of Queen's Bench held that the proper procedure for interpretation of a fee agreement was via taxation - The applicant had filed a previous motion for taxation, which she had withdrawn - The court considered it appropriate to revive nunc pro tunc the withdrawn motion for taxation and proceed as if the motion was before the court throughout - See paragraphs 40 to 45.

Barristers and Solicitors - Topic 3047

Compensation - Agreements - General - Interpretation - A contingency fee agreement stated that if settlement was "effected before the Pre-Trial Conference has been completed" the contingency fee rate would be 20 percent - It also stated that if "the case proceeds beyond the Pre-Trial Conference" then the rate would be 25 percent - The respondent lawyers argued that since the matter was not concluded at the first pre-trial conference, settlement was not effected before the pre-trial conference had been completed - The Saskatchewan Court of Queen's Bench rejected the argument - A pre-trial conference was a stage in the litigation proceedings - In this case, the first pre-trial conference had been completed, but the pre-trial conference stage was still extant until such time as trial dates were assigned - Further, any ambiguity in a lawyer-drawn fee agreement was to be resolved in favour of the client - See paragraphs 46 to 47.

Barristers and Solicitors - Topic 3130

Compensation - Agreements - Contingent fees - Review and approval - [See Barristers and Solicitors - Topic 3044 ].

Barristers and Solicitors - Topic 3135

Compensation - Agreements - Contingent fees - Calculation of - The applicant applied pursuant to s. 64(3) of the Legal Profession Act for a review of a contingency fee agreement which she entered into with the respondent lawyers in order to have them pursue a personal injury claim on her behalf - The applicants' claim had been settled for $450,000 - The applicant argued that she should be able to set off a $29,462.65 Saskatchewan Hospital Disability Plan claim against the respondents' fee, because her lawyer did not bargain for payment of that amount separately at the settlement conference, nor did he advise her that he had been retained to recover that amount - The Saskatchewan Court of Queen's Bench held that the contingency fee should not have been charged on the full amount of the settlement of $450,000, but rather it should have been charged on $420,537.35 - However, the disability insurer's claim for $29,462.65 could not be taken into account as a set-off against the respondents' fee - The amount that the subrogee was entitled to recover from the applicant, and the liability for payment of the same, was to be determined in an action brought by the disability insurer to recover that amount - See paragraphs 47 to 48.

Barristers and Solicitors - Topic 3137

Compensation - Agreements - Contingent fees - Duty to client - [See Barristers and Solicitors - Topic 3044 ].

Barristers and Solicitors - Topic 3413

Compensation - Particular matters - Personal injury suits - [See Barristers and Solicitors - Topic 3135 ].

Cases Noticed:

Speers v. Hagemeister (1974), 52 D.L.R.(3d) 109 (Sask. C.A.), refd to. [para. 3].

Kapoor, Selnes & Associates, Re (1984), 36 Sask.R. 280 (Q.B.), refd to. [para. 44].

Gokavi v. Lojek, Jones & Co., [1986] 5 W.W.R. 75; 49 Sask.R. 82 (Q.B.), refd to. [para. 44].

McDonald Crawford v. Morrow, [2004] 11 W.W.R. 335; 348 A.R. 118; 321 W.A.C. 118; 244 D.L.R.(4th) 144; 2004 ABCA 150, refd to. [para. 44].

Statutes Noticed:

Legal Profession Act, S.S. 1990-91, c. L-10.1, sect. 64 [para. 24].

Authors and Works Noticed:

Law Society of Saskatchewan, Code of Professional Conduct, c. 11 [para. 28].

Counsel:

Patricia Zipchen, applicant, on her own behalf;

Robert G. Kennedy, Q.C., for the respondents.

This application was heard before Laing, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Saskatoon, who delivered the following decision on May 10, 2005.