Edwards v Camp Kennebec, 2016 ONSC 2501

In this settlement approval motion, plaintiff counsel’s fees were reduced from $793,500 to $225,000 because the contingency fee agreement was not compliant with the Solicitor’s Act

Released April 14, 2016 | Full Decision [CanLII]

The plaintiff was a brain-injured individual who suffered personal injuries while away at a summer camp owned by the defendant. A settlement was reached and the plaintiff brought a motion for judgment approving the settlement.

Justice Faieta approved the plaintiff’s settlement. However, Justice Faieta also addressed whether the plaintiff’s counsel’s account totalling $793,500, inclusive of taxes and disbursements, should be approved. In determining whether the account should be approved, Justice Faieta considered whether the contingency fee agreement (“CFA”) between the plaintiff and his solicitors was in compliance with section 24 and section 28 of the Solicitor’s Act.

Justice Faieta held that the CFA was not in compliance with section 28 of the Solicitor’s Act (and the regulations made under it) as it did not provide a simple example that showed how the contingency fee was calculated. Additionally, the CFA did not state that the client had been advised that hourly rates may vary among solicitors and that the client could speak with other solicitors to compare rates.

Justice Faieta further concluded that the CFA was not in compliance with the two-part test set out in section 24 of the Solicitor’s Act as it was neither fair nor reasonable between the parties.

Justice Faieta found the CFA was not fair as it was clear that the plaintiff’s litigation guardian did not fully understand that she bore the risk of paying for the disbursements if the claim was unsuccessful. The CFA also did not state that the client had been advised to obtain independent legal advice before signing.

Justice Faieta also found the CFA unreasonable. Plaintiff’s counsel did not keep dockets. Justice Faieta assessed the steps taken on the file and estimated that approximately 150-200 hours were likely spent on the file. Justice Faieta thus concluded that, given the hourly rates of the solicitors on the file, the fees charged were excessive. Justice Faieta also held that the matter was not particularly complex and that the settlement achieved was on the low end of an acceptable outcome.

Justice Faieta reduced counsel’s account from $793,500 to $225,000, inclusive of taxes and disbursements. This was calculated on a quantum meruit basis.

Counsel for the Plaintiff: David Burstein
Counsel for the Defendant: Timothy Alexander

Read the full decision on CanLII
Liane Shepley-Brown
Written by

Liane first joined Oatley Vigmond as a law student and later joined the team as an Associate Lawyer after her call to the bar. She holds a JD from the University of Windsor and an undergraduate degree in Psychology from the University of Guelph.

Liane is committed to representing individuals who have suffered serious personal injuries and to families who have suffered the loss of a loved one. Her practice concentrates on personal injury law, including accident benefits, motor vehicle collisions, medical malpractice, occupiers’ liability, product liability and wrongful death cases.

When Liane isn’t practicing personal injury law, she enjoys working out and spending time with family and friends.