Top 5 Civil Appeals From The Court Of Appeal (December 2015)

1. Evans Sweeny Bordin LLP v. Zawadzki, 2015 ONCA 756 (Gillese, Lauwers and Brown JJ.A.), November 9, 2015

2. Catanzaro v. Kellogg's Canada Inc., 2015 ONCA 779 (Cronk, Epstein and Huscroft JJ.A.), November 16, 2015

3. Hoang v. Vicentini, 2015 ONCA 780 (Laskin J.A. (In Chambers)), November 16, 2015

4. Forsythe v. Westfall, 2015 ONCA 810 (Gillese, Blair, MacFarland, Pepall and Benotto JJ.A.), November 24, 2015

5. Midwest Properties Ltd. v. Thordarson, 2015 ONCA 819 (Feldman, Hourigan and Benotto JJ.A.), November 27, 2015

1. Evans Sweeny Bordin LLP v. Zawadzki, 2015 ONCA 756 (Gillese, Lauwers and Brown JJ.A.), November 9, 2015 In this decision, the Court of Appeal considered the enforceability of a contingency fee agreement. While most think of contingency fee agreements in the personal injury context, the agreement under review in this appeal arose in the commercial litigation context. The Court was unsympathetic to a client who tried to wiggle out of paying a large bonus after his law firm achieved the excellent result that they had agreed would trigger a bonus. The appellants, the owners and developers of lands in Fort Erie, and the respondent lawyers entered into an agreement whereby the appellants agreed to pay the respondents a bonus of $500,000 if their appeal from a final order of foreclosure over their lands was granted. Their appeal was successful, and the law firm rendered an account for the bonus. The appellants obtained an order to assess the account, along with two other accounts, before an assessment officer, who held that the contingency fee agreement was not fair or reasonable. The legal account of the respondents was reduced by nearly forty-five thousand dollars and the bonus was disallowed completely. On competing motions to oppose confirmation of the assessment officer's report, the motion judge dismissed the appellants' motion to further reduce the amount payable and granted the respondents' claim to the bonus. He found that the assessment officer lacked the jurisdiction to consider the fairness and reasonableness of the contingency fee agreement and held that, in any event, he would have set aside the assessment officer's conclusion that the agreement was not fair and reasonable. On appeal to the Court of Appeal, the appellants sought a restoration of the decision of the assessment officer or, in the alternative, an order directing the assessment of the agreement before a judge of the Superior Court of Justice. Writing for the Court of Appeal, Brown J.A. held that the motion judge correctly applied the principles in Cookish v. Paul Lee Associates Professional Corporation, 2013 ONCA 278, to conclude that the assessment officer lacked jurisdiction to consider the enforceability of the agreement. In that case, the Court considered the jurisdiction of assessment officers, who are not Masters, to consider issues relating to contingency fee agreements, and held that issues involving the enforceability of contingency fee agreements – including whether they are fair and reasonable – should be resolved by judges, not by assessment officers. While a judge can refer issues to an assessment officer for determination pursuant to the reference procedure in Rule 54 of the Rules of Civil Procedure, 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 agreement. Moreover, where a judge does order a reference to an assessment officer, the assessment order must contain clear language of delegation. An assessment order which simply refers a bill to an assessment officer for assessment is insufficient to vest in the officer jurisdiction to determine disputes arising under a contingency fee agreement. In this case, the assessment order did not refer to the assessment officer any questions about enforceability of the agreement. The motion judge therefore correctly concluded that the assessment officer lacked jurisdiction to determine whether the agreement was fair and reasonable. The appellants submitted that if the assessment officer lacked jurisdiction to consider the fairness and reasonableness of the contingency fee agreement, the motion judge should have referred those issues to another judge of the Superior Court of Justice for an assessment hearing. They asserted that the motion judge should not have engaged in his own consideration of the agreement because he lacked an adequate record on which to determine its fairness and reasonableness. They further argued that in considering the agreement, the motion judge failed to accord proper deference to the assessment officer's findings. Brown J.A. also rejected these submissions, noting that, unlike the assessment officer, the motion judge did have jurisdiction to consider the fairness and reasonableness of the contingency fee agreement. Rule 54.09(5) of the Rules of Civil Procedure provides that a judge hearing a motion to oppose confirmation of a report "may confirm the report in whole or in part or make such other order as is just." Moreover, pursuant to Bales Beall LLP v. Fingrut, 2012 ONSC 4991, if a judge hearing a motion to oppose finds that an assessment officer committed an error in principle, the judge may either correct the error or refer the matter back for correction. Having concluded that the assessment officer lacked the jurisdiction to consider the fairness and reasonableness of the contingency fee agreement, the motion judge was entitled to consider that issue. In Brown J.A.'s view, the record before the motion judge enabled him to exercise that jurisdiction and fairly consider the enforceability of the agreement. The parties agreed that each could file whatever evidence it considered relevant, and the appellants knew that the issue of the fairness and reasonableness of the agreement would be argued on the motion. The motion judge was therefore presented with and able to review all pertinent documentation concerning the negotiation and execution of the agreement. Brown J.A. rejected the appellants' submission that the motion judge failed to give proper deference to the assessment officer's findings about the circumstances that gave rise to the agreement, pointing out that without jurisdiction to consider the fairness and reasonableness of the agreement, the assessment officer's findings on that issue were not entitled to any deference. Brown J.A. observed that, in any event, the motion judge did give extensive consideration to the assessment officer's findings and provided detailed reasons why the assessment officer's criticisms of the solicitors' work arose from palpable and overriding errors of fact. Brown J.A. noted that the motion judge considered the fairness of the agreement as of the date it was entered into, reviewing the documents recording the parties' negotiation of the agreement, the agreement itself...