The solicitor-and-client relationship in personal injury claims can, at times, be under considerable stress during the lifespan of a civil lawsuit, which is regrettable because often this occurs due to factors outside the control of either. Even worse is when these stresses blead over and extend past the end of the litigation and into the post-settlement phase.
This case illustrates how a second war started, following the end of a first war. Once the first war against the alleged tortfeasor was resolved, the second war started as between the lawyer and the client: in brief, the client was not pleased with the net outcome, and the lawyer became the target. What ensued was an epic battle, and one that surprisingly is still in its infancy despite a lot of procedural wrangling thus far. In this regard, after the settlement:
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- The client initiated an Application to challenge the lawyer’s account for services rendered;
- The lawyer brought a separate Application to have his legal account upheld and paid;
- The lawyer attempted to cross-examine his former client on her supporting material, but this never occurred, leading to a barrage of accusations and threats between the lawyer and the client’s new lawyer: there were heated discussions and threats of lawsuits, including a solicitor-negligence claim against the lawyer, and a defamation claim against the new lawyer. Indeed, a motion to have the new lawyer removed as counsel was also brought – but eventually abandoned;
- The client eventually brought a solicitor-negligence claim against the lawyer, rendering her initial application moot and withdrawn.
The parties could not agree on how to proceed, and the court’s intervention was required.
The lawyer wanted his Application heard, and he wanted costs for the client’s abandoned Application. The client resisted both. The client argued that that given the breadth of the dispute between her and her former lawyer, it was not proper to adjudicate the solicitor-and-client account in the lawyer’s Application (which would be heard long before her professional negligence claim against the lawyer). The court agreed. The court reasoned that given the allegations of solicitor negligence, the lawyer’s Application would not be the proper forum in light of an established and extant solicitor negligence claim.
The court on its own initiative made a ruling that the lawyer’s Application for fees would be converted into a counterclaim for fees in the client’s solicitor negligence claim. This, the court felt, would be the most efficient way to proceed, and it allowed for everyone to make fulsome submissions and response, on all the intertwining issues.
The court also awarded the lawyer costs in the sum of $30,000.00 against the client relating to the work done to respond to the client’s initial Application brought to challenge the lawyer’s account, which the client eventually abandoned in favour of commencing a solicitor negligence claim that raised the same issues. The court agreed that there was some work done by the lawyer in responding to the client’s initial Application that could be used again, but there was some work done by the lawyer that was simply lost and was wasted time, which the court assessed at $30,000.00.
Looking down at this from a cruising altitude of 32,000 feet, these battle-worn people have been through a war, and they have yet to get past the pleading stage.
Strype Barristers LLP v. Pavlovic, 2022 ONSC 1226
https://www.canlii.org/en/on/onsc/doc/2022/2022onsc1226/2022onsc1226.html