FSRA Encourages Ontario’s Auto Insurers to Explore Further Relief Measures as COVID-19 Continues to Impact Consumers
Statutory Accident Benefits for Car Accident Victims in a COVID-19 World
Canada should abolish the civil jury service
Obtaining the Name of the Person who Doored You
Toronto cop part of organized crime group involved in vicious tow truck wars, chief says
COVID-19 Raises Profile of Virtual Care
What we can learn from chronic pain narratives
[52] The principles governing the granting of a charging order under s. 34(1) were summarized by this court in Weenan v. Biadi, 2018 ONCA 288, 141 O.R. (3d) 276, at paras. 14-15:
• To obtain a charging order on the monies in issue, the onus is on the solicitor to demonstrate that a charging order is warranted;
• The decision is discretionary. In deciding whether to exercise that discretion, the court must “balance the circumstances and equities of each case and client”; and
• To obtain a charging order, the solicitor must demonstrate that:
i. the fund or property is in existence at the time the order is granted;
ii. the property was “recovered or preserved” through the instrumentality of the solicitor; and
iii. there must be some evidence that the client cannot or will not pay the lawyer’s fees.
[53] The appellant asserts that the motion judge erred in concluding that the appellant had not established that his work was instrumental to the recovery or preservation of the property. Repeating the argument he made before the application judge, he contends that he arranged for the ATE Policy and performed the work on Mr. Nguyen’s civil action that led to payment of the policy proceeds.
[54] The application judge rejected these arguments. She found that the appellant “simply sold Mr. Nguyen the ATE Policy” as an insurance intermediary. She agreed with the submission of the PGT that the appellant “should not be rewarded for brokering a contract between Mr. Nguyen and DAS when he knew that Mr. Nguyen had a litigation guardian and was incapable of entering into the contract.” She also found that the ATE Policy proceeds were not the “fruits of the litigation” because “Mr. Nguyen recovered nothing in the litigation and is more indebted after the litigation than before it. Since no property was recovered or preserved in the proceeding, there can be no charging order.”
[55] We see no error in the application judge’s findings or in her exercise of discretion based on the evidence before her.
[56] We also agree with the submission of the PGT in its factum that “the facts of this case are nothing less than shocking”, and that it would offend the principles of fairness and justice to reward the appellant, through the payment of fees and disbursements, for entering into the CFA with Mr. Nguyen, brokering an insurance contract between him and DAS, and having Mr. Nguyen sign a direction to him, when he knew that Mr. Nguyen was incapable of making these decisions and had a litigation guardian from whom the appellant was supposed to take instructions.
D. DISPOSITION
[57] The appeals are dismissed. The appellant is ordered to pay costs of $20,000 to the respondent Mr. Szot and $11,000 to the PGT, inclusive of disbursements and taxes.