• FAIR – supporting auto accident victims through advocacy and education
  • FAIR – supporting auto accident victims through advocacy and education
  • FAIR – supporting auto accident victims through advocacy and education
  • FAIR – supporting auto accident victims through advocacy and education

The Laywers

‘FAIR – supporting auto accident victims through advocacy and education’

The information provided below is not legal advice, and it may not apply in every situation. FAIR is not a legal service and we do not recommend particular lawyers or firms. We do not provide legal advice. This page is for information purposes only.

ALERT

We are hearing about more and more cases where the time limitations for filing have lapsed due to a failure by a plaintiff’s legal representative to meet deadlines. Claimants should stay informed of what is happening with their files and forms and ask the questions about filing dates and limitations. Please see some of the decisions and articles listed at the bottom of this page for details

More information on choosing a lawyer or if you have issues with your legal bill here.

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FAIR does not accept responsibility for comments, opinions, statistical information etc. associated with the links listed below. Any opinions, points of view, etc. are not necessarily shared by FAIR.
 

 

 

 

Hodge v. Neinstein

COURT RULES CLASS ACTION CAN PROCEED JUne 26, 2017  https://www.lawtimesnews.com/article/monday-june-26-2017-13461/

Class action approved against Neinstein and Associates LLP Jan 4, 2016  https://www.lawtimesnews.com/article/monday-january-4-2016-12382/

Certification of class action over legal fees rejected  Aug 11, 2014  https://www.lawtimesnews.com/author/yamri-taddese/certification-of-class-action-over-legal-fees-rejected-11398/

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Hodge vNeinstein, 2019 ONSC 439 — 2019-01-16

Superior Court of Justice — Ontario

settlement — class — honorarium — fees — fee

A.     Introduction 

[1]               In 2012, Ms. Hodge commenced a class proceeding pursuant to the Class Proceedings Act, 1992[1] against Gary Neinstein and Neinstein & Associates LLP seeking repayment to Class Members of legal fees and disbursements paid by the Class Members upon the settlement of their motor vehicle personal injury claims. She alleged that Mr. Neinstein and the law firm had breached the Solicitors Act[2] and their fiduciary duties because they charged an amount for costs in addition to a percentage fee under a contingency fee retainer agreement. She further alleged that the lawyers charged excessive or inappropriate disbursements and interest on the disbursements. In September 2018, after six years of litigation and after nine months of negotiations, including three days of mediation before the Honourable Warren K. Winkler, Q.C., the parties reached a settlement. This is a motion for court approval of the settlement and also for court approval of Class Counsel’s request for legal fees and for an honorarium for Ms. Hodge.

B.     Facts

1.      The Class Action Proceedings

[2]               In 2012, Ms. Hodge commenced a class proceeding against Gary Neinstein and Neinstein & Associates LLP seeking repayment to Class Members of legal fees and disbursements paid by the Class Members upon the settlement of their motor vehicle personal injury claims. She alleged that Mr. Neinstein and the law firm had breached the Solicitors Act and their fiduciary duties because they charged an amount for costs in addition to a percentage fee pursuant to a contingency fee retainer agreement. She further alleged that the lawyers had charged excessive or inappropriate disbursements and interest on the disbursements.

[3]               To pursue the proposed class proceeding, Ms. Hodge retained Class Counsel pursuant to a Contingency Fee Retainer Agreement that provided a contingency fee percentage of 33.3% of all amounts recovered for the Class Members or in the alternative at Class Counsel’s option, a multiple of up to 9 of the lawyers’ hourly rates expended on the case.

[4]               Mr. Neinstein and the lawyers of the law firm denied the allegations and opposed the certification of the action. They maintained that the question of whether or not fees charged in each particular client’s case was improper could be determined only on an individual basis following a review of solicitor-client privileged information, which would make a class action unmanageable.

[5]               There were three contested motions prior to certification: an abandoned third-party funding motion, an omnibus motion by the Applicant addressing a number of discovery-related and other matters,[3] and an extensive refusals motion.

[6]               In July 2014, I heard the certification motion. I refused to certify the proceeding. I concluded that it failed to satisfy the commonality and preferable procedure criteria for certification.[4] I concluded that the critical question raised in the case of whether the fees charged to a particular client contravened the Solicitors Act required an investigation from beginning to end of a lawyer and client relationship, between the individuals that formed that relationship and that assessments under the Solicitors Act were available and a preferable way to determine whether the fees in each case were fair and reasonable.

[7]               My decision was reversed by the Divisional Court, and it certified the proceeding.[5] Subject to deleting one common issue, the Court of Appeal affirmed the Divisional Court’s decision.[6] The Supreme Court of Canada dismissed a motion for leave to appeal from the Court of Appeal’s decision on December 7, 2017.[7]

[8]               The certified class includes clients of the law firm dating back almost 15 years. The class definition is as follows:

A client of Neinstein & Associates LLP or Gary Neinstein Q.C. that:

(a) signed or amended a contingency fee agreement or arrangement after October 1, 2004, and

(b) who has paid before December 9, 2015, being the date of certification, the respondents for their legal services on the completion of the matter in respect for which services were provided,

(c) except a client:

(i) for whom the court has approved the respondents’ fee;

(ii) for whom the court has assessed the respondents’ account; or

(iii) that have signed a release or settled any claim with respect to his or her contingency fee agreement or arrangement.

[9]               On March 2, 2018, Mr. Neinstein and the law firm served a Statement of Defence and Counterclaim to the Amended Amended Notice of Application. They advanced several substantive defences including:

  1.   that the Solicitors Act provides a complete code which bars the claims;
  2.   that Class Members cannot bring an independent cause of action for statutory breach;
  3.   that the Limitations Act, 2002 bars a majority of claims;
  4.   that in the alternative, there is no breach of the Solicitors Act as the fees charged were fair and reasonable;
  5.   that the aggregate fees charged between tort and accident benefits typically do not exceed the percentage fee in the Retainer Agreement and therefore there was no breach; and,
  6.     that disgorgement of fees is not an appropriate or available remedy on a class wide basis.

[10]           Mr. Neinsten and the law firm advanced a counterclaim that included a claim for payment of fees on a quantum meruit basis.

[11]           The merits of the Class Members’ claims remain to be resolved. A significant risk factor for Class Members is that if the litigation proceeds, the need for individual assessments will substantially delay recovery. Neinstein and his law firm submitted that the ultimate issue is whether the amount of compensation they received was fair and reasonable in light of the work they performed for each client in the circumstances of each individual.

[12]           The litigation was complex and it involved novel points of law, including the unresolved issues of whether breaches of sections 28.1(8), 28.1(9) and33 of the Solicitors Act could be pursued by way of a class action and whether disgorgement of overcharged legal fees and disbursements was a viable remedy. There was considerable litigation risk.

[13]           For fees, Class Counsel has expended approximately $1.3 million in lawyers’ time inclusive of HST but exclusive of time for preparation of the approval of the settlement motion and exclusive of the anticipated time to implement the settlement. To date, Class Counsel has received $361,702.98 inclusive of HST in partial indemnity costs from the interlocutory orders and appeals.

[14]           Ms. Hodge has been active participant throughout these proceedings. She attended most hearings at each level of court, reviewed most of the court filings with Class Counsel and attended the two-day mediation. She has been cross-examined at length during the proceedings. Ms. Hodge’s participation in the proceeding has involved extensive travel. Over the course of the proceeding, Ms. Hodge made many trips from her home in Brooklin, Ontario to meet with Class Counsel in Toronto. Each round-trip commute was over 135 km and took 3 hours or more.

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  • 2.
    Hodge vNeinstein, 2017 ONCA 494 — 2017-06-15
    Court of Appeal for Ontario — Ontario
    common — class members — solicitor-client privilege — contingency fee — certification
     
  • 3.
    Hodge v Neinstein2015 ONSC 7345 — 2015-12-09
    Divisional Court — Ontario
    contingency fee agreement — class — unenforceable — fees — motion
     
  • 4.
    Hodge vNeinstein2014 ONSC 6366 — 2014-11-04
    Superior Court of Justice — Ontario
    certification motion — contingency fee — costs — class proceeding — access to justice
     
  • 5.
    Hodge vNeinstein2014 ONSC 4503 — 2014-07-29
    Superior Court of Justice — Ontario
    contingency fee agreement — client — solicitor — class proceeding — disbursements
     
  • 6.
    Hodge vNeinstein2014 ONSC 1723 — 2014-03-18
    Superior Court of Justice — Ontario
    costs — indemnity — omnibus motion — docketed — refused this request sought
     
  • 7.
    Hodge vNeinstein2014 ONSC 706 — 2014-01-30
    Superior Court of Justice — Ontario
    certification — refusals — motion — cross-examination — oppose
     
  • 8.
    Hodge vNeinstein2012 ONSC 7181 — 2012-12-18
    Superior Court of Justice — Ontario
    motion — third-party funder — third party funding — abandoned — costs

Comments are closed.

Law Society of Ontario v. Kerr

Andrew Robert Kerr Status – Suspended

https://lso.ca/public-resources/finding-a-lawyer-or-paralegal/directory-search/members/lawyer/025/andrew-robert-kerr#historyContent

Conduct Proceeding – May 17, 2018

Andrew Robert Kerr (the Respondent), was found to have committed professional misconduct on the following established allegations: (1) With respect to four Law Society investigations, the Respondent failed to reply promptly and completely to 11 Law Society communications, over a period of almost 12 months, contrary to s. 49.3(2) of the Law Society Act and Rule 7.1-1 of the Rules of Professional Conduct. On May 17, 2018, the Law Society Tribunal – Hearing Division ordered that: (1) The Respondent’s licence to practise law shall be suspended for one month, effective May 22, 2018, and shall continue to be suspended indefinitely thereafter until, to the satisfaction of the Executive Director, Professional Regulation of the Law Society or her designate (the “Executive Director”), he has provided a complete response to the Law Society requests dated May 3, 2017 and May 4, 2017 in relation to the four following Law Society investigations: Case No. 2016-200275; Case No. 2017-204157; Case No. 2017-206039; and Case No. 2017-208003. (2) While suspended pursuant to this order, the Respondent shall comply fully with the terms of the Law Society’s Guidelines for Lawyers Who Are Suspended or Who Have Given An Undertaking Not to Practise. (3) The Respondent shall pay costs to the Law Society in the amount of $4,000 on or before the deadline of May 4, 2019. Starting the day following the deadline for the payment of costs, interest shall accrue on any unpaid part of those costs at a rate of 3% per year.

Appeal – June 18, 2018

By Notice of Appeal to the Law Society Tribunal – Appeal Division, dated June 18, 2018, Andrew Robert Kerr (the Appellant) appealed the Order of the Law Society Tribunal – Hearing Division, dated May 17, 2018.

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Law Society of Ontario v. Kerr, 2018 ONLSTH 139 (CanLII), <http://canlii.ca/t/hvht1

Summary:

KERR – Procedure – Adjournments – The Lawyer’s adjournment request was granted so that he could file a medical report, which he submitted would support his argument that his disability was a relevant factor with respect to any finding of misconduct or any potential penalty.

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Law Society of Ontario v. Kerr, 2018 ONLSTH 65 (CanLII), <http://canlii.ca/t/hs3bb

Summary:

KERR – Failure to Co-operate – The Lawyer failed to reply promptly and completely to the Society’s inquiries in relation to four investigations, over a period of almost 12 months – He admitted his misconduct and he had no prior disciplinary record – The Lawyer described a series of staff disruptions and personal misfortunes, but there was no evidence from a health care practitioner about the medical condition he reported – In any event, during the period of his non-compliance, he was able to continue practising successfully – The Lawyer’s licence was suspended for one month, continuing indefinitely until he has provided a complete response to the Society’s requests regarding the four investigations.

REASONS FOR DECISION

OVERVIEW

[1]           Raj Anand:– The Law Society alleged that Mr. Kerr (the respondent) failed to reply promptly and completely to its inquiries in relation to four of its investigations. Its evidence was contained in an affidavit of the Law Society’s investigator, which was admitted on consent. I made a finding of professional misconduct, which the respondent did not oppose, and I indicated that short written reasons would follow.

[2]           Proceeding to penalty, Mr. Kerr testified and submitted additional evidence. Duty counsel submitted that the penalty should be a reprimand with conditions, while the Law Society asked for a one-month suspension. After argument, I reserved my decision.

[3]           After considering the matter further, I order a one-month suspension, together with the agreed to amount of $4,000 in costs. These are my reasons.

PROFESSIONAL MISCONDUCT

[4]           The affidavit evidence showed that over a period from May 3 to October 18, 2017, the investigator requested Mr. Kerr’s responses to the Law Society’s inquiries in order to proceed with five investigations. She received a response in one investigation on October 25, 2017, and none in the other four. During this period, the investigator wrote three letters and exchanged nine phone calls or messages with the respondent. The Law Society gave Mr. Kerr about six time extensions for response between May and October 2017.

[5]           Based on this evidence, I made a finding of professional misconduct relating to the respondent’s failure to submit a full and timely response to the Law Society’s inquiries.

_______________________________

NOTICE OF APPLICATION – CONDUCT https://lawsocietytribunal.ca/Current%20Proceedings/Kerr18H-084NOA.pdf

_______________________________

16-002815 v The Personal Insurance Company of Canada, 2017 CanLII 56677 (ON LAT), <http://canlii.ca/t/h5pwq

[17]     The respondent contends the medical note provided by applicant’s counsel was insufficient as it failed to provide a medical opinion to explain why counsel could not make a phone call or email the Tribunal, or give instructions to an assistant to explain he was having medical issues and request an adjournment.  The respondent argues that despite illness it was unreasonable for counsel to fail to advise the Tribunal and/or request an extension until 26 days after the first deadline was missed. 

[18]      The respondent quoted LAT decision B.F. v. Wawanesa Mutual Insurance Company2017 CanLII 9821 (ON LAT) as authority.  In this case, the Adjudicator awarded costs against the respondent for failing to comply with the Tribunal’s production orders twice and for not providing a reasonable explanation until a request had been made for costs.  The Adjudicator found the representative’s conduct was unreasonable as it was disrespectful of the Tribunal’s process and interfered with the Tribunal’s ability to run an efficient hearing. 

[19]      Applicant’s counsel submits that the nature of his illness has impeded his ability to comply with the Tribunal’s orders.  Applicant’s counsel argues that the intention of the legislation is that an award of costs be granted in extreme circumstances.  He acknowledges missing a number of deadlines and was delayed in notifying the Tribunal. Furthermore, he indicates his illness has been corroborated in the doctor’s note submitted.  Therefore, his actions cannot be defined as unreasonable because his actions were not deliberate or a contemptuous course of action, as the term “unreasonable” suggests.

_________________________________

16-002815 v The Personal Insurance Company of Canada, 2017 CanLII 63664 (ON LAT), <http://canlii.ca/t/h6cfz

[8]        On February 17, 2017, the respondent wrote to the applicant advising that they had not received any submissions in relation to either hearing. 

[9]        On February 23, 2017, the Tribunal contacted the applicant’s representative to inquire about their intention to proceed as they had not filed any submissions. The Tribunal spoke with the representative’s assistant who confirmed an intention to proceed, and left a voicemail for the applicant’s counsel.

[10]      On March 14, 2017, the Tribunal received correspondence from the applicant’s representative indicating that he had not been in touch with the Tribunal due to illness and requesting an extension to file submissions. This letter also enclosed a FSCO Report of Mediator dated June 21, 2016 in relation to the written preliminary hearing that was scheduled for March 2, 2017.  The applicant had   only recently provided this report to the respondent.

[11]      On the same date, the Tribunal received correspondence from the respondent opposing the applicant’s request for an extension to file submissions and opposing acceptance in evidence of the Report of Mediator.  The respondent cited Rule 9.4 of the Tribunal’s Rules of Practice and Procedure which deals with the Tribunal’s discretion to not accept evidence that is in non-compliance with the Tribunal’s Rules and Orders.  In addition, the respondent indicated an intention to formally request an Order for costs for the applicant’s failure to advise the Tribunal of his medical condition in a timely manner and his subsequent request for an extension to file submissions. 

            Adjournment Request

[12]      On March 16, 2017, the day of the scheduled hybrid hearing, a teleconference was held with the parties. The applicant’s representative advised that he was not prepared to proceed with the hearing and asked for an adjournment.  I asked the applicant’s representative why he had failed to request an extension to file submissions or file a proper request for an adjournment.  The applicant’s representative advised that he has had various medical issues and most recently an illness that rendered him completely unable to work.  He indicated that he could provide a doctor’s note confirming same.  I asked that he provide the Tribunal with a medical certificate no later than March 23, 2017.  

[13]      I further inquired about why he did not provide instructions to someone at his office to communicate his health issues to the Tribunal and request an extension and adjournment.  He replied that he is unfamiliar with Tribunal work and got the dates of the written and preliminary hearing mixed up.

[14]      After hearing the parties submissions, I granted the request for an adjournment of the hybrid hearing.  In coming to this decision, I considered the principles of procedural fairness and the disadvantaged position that the applicant would be in if he was forced to proceed in the absence of the ability to file any submissions or evidence.  I reminded the applicant about the Tribunal’s commitment to providing a fair open and accessible process that is also timely.  I also cautioned the applicant about any further delays.  To balance the rights of the respondent, I have given it the opportunity to provide submissions on costs.   Details with respect to the new dates and deadlines for submissions follow in the attached order.

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Personal Injury Lawsuit: Self vs. Lawyer Representation

For a new personal injury client, a lawsuit can seem like a long and involved process. Clients often want a basic explanation of what needs to happen and when they will need to be present for their lawsuit. This article lays out the typical steps in personal injury litigation but of course there can be many twists and turns along the way.

http://otlablog.com/personal-injury-lawsuit-self-vs-lawyer-representation/

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What is a Contingency Fee?

If you have been injured in a collision, the last thing you need is the added burden of trying to find a way to come up with money to hire a lawyer to protect your legal rights and interests. With this reality understood, a considerable number of personal injury lawyers utilize what is known as a contingency fee arrangement.

http://pickinguppieces.net/what-is-a-contingency-fee/

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Law firm that billed itself as ‘official’ Jays’ lawyer never worked for the team

A personal injury law firm that billed itself as the Toronto Blue Jays’ “official” injury lawyers is changing the way it advertises after Ontario’s legal regulator reminded the firm it never worked for the team.

https://www.thestar.com/news/canada/2018/03/26/law-firm-that-billed-itself-as-official-jays-lawyer-never-worked-for-the-team.html

 

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