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BARRISTERS AND SOLICITORS - Solicitor's lien - Statutory charging order

Friday, February 14, 2020 @ 9:41 AM  


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Appeal by the solicitors from the dismissal of their motion for a declaration they had a first charge on the damages awarded to Bosnali in priority to any right of set-off claimed by the Michaud respondents. The appellants were counsel to Bosnali in a seven-week jury trial of Bosnali’s personal injury claim against the Michaud respondents. The jury awarded Bosnali general damages as well as damages for housekeeping and past and future medical expenses. Bosnali refused to accept offers to settle made by the Michaud respondents that were more favourable than the result he achieved at trial. The costs awarded to the Michaud respondents resulted in a net judgment requiring a payment of $11,676 from Bosnali to the Michaud respondents. The motion judge found the appellants’ efforts did not result in the recovery of any property or money.

HELD: Appeal dismissed. The motion judge did not err in concluding there was no property recovered through the instrumentality of the appellants against which a charging order could be made. By its terms, the judgment did not create any debt obligation enforceable by Bosnali against the Michaud respondents. Bosnali could not recover any money under the judgment without first satisfying the countervailing judgment-based claims by the Michaud respondents, who were entitled to assert legal set-off as the debts were mutual as between the parties. The appellants’ right to a charge order was subject to the right of set-off in the same action.  

Bosnali v. Michaud, [2020] O.J. No. 31, Ontario Court of Appeal, D.M. Brown, G. Huscroft and L.B. Roberts JJ.A., January 7, 2020. Digest No. TLD-February102020014