Focus On

BARRISTERS AND SOLICITORS - Contingency agreements - Statutory provisions - Measure of compensation

Monday, January 11, 2021 @ 9:12 AM  


Lexis Advance® Quicklaw®
Appeal by the client from a review officer’s decision. In 2011, the appellant and the respondent law firm entered into a contingency fee agreement in relation to a patent dispute. In 2016, the respondent informed the appellant it would continue work under the agreement if the appellant would negotiate a settlement but if he wanted to continue carrying on the litigation, they would have to switch to a fee for service retainer. In 2017, the respondent settled with the opposing party, subject to formalization. The appellant was unhappy with attempts to work out the details of the settlement and retained a new law firm. In 2018, the Federal Court found a settlement had been reached. In 2018, the respondent issued an invoice to the appellant for $80,916, which included $77,000 in fees, being 35 per cent of the $220,000 settlement amount. The respondent had time billed equivalent to $138,000. After finding the contingency agreement was defective, the reviewing officer confirmed the respondent’s invoice on the basis the fees and disbursements were reasonable.

HELD: Appeal dismissed. The appellant had the opportunity to put his position before the reviewing officer. While he was caught by surprise by the finding that the contingency agreement was defective, in all the circumstances, the review officer’s denial of his request to provide further materials did not compromise the fairness of the hearing. Consideration of the contingency agreement did not require interpretation of the agreement but rather a factual determination as to whether it contained the requisite particulars in precise and understandable terms. The reviewing officer did not exceed his jurisdiction in determining the agreement did not contain the requisite elements. The appellant’s entitlement to $220,000 was established by the time the retainer ended.

Betser-Zilevitch v. Prowse Chowne LLP, [2020] A.J. No. 1278, Alberta Court of Queen's Bench, J.A. Fagnan J., November 24, 2020. Digest No. TLD-January112021001