Appeal court orders reassement of law firms' fees in personal injury case

An Ottawa man who battled two of his former law firms in court is celebrating the decision by the Ontario Court of Appeal to have his fee agreements with the firms reassessed.

The ruling in Clatney v. Quinn Thiele Mineault Grodzki LLP stemmed from the settlement of a personal injury claim that Mark Clatney of Ottawa had reached in July 2013 for $800,000.

Clatney had been seriously injured in a crash in March 2008, and pursued a personal injury claim with Bertschi Orth Solicitors and Barristers, before switching to Quinn Thiele Moneault Grodzki LLP.

Justice Gloria Epstein said:

At the heart of the appeal lies the importance of public confidence in the administration of justice and, in that context, the court’s supervisory role over the appropriate compensation for legal services.”

Bertschi Orth handed Clatney a bill of more than $117,000 for its work on the claim, and Quinn Thiele initially told Clatney it was owed more than $305,000.

According to the ruling, Clatney asked for a release of $50,000 from his settlement, but ran into problems after trying to get $50,000 released, and ended up paying Quinn Thiele $210,000 and Bertschi Orth $100,000.

“He noted that his acceptance came in the light of Quinn Thiele’s confirmation that the $50,000 could not be released as a result of the Charging Order and that a failure to accept the $210,000 offer would lead to an assessment hearing with consequent costs and delay,” said the ruling.

Epstein said Clatney was “vulnerable” when he entered into the fee agreements with the firms, and outlined other issues Clatney was facing.

“He was permanently impaired by the brain injury he suffered in the car accident. He was under intense financial pressure. The appellant did not have independent legal advice when such was clearly called for. He expressed his dissatisfaction with the legal services rendered by both firms,” said the ruling. “He terminated his retainer with Bertschi Orth and, when it came to resolving the firms’ fees and disbursements, the appellant expressed his frustration with Quinn Thiele. Finally, at the time the Fee Agreements were entered into, detailed accounts had not been rendered by Quinn Thiele.”

Epstein also noted Quinn Thiele “misled the appellant by providing erroneous legal advice” and “exerted pressure on the appellant to settle.”

“In these circumstances . . . the protection of the appellant’s interests and the public’s confidence in the administration of justice demand that the Fee Agreements be reopened and an assessment be ordered,” said the ruling.

Paul Auerbach, a partner with McNally Gervan LLP who acted for Clatney in the Court of Appeal process, told Legal Feeds he is “pleased” with the ruling.

“The decision reflects a very thorough analysis of the circumstances leading up to the consent order,” he said. “The decision is a clear reaffirmation of the role of the assessment process in maintaining public confidence in lawyers and the legal profession.

“It also makes clear that agreements between lawyers and their clients will be reviewed by the courts where the circumstances require it.”

The appeal court directed that all costs, fees, charges, and disbursements relating to the case be assessed and ordered $10,000 be paid to Clatney for costs of the initial application and $15,000 for the appeal.

Clatney — a corporate account executive who lost in job in 2010 — said “for the past eight years I have faced one of the most difficult experiences of my life.”

“We are gratified by the Court of Appeal’s decision and the assessment process can now get underway. This is all I ever wanted,” he said, in a news release.

Darryl Singer, a litigator with Singer Barristers, who was not involved in the case, said: “It appears that the Thiel firm used the client’s financial desperation to extract a settlement for itself, and the appeal court appears to have felt that it needed to step in and ensure that the client was not deprived of his right to an assessment just because he was in dire need of the money.”

William Hunter, who represented Quinn Thiele, did not have any comment.

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