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On May 18, 2016, Legal Feeds – the official Blog of the Canadian Lawyer and Law Times – quoted Ben Hanuka about a very important new Divisional Court decision (Cozzi v. Heerdegen) relating to lawyers’ fee disputes.
In the case, the court held that in regular non-contingency matters, the much backlogged lawyer-client assessment procedure is not mandatory under the Solicitors Act. The court held that the Small Claims Court has jurisdiction to deal with lawyers’ fee disputes involving regular retainers, and that it is open for parties in such cases to pursue disputes either through an assessment or the Small Claims Court.
The decision reopens the doors to pursue fee collections in the Small Claims Court. Since the 2014 decision in Jane Conte v. Smith, it was widely believed that all legal fees disputes had to be pursued exclusively through the assessment procedure.
The new decision applies a liberal interpretation to poorly drafted sections in the Solicitors Act, to hold that the assessment procedure is only mandatory in contingency retainers.
In the article, Ben commented about the problems that the earlier Jane Conte decision created in how it was interpreted, the merits of the new decision in resolving a set of poorly drafted and ambiguous provisions in the Solicitors Act, and the practical way in which the decision resolved this issue.
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