[2017] 2 F.C.R. D-11
Barristers and Solicitors
Solicitor’s lien — Motion pursuant to Federal Courts Rules, SOR/98-106 (Rules), r. 369 requesting that class counsel be awarded solicitor’s lien, charging order against any refund of overpayment of rent for tenants in default of payment of their share of counsel fees, litigation expenses — Fees, expenses at issue arising from class counsel’s representation of class members in class action dispute with defendant regarding increase of rent for class members — Defaulting members (respondents on motion herein) having leasehold interest in Sakimay First Nation reserve land — Unincorporated associations representing interests of cottage owners — Certification Order issued — Court previously providing that counsel, litigation fees be shared equally between lot holders — Defaulting members benefitting from class counsel’s representation — Arguing, inter alia, no direct contractual relationship between class counsel, defaulting class members, therefore no obligation to pay — Plaintiff’s reliance on Rules, r. 425 as source of authority for proposed charging order not sound — Certification Order not constituting “order for the payment of money” as per r. 425 — However, Court may grant solicitor’s lien or charging order by virtue of The Legal Profession Act, 1990, S.S. 1990-91, c. L-10.1, s. 66, Federal Courts Act, R.S.C., 1985, c. F-7, s. 56(1) — Federal Courts Act, s. 56 adopting process of applicable superior court, making that process Federal Court process — Therefore Court may issue same process, orders in respect of payment of solicitor’s fees, expenses in Federal Court matter as would Court of Queen’s Bench in provincial matter — Certification Order confirming solicitor-client relationship between counsel, representative plaintiff — Class counsel owing professional obligations to all members of class — Sufficient nexus to create solicitor-client relationship between respondents, class counsel — Role of unincorporated associations in facilitating administration, assisting representative plaintiff not lessening existence of obligations of class counsel to all class members — Even if solicitor-client relationship with associations, class counsel entitled to payment from respondents who benefitted from his professional services — No good reasons herein for Court not to exercise discretion in favour of plaintiff — Solicitor’s lien arising as inchoate right amenable to enforcement through such mechanisms as charging order, including lien over clients’ file — Trial, judgment on trial concluded — No suggestion that taxation necessary or required, respondents not contending that fees, expenses not proper — Common law requirement for charging order met — Charge on respondents’ leasehold interests not necessary — Court exercising discretion to grant charging order over refunds owing to respondents — Motion granted.
Schnurr v. Canada (T-227-13, 2016 FC 1231, Phelan J., order dated November 3, 2016, 18 pp.)