interim accounts but ran out of money
and advised the solicitor of their financial
concerns. The solicitor assured them that
they would be given time to pay their
accounts and that he would not abandon
them. The clients were not ready for trial
because their expert would not provide an
opinion on remediation costs without
demolishing parts of the house, which the
clients could not afford. The solicitor
encouraged the clients to accept a partial
settlement for $175,000 towards remediation costs. The clients were at first resistant, but then agreed. The solicitor then
sent the clients a letter advising that he
would withdraw as counsel if they did not
pay the accounts within 30 day. When the
clients did not pay, the solicitor withdrew,
leaving the clients to oversee the settlement. The remediation work was so
poorly performed that the clients felt the
partial settlement was a waste of potential recovery. The clients argued that all
accounts should be set aside because the
solicitor did not complete his contract
with them. The solicitor argued that there
was no formal retainer and that he never
agreed to see the case to its conclusion.
HELD: Application allowed in part.
The clients clearly expected the solicitor
to represent them until the conclusion of
their litigation and the letter provided
after the initial meeting constituted a
formal retainer. The estimate provided
created expectations for the clients so the
solicitor should have notified them when
the fees neared that amount and should
have asked them for authorization to
proceed. The fees for discovery were
three times the estimate and the clients
were given no warning. The clients
expressed financial concerns but agreed
to continue with the retainer and to keep
trying to pay. The solicitor provided
assurance that he would not abandon the
clients yet he did just that. The retainer
was the entire contract and contained no
payment terms, other than the hourly
rate. As such, the solicitor was not
entitled to demand payment of interim
accounts. The clients had a legal right to
withhold payment until the matter was
completed. The solicitor wrongfully
withdrew his services in July 2010, making all work performed in 2010 of questionable value, particularly since the clients were pressured to accept a partial
settlement, and were then abandoned.
The solicitor was entitled to monies
already paid and to payment for work
prior to 2010. However, all accounts after
January 1, 2010 were disallowed. The
accounts were reduced by $46,361. As
the accounts were reduced by 75 per cent,
the clients were entitled to costs.
Thompson Valley Law Corp. (c.o.b.
Burke Frame) v. Childs, [2012] B.C.J.
No. 23, British Columbia Supreme
Court, Master B.M. Young (as Registrar), January 10, 2012.
$415,000. The plaintiffs took the position that Zhou negligently misrepresented the assessed value of the condominium at $216,000 when it had been
re-assessed at $83,700. They further
submitted that Zhou failed to disclose
the existence of an engineering report.
Finally, the plaintiffs took the position
that the condominium was only worth
$50,000 when they purchased it. Zhou
took the position that she made no misrepresentations. Zhou further submitted
that the condominium was worth
$154,000 or that the vendors would not
have sold it for less than that amount.
HELD: Action dismissed. A reasonable and prudent realtor would have
confirmed the condominium’s assessed
value, which Zhou failed to do. Zhou also
failed to meet the standard of a reasonably prudent agent when she failed to
obtain and provide a copy of the engineering report. Therefore, she was negligent in her conduct. While the appropriate fair market value of the condominium
was in the range of $80,000 to $90,000,
the evidence established that the vendors
would not have sold for less than
$154,000. As a result, the plaintiffs failed
to establish that they had suffered any
damages.
Li v. Ouyang, [2012] B.C.J. No. 66,
British Columbia Supreme Court, R.E.
Powers J., January 16, 2012.
The Court of Appeal held that there was
no potential confusion in the naming of
the person subject to the injunction and
that the evidence proved that Moore
knew he was bound by the order regardless of his trade name. The Board submitted that Moore’s infractions were serious, that his contempt was deliberate
and showed a total disregard for worker
safety. Moore apologized to the court for
his breach of the order. He said his
actions would not be repeated, and that
he had not worked for several months
because of medical problems. He suggested that he be sentenced to community service.
HELD: Moore was sentenced to 60
days’ imprisonment. He deliberately
flaunted for an extended time a court
order intended to protect worker safety.
Moore put in danger the lives and safety
of others and continued to do so in the
face of a court order. Others had to know
that they could not ignore injunctions
obtained to protect worker safety with
impunity. Moore’s contempt was serious.
His indifference to the lives and safety of
his workers and his open defiance of the
injunction could not go unpunished and
required a severe response. Deterrence,
both general and specific, and protection
of the public were important sentencing
considerations. Moore’s efforts at
rehabilitation, his apology, and the fact
that there was no evidence that he was
continuing to conduct business in breach
of the injunction were mitigating factors.
Classifieds
WORKPLACE
HEALTH, SAFETY
& COMPENSATION LAW
WWW.ANGERHELP.CA
Julie Freedman, MSW, RSW, over
10 years experience providing
court approved counselling for:
Anger Management, Substance
Abuse, Partner Assault
juliefreedman@bell.net
416-901-4600
BRIGHT, SPACIOUS OFFICES
FOR LEASE
SMALL LITIGATION BOUTIQUE
A RARE STARTUP
OPPORTUNITY
DUNDAS & UNIVERSITY
FIRM HWY 400 & STEELES
seeking lawyer to join its team.
The position focuses on a broad
variety of Commercial Litigation
matters. The ideal candidate has
1 to 3 years of post-call experience.
Please send resumes to
mattisano@westonlaw.ca.
Interested in starting up your own
practice in family and/or personal
injury law? I am a Sole Practitioner
with offices located in Mississauga
and Burlington. In addition to
referrals, I am willing to provide
free office space, computer with all
software, use of phone, fax,
photocopier etc. in exchange for
percentage of billings. Recent
grads encouraged. Please email
gord@ggmohan.com
TORONTO
3 furnished offices available at
King and Yonge. For further details
please call Joan 416-642-6455
MISSING HEIRS
Cogan & Associates Inc.
International probate research,
locators of missing heirs. Toll Free:
1-888-779-2208. www.heirtrace.com
WE ARE AN ESTABLISHED 2
PARTNER/ 6 LAWYER
GENERAL FIRM
at Avenue Road and Davenport
looking for a lawyer of
approximately 7 + years
experience who has his/her own
practice ($100,000.00+ billings) to
join us as an associate. We are
open, friendly and good
communicators. We believe we
have the right structure for you to
shape your own practice and help
to formulate the future of our law
firm, including partnership
opportunities, essential support,
flexible remuneration arrangements,
and family law referrals. Please send
your resume in confidence to Gary
Farb at garyfarb@cfflaw.com or
send your resume to him by fax to
416-324-4223.
REAL PROPERTY LAW
REAL ESTATE AGENTS AND
BROKERS – Liability.
Action by the plaintiffs for damages
for negligent misrepresentation. The
plaintiffs purchased a condominium for
which the defendant Zhou was the listing
realtor. The plaintiffs were aware that the
condominium had water ingress problems. They purchased the condominium
for $154,000, paid an assessment of
$92,000 for repairs, and then sold it for
WORKPLACE HEALTH AND
SAFETY – Unsafe working conditions
– Hazardous substances – Offences
and enforcement.
Sentencing of Moore following a finding that he was guilty of contempt of
court. Moore ran an asbestos abatement
and drywall removal business under the
name AM Environmental. Among the
services he offered was removal of drywall from buildings slated for demolition. As a result of Moore’s operations,
numerous employees were repeatedly
exposed to asbestos. On August 26, 2010,
the Workers’ Compensation Board
obtained an injunction restraining Moore
from doing business in the asbestos
abatement business and the demolition
or drywall removal business and from
providing any hazardous material inspections, surveys or reports until further
order. Moore was personally served with
the order on September 2, 2010. After he
was served, Moore continued to operate
in the demolition business under various
trade names. There was evidence that
Moore was hired by two individuals to do
demolition work, and evidence from an
employee that Moore worked on 15 to 16
sites following service of the order. The
Board brought contempt proceedings
when Moore continued to do business in
violation of the order. The application
judge found all the facts necessary for
committal. However, she refused the
application on the grounds that the reference to Moore “doing business as AM
Environmental” created an ambiguity
and, accordingly, she could not find him
guilty beyond a reasonable doubt. The
Board appealed, and the Court of Appeal
found Moore guilty of contempt of court
and remitted the matter for sentencing.
TWO MAN LAW FIRM
established 40 years in smaller
town in GTA wish to retire. Focus
on Wills & Estates, Real Estate,
Business & Family Law. Transition
terms negotiable. Please respond
to LexisNexis Canada Inc., Box
No. 2197, 123 Commerce Valley
Drive E, Markham, On L3T 7W8
LITIGATION ASSOCIATE
Zuber & Company, is a boutique
law firm specializing in insurance
defense. We are growing rapidly
and are currently seeking an
associate lawyer. The ideal
candidate has at least two years of
experience, preferably in insurance
defense and is confident,
possesses excellent
communication skills and takes
pride in exceeding expectations.
We offer competitive compensation
and benefits, a fast paced and
collegial atmosphere and an
opportunity to develop your skills
and career working with a team of
professionals who are dedicated
to achieving results for their
clients. Qualified candidates
should submit their resume in
confidence to the attention of:
Mary Kent Office Manager
mkent@zubco.com
RE: ESTATE OF JOHN ROBERT
MACKINNON, Deceased
Anyone having knowledge of a Will
of the late JOHN ROBERT
MACKINNION, of Barrie, Ontario,
who died on or about January 08,
2012, is requested to contact
Deanna L. Huclack, Barrister and
Solicitor LLB, Unit 3- 2 Holland
Drive, Unit 3, Bolton Ontario,
L7E 1E1, Tel: 905-951-1714 or
Fax: 905-951-9314, or email:
dhuclack@bellnet.ca
