[1]            At issue on this appeal is whether solicitors who have allegedly violated the Solicitors Act, R.S.O. 1990, c. S. 15 (the “Act”), are immune from a class proceeding brought on behalf of their former and current clients.

[2]            The appellants, personal injury lawyer Gary Neinstein and his firm Neinstein & Associates LLP (collectively the “Firm”), challenge the Divisional Court’s decision certifying an application, which was brought by representative plaintiff Cassie Hodge against the Firm, under the Class Proceedings Act, 1992, S.O. 1992, c. 6 (the “CPA”).

[3]            The Divisional Court certified 19 common issues. These include common issues relying on a breach of s. 28.1(8) of the Act.  Section 28.1(8) states that a contingency fee agreement (“CFA”) shall not include in the fee payable to the lawyer any amount arising as a result of an award of costs or costs obtained as part of a settlement in addition to a percentage fee unless certain conditions are met. The certified common issues also include whether the Firm charged interest contrary to s. 33 of the Act, and whether that amounted to a breach of contract or breach of fiduciary duty.

[4]            The Firm argues that the application brought by Ms. Hodge, who is a former client of the Firm, should not have been certified as it fails to disclose a cause of action, fundamentally lacks in commonality and fails the preferable procedure requirement. In particular, the Firm argues that ss. 23-25 of the Act preclude the possibility of a class proceeding against the Firm as they form a “complete code” and require individual assessments of client accounts.  The Firm says, even if that is not the case, the solicitor-client privilege of its former and current clients shields the Firm from the class proceeding intended to benefit those former and current clients who signed a CFA with the Firm.  

[5]            Ms. Hodge cross-appeals, arguing that the Divisional Court erred by denying her leave to amend her Amended Notice of Application to plead the tort of conversion and failing to certify further common issues.

[6]            For the following reasons, I would dismiss the appeal and allow the cross- appeal in part. While I would dismiss the appeal, I conclude the Divisional Court erred in certifying one issue (common issue 3) as a common issue and would vary the certification order by deleting that common issue.

a)      The fiduciary duty/costs common issue

[197]    The first additional common issue asks whether the conduct of the Firm – allegedly failing to disclose information required by the Act and the Regulation in its CFAs and taking as part of their fees amounts arising from awards or settlements for costs – breached fiduciary duties to class members.

[198]    As I have said above, I am not satisfied that it is plain and obvious that ss. 23-25 of the Act are a comprehensive code and preclude a claim against a solicitor for breach of fiduciary duty arising out of a CFA.

[199]    However, the Firm again argues that it is plain and obvious that it did not owe a fiduciary duty to class members to include the prescribed language in its CFAs because they were only prospective clients until the agreements were signed. The Firm submits that a lawyer does not owe a fiduciary duty to prospective clients.

[200]    I disagree with how the Firm characterizes this issue. The failure to ensure that the CFAs included the prescribed language is only one aspect of the Firm’s conduct considered in the proposed common issue. The disclosure part of the proposed common issue raises the question of whether the Firm was required to disclose the non-compliance after the class member became a client. In my view, it is not plain and obvious that a claim for breach of fiduciary duty based on the failure to disclose and the taking of costs has no reasonable prospect of success.

[201]    I am also satisfied that there is a common legal issue – whether, as a matter of law, failing to disclose that a CFA signed did not include the prescribed language and the taking of costs contrary to the Act amount to a breach of fiduciary duty. In my view, there is some basis in fact for asking whether the taking of costs contrary to the Act constituted a breach of fiduciary duty by the Firm, such that this is a proper common issue. As I have indicated above, the record on appeal is replete with examples of final accounts showing party-and-party costs payable to the Firm, in addition to a percentage of the award or settlement, and the only evidence of the Firm not taking such costs is that of someone who it appears will opt out of the class proceeding.

[202]    That said, consistent with my reasoning on the “taking issue” above, I agree with the Firm that whether the Firm actually took amounts arising from costs in an award or settlement contrary to the Act should be characterized as an individual issue.