Her Majesty, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows:

Enactment of Schedules

   1. Schedules A, B and C to this Act are hereby enacted.

Commencement

   2. (1) Subject to subsections (2) and (3), this Act comes into force on the day it receives Royal Assent.

Schedules

   (2) Schedules A, B and C to this Act come into force as provided in the commencement section at or near the end of each Schedule.

Different dates for same Schedule

   (3) If a Schedule to this Act or any portion of a Schedule to this Act provides that it is to come into force on a day to be named by proclamation of the Lieutenant Governor, the proclamation may apply to the whole or any portion of the Schedule, and proclamations may be issued at different times as to any portion of the Schedule.

Short title

   3. The short title of this Act is the Justice Statute Law Amendment Act, 2002.

SCHEDULE A
AMENDMENTS TO SOLICITORS ACT (CONTINGENCY FEE AGREEMENTS)

    1. Section 15 of the Solicitors Act is amended by adding the following definition:
"contingency fee agreement" means an agreement referred to in section 28.1; ("entente sur des honoraires conditionnels")

2. Subsection 16 (2) of the Act is repealed and the following substituted:
Definition
   (2) For purposes of this section and sections 20 to 32,
"agreement" includes a contingency fee agreement. ("entente")

    3. The Act is amended by adding the following section:
Awards of costs in contingency fee agreements
    20.1 (1) In calculating the amount of costs for the purposes of making an award of costs, a court shall not reduce the amount of costs only because the client's solicitor is being compensated in accordance with a contingency fee agreement.

Same
   (2) Despite subsection 20 (2), even if an order for the payment of costs is more than the amount payable by the client to the client's own solicitor under a contingency fee agreement, a client may recover the full amount under an order for the payment of costs if the client is to use the payment of costs to pay his, her or its solicitor.

Same    (3) If the client recovers the full amount under an order for the payment of costs under subsection (2), the client is only required to pay costs to his, her or its solicitor and not the amount payable under the contingency fee agreement, unless the contingency fee agreement is one that has been approved by a court under subsection 28.1 (8) and provides otherwise.

    4. Section 28 of the Act is repealed and the following substituted:
Purchase of interest prohibited
    28. A solicitor shall not enter into an agreement by which the solicitor purchases all or part of a client's interest in the action or other contentious proceeding that the solicitor is to bring or maintain on the client's behalf.

Contingency fee agreements
    28.1 (1) A solicitor may enter into a contingency fee agreement with a client in accordance with this section.

Remuneration dependant on success
   (2) A solicitor may enter into a contingency fee agreement that provides that the remuneration paid to the solicitor for the legal services provided to or on behalf of the client is contingent, in whole or in part, on the successful disposition or completion of the matter in respect of which services are provided.

No contingency fees in certain matters
   (3) A solicitor shall not enter into a contingency fee agreement if the solicitor is retained in respect of,
(a) a proceeding under the Criminal Code (Canada) or any other criminal or quasi-criminal proceeding; or
(b) a family law matter.

Written agreement
   (4) A contingency fee agreement shall be in writing.

Maximum amount of contingency fee
   (5) If a contingency fee agreement involves a percentage of the amount or of the value of the property recovered in an action or proceeding, the amount to be paid to the solicitor shall not be more than the maximum percentage, if any, prescribed by regulation of the amount or of the value of the property recovered in the action or proceeding, how ever the amount or property is recovered.

Greater maximum amount where approved
   (6) Despite subsection (5), a solicitor may enter into a contingency fee agreement where the amount paid to the solicitor is more than the maximum percentage prescribed by regulation of the amount or of the value of the property recovered in the action or proceeding, if, upon joint application of the solicitor and his or her client whose application is to be brought within 90 days after the agreement is executed, the agreement is approved by the Superior Court of Justice.

Factors to be considered in application
   (7) In determining whether to grant an application under subsection (6), the court shall consider the nature and complexity of the action or proceeding and the expense or risk involved in it and may consider such other factors as the court considers relevant.

Agreement not to include costs except with leave
   (8) A contingency fee agreement shall not include in the fee payable to the solicitor, in addition to the fee payable under the agreement, any amount arising as a result of an award of costs or costs obtained as part of a settlement, unless,
(a) the solicitor and client jointly apply to a judge of the Superior Court of Justice for approval to include the costs or a proportion of the costs in the contingency fee agreement because of exceptional circumstances; and
(b) the judge is satisfied that exceptional circumstances apply and approves the inclusion of the costs or a proportion of them.

Enforceability of greater maximum amount of contingency fee
   (9) A contingency fee agreement that is subject to approval under subsection (6) or (8) is not enforceable unless it is so approved.

Non-application
   (10) Sections 17, 18 and 19 do not apply to contingency fee agreements.

Assessment of contingency fee    (11) For purposes of assessment, if a contingency fee agreement,
(a) is not one to which subsection (6) or (8) applies, the client may apply to the Superior Court of Justice for an assessment of the solicitor's bill within 30 days after its delivery or within one year after its payment; or
(b) is one to which subsection (6) or (8) applies, the client or the solicitor may apply to the Superior Court of Justice for an assessment within the time prescribed by regulation made under this section.

Regulations
   (12) The Lieutenant Governor in Council may make regulations governing contingency fee agreements, including regulations,
(a) governing the maximum percentage of the amount or of the value of the property recovered that may be a contingency fee, including but not limited to,
   (i)setting a scale for the maximum percentage that may be charged for a contingency fee based on factors such as the value of the recovery and the amount of time spent by the solicitor, and
   (ii) differentiating the maximum percentage that may be charged for a contingency fee based on factors such as the type of cause of action and the court in which the action is to be heard and distinguishing between causes of actions of the same type;
(b) governing the maximum amount of remuneration that may be paid to a solicitor pursuant to a contingency fee agreement;
(c) in respect of treatment of costs awarded or obtained where there is a contingency fee agreement;
(d) prescribing standards and requirements for contingency fee agreements, including the form of the agreements and terms that must be included in contingency fee agreements and prohibiting terms from being included in contingency fee agreements;
(e) imposing duties on solicitors who enter into contingency fee agreements;
(f) prescribing the time in which a solicitor or client may apply for an assessment under clause (11) (b);
(g) exempting persons, actions or proceedings or classes of persons, actions or proceedings from this section, a regulation made under this section or any provision in a regulation.

Commencement
   5. This Schedule comes into force on a day to be named by proclamation of the Lieutenant Governor.

Link to Justice Statute Law Amendment Act, 2002 (e-Laws)