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Appendix 3 - Contingency Fees in Canadian Jurisdictions

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 B.C. ALTA. SASK. MAN. QUE. N.B. P.E.I. N.S. NFLD. YUKON N.W.T. LSUC CBA-O
Permitted Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Recom-mended Recom-mended
Legal Authority Legal Profession Act S.B.C. 1987, Chap. 25, s. 78 Alberta Rules of Court r. 613-621 Speers v. Hage-meister (1974), 52 D.L.R. (3d) 109 (Sask. C.A.). Law Society Act, R.S.M. 1987, c. L 100, s. 58 Code of Ethics for Advocats R.R.Q. 1981, c. B-1, r. 1-8, 3.08.01-3.08.08 Judicature Act, R.S.N.B. 1973 Ch. J-2 P.E.I., Rules of Court, r. 57 Nova Scotia Civil Proce-dure Rules, r.63.16-63.21 Rules of Supreme Court, r. 55.15 -55.20 Legal Profes-sion Act, R.S.Y. 1986, chap. 100, s. 68 N.W.T. Rules of Court, R-101-96, r. 657-663 Bill 3, An Act to Amend the Solicitors Act, 1st Sess., 36th Leg., Ontario, 1995 to amend Solicitors Act R.S.O. 1990, C.S. 15, s. 28 amend Solicitors Act R.S.O. 1990, c.S. 15, s. 28
Since when 1979 1969 1975 1890 1968 1973 1977 1972 Formally 1986 1980 Formally 1979 N/A N/A
Pre-Authori-zed Forms Must be in writing; Benchers may make rules re: form of agreement and limits to charges Must be in writing & signed by client or agent No Must be in writing & signed by client or agent No Must be in writing & signed by client or agent Must be in writing & signed by client or agent Must be in writing & signed by client or agent Must be in writing & signed by client or agent Must be in writing & signed by client or agent Must be in writing & signed by client or agent Must be in writing & signed by parties but no specific form; if in writing it's enforce-able; if not lawyer can't render account if client lost & if client wins only on a quantum meruit basis Must be in writing & signed by parties; should be standard form; client must receive copy
Statutory Lists of Manda-tory Contents No Name & address of client(s) & lawyer; nature of claim; statement of the conti-gency & the maximum amount of rate contin-gency not to exceed; notice of right of review No Not in the Act; lawyer must deliver a copy to client with notice of right of review No Name & address of client(s) & lawyer; nature of claim; statement of the contin-gency and the basis of recovery Name & address of client(s) & lawyer; nature of claim; statement of contin-gency, the maximum amount or rate compen-sation not to exceed; notice of right of review Name & address of client(s) & lawyer; nature of claim; statement of contin-gency, the maximum amount or rate compen-sation not to exceed; notice of right of review Name & address of client(s) & lawyer; nature of claim; statement of contin-gency, the maximum amount or rate compen-sation not to exceed; notice of right of review Set out percent-age applied; notice of right of review Name & address of client(s) & lawyer; nature of claim; statement of the contin-gency and the maximum amount or rate compen-sation not to exceed; notice of right to review N/A There should be mandatory terms; percen-tage; notice of right to review, client is respon-sible for costs & disburse-ments
Filing with Courts No Yes, within 15 days of signing but it's confiden-tial to public No No No Yes, but it's confiden-tial to public; court examines it upon filing for fairness & reasona-bleness Yes, within 10 days of signing but it's not a public document Yes, within 10 days of signing but it's not a public document Yes, within 10 days of signing but it's confi-dential to public No Yes, within 15 days of signing but it's not a public document No, but client should have right to have court review agree-ment when signed No
Sanc-tions If the remuner-ation is in excess of the amount permitted or is in excess of the amount fixed, the excess shall be refunded to the client on demand If contents not proper or no filing, lawyer only entitled to compen-sation in absence of agree-ment and without regard to the contin-gency No If don't deliver notice of right of review, lawyer only entitled to compen-sation in absence of agree-ment No Upon review at filing, Registrar may vary, modify or disallow any provision, until Registrar decides that agree-ment complies with statute, it is null and void If contents not proper or no filing, lawyer only entitled to compen-sation in absence of agree-ment and without regard to the contin-gency If contents not proper or no filing, lawyer only entitled to compen-sation in absence of agree-ment and without regard to the contingen-cy If contents not proper or no filing, lawyer only entitled to compen-sation in absence of agree-ment and without regard to the contin-gency If the remuner-ation is in excess of the amount permitted or is in excess of the amount fixed, the excess shall be refunded to the client on demand If not filed, lawyer only entitled to compen-sation in absence of agree-ment and without regard to contin-gency No If a client does not receive a copy it's unenfor-ceable
Prohibi-ted Areas & Clients Child custody or access; Matrimo-nial disputes (unless court appro-ved) No No No No Improper for Defendant in Criminal or quasi-Criminal matters; lawyer not allowed to make agree-ment with client who is able to pay No No No Family Law, Legally Disabled, Distribu-tion of Estates No Family and Criminal Family and Criminal
Court Review Available & Limitation Period Yes, within 90 days after agree-ment made or retainer terminated Yes, at any time after agree-ment made until expiry of 6 months from last date on which lawyer has received the fee or part of the fee Yes Yes, at any time within 3 months after payment to lawyer No Yes, after the successful comple-tion of the matter Yes, at any time after agree-ment is made until expiry of 8 months from date on which lawyer received the fee or part of the fee Yes, at any time after agree-ment is made until expiry of 6 months from date on which lawyer received the fee or part of the fee Yes, at any time after agree-ment is made until expiry of 6 months from date on which lawyer received the fee or part of the fee Yes, within 90 days after agree-ment made or retainer termi-nated Yes, at any time after agree-ment made until expiry of 1 year from last date lawyer has received the fee or part of the fee Yes, to a Judge not Assess-ment Officer or Master Yes, to an Assess-ment Officer by either party
Fixed or Maximum Fee Specified & Basis of Compen-sation Lawyer cannot be paid a fee based on the amount recovered and an amount equal to any costs awarded to client No Suggest-ed 20% before trial, 25% after trial. Discou-rage practice of fees plus costs. No provision but general-ly 45% up to $10,000 and 10% over $100,000 No No No No No No No 20% with leave of court to permit higher; lawyer entitled to costs plus the fee applied to the actual recovery with respect to the claim Sliding fee scale with lower maximum for settle-ments prior to discovery and increasing as move along in process; percen-tage should be applied to gross recovery excluding costs; client should be liable for costs & disburse-ments even if unsuc-cessful
Settle-ment Provision None Provision requiring lawyer consent is void None None None Provision requiring lawyer consent is void Provision requiring lawyer consent is void Provision requiring lawyer consent is void Provision requiring lawyer consent is void No Provision requiring lawyer consent is void N/A N/A
Termina-tion/ Change Lawyer Provision None Client may change lawyers notwith-standing agree-ment None None None Provision that client cannot change lawyers is void but lawyer entitled to fees & disburse-ments s/he would otherwise be entitled to Client may change lawyers notwith-standing agree-ment Client may change lawyers notwith-standing agree-ment Client may change lawyers notwith-standing agree-ment No Client may change lawyers notwith-standing agree-ment N/A Client may change lawyers subject to paying lawyer for work done on traditional basis

Note: This chart is up-to-date as of 1994. Quebec no longer has any specific regulations regarding contingency fees, their only requirement is that the fees be fair and reasonable.

 

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