Legal Fees, Disbursements and Costs

The short version

We act for injury, malpractice and disability clients on a contingency fee basis. You pay us nothing up front and nothing as the case goes along. We fund the expenses of building your case ourselves. If we do not recover anything for you, you do not pay us a fee, and you do not repay the expenses we advanced.

If we do recover something, our fee is a percentage of it, and the expenses come out of the recovery as well. The rest of this page explains exactly how that works, because a percentage on its own does not tell you what you will actually receive.

What we charge

Our fee is on a sliding scale that rises with the stage the case reaches. That is deliberate. A claim resolved before a lawsuit is issued has taken a fraction of the work and carried a fraction of the risk of one fought to the end of a trial.

Tort claims

• 20% plus HST if the case settles before a statement of claim is issued
• 25% plus HST if it settles after the claim is issued but before examinations for discovery
• 30% plus HST if it settles after discovery but before the first pre-trial conference
• 35% plus HST if it settles at or after the first pre-trial or mediation, but before trial
• 40% plus HST if it settles after trial has commenced

Accident benefits claims

• 25% plus HST if the claim settles on a full and final basis before a Licence Appeal Tribunal dispute is filed
• 30% plus HST if it settles after filing but before the hearing
• 35% plus HST if it settles after the hearing has commenced

Where a motor vehicle collision generates both a tort claim and an accident benefits claim, each is dealt with under its own scale.

What the percentage applies to

The percentage applies to what you recover as a settlement or award, and to any amount you receive as costs. It does not apply to any amount you receive specifically for disbursements or taxes.

There is also a hard ceiling set by regulation. Our fee cannot exceed the amount you recover, including costs and excluding disbursements and taxes. A contingency fee cannot swallow your damages.

Solicitors Act, s. 28.1; O. Reg. 563/20.

Disbursements

Disbursements are the out-of-pocket expenses of building a case: court filing fees, medical records, expert reports, assessments, court reporters, and similar third-party costs. In a malpractice or serious injury file they are substantial, because the expert evidence is what proves the case.

We pay them as the case goes. If you recover nothing, you do not repay them. If you do recover, they come out of the recovery and are shown as a separate line in your final account.

What we do not do is bill our own internal costs as disbursements. The time of other lawyers, clerks, paralegals and assistants is part of the legal service covered by the contingency fee, not an extra charge to you. The exception is a narrow category of internal items that a court or the Rules specifically allow.

Costs, and the risk of losing

In Ontario the losing side usually pays a portion of the winner's legal costs. That cuts both ways.

If you win or settle, you may recover costs, which offsets part of what the case has cost to run. If you lose, a court can order you to pay costs to the other side.

Costs are normally awarded on a partial indemnity scale. There is no fixed formula for it: the court fixes an amount that is fair and reasonable for the unsuccessful party to pay, having regard to a list of factors in the Rules. As a working benchmark, the Court of Appeal has described the usual approach as treating partial indemnity costs as roughly 60 per cent of full indemnity costs, though awards in practice range either side of that. In defined circumstances, including where a party has rejected a reasonable formal offer to settle, costs can be awarded on a substantial indemnity scale, which is one and a half times the partial indemnity figure.

Rules of Civil Procedure, rules 1.03(1) and 57.01; Climans v Latner, 2020 ONCA 554 at para 108.

This is why formal offers to settle matter so much, and why your lawyer will talk to you about risk at mediation rather than simply cheering you on. It is also why adverse costs insurance exists, though it is not available for every kind of claim and generally not for medical malpractice. We will tell you early whether it is realistically an option on your file.

What you actually receive

A settlement figure is not what lands in your account, and the gap surprises people. When your matter resolves, the money is paid into our trust account and you receive a detailed final account statement showing, in order:

• The total amount of the settlement or award
• Our fee, calculated on the applicable percentage
• HST on that fee
• The disbursements we advanced, plus taxes on them
• Any amount that must be repaid to a third party out of the settlement, including OHIP’s subrogated claim and other repayment obligations
• The balance payable to you

Ask for that calculation before you accept anything, not after. Any offer can be run through it in a few minutes, and no client should be deciding on a gross number when the net one is available.

You do not have to use a contingency fee

You can retain us on an hourly basis instead. That means paying a retainer up front and paying accounts as the case proceeds, and it means the recovery is yours without a percentage coming off it. Our hourly rates are available on request.

Most injury and malpractice clients choose the contingency route because they cannot fund years of litigation and substantial expert costs out of pocket, which is precisely what contingency fees exist to solve. But it is a choice, and you should make it knowing there is one.

The protections you have

Ontario regulates contingency fees closely, and several of those protections are yours regardless of which firm you retain.

• A standard form agreement. Contingency fee agreements must use the Law Society's plain-language standard form. Very little of it is drafted by the firm.
• The consumer guide, before you sign. You must be given the Law Society's guide, Contingency fees: What you need to know, before entering the agreement rather than afterwards.
• Time to read it. There is no reason to sign anything at a first meeting. Take the agreement away.
• A right to have the account reviewed. If you think the final account is unreasonable, you can ask the Superior Court to assess it.
• Court approval where a party is under disability. Where the client is a minor or otherwise under disability, a judge must approve the agreement.

If the relationship ends early

You can end the retainer at any time. We can also end it where our professional obligations require or permit us to.

If that happens before your case concludes, you may still owe the disbursements incurred to that point and our fees for work done, calculated at hourly rates rather than as a percentage. In practice that is collected out of the eventual settlement rather than from you directly.

Common questions

What happens if we lose?

You owe us no fee and you do not repay the disbursements we advanced. What you can still face is a costs order in favour of the other side, which is a separate exposure and the reason to discuss adverse costs insurance early.

Is the percentage negotiable?

The scale reflects the risk and work at each stage, but the agreement is between you and us and you should raise any question about it before signing rather than after.

Why are disbursements so high in malpractice cases?

Because liability turns on expert evidence. Obtaining opinions from qualified specialists, and often several of them, is expensive, and it has to happen before anyone knows whether the case can succeed.

Do I pay anything at the first meeting?

No. An initial consultation costs you nothing and does not commit you to retaining us.

What if I already have a lawyer?

You are entitled to change counsel. Speak to us about how fees already incurred on your file would be dealt with, since your former lawyer will generally have a claim against the eventual recovery.

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