Bosnali v. Michaud [2019] O.J. No. 2337 is a perfect example of the plaintiff holding out for too much and ultimately getting nothing.
Bosnali was injured in a motor vehicle accident. Michaud was the opposing driver. Bosnali sued for $6 million. Michaud made two offers to settle, $310,000 which was increased to $550,000 on the eve of trial.
Bosnali rejected both and won $100,000 at trial.
Lawyers know what happened next:
Bosnali having won less than the Defendant’s offers, was now responsible for the Defendant’s costs from the dates of the offers (even though Bonsnali ‘won’ at trial).
The trial judge determined that Bosnali owed Michaud $11,000 in net costs.
The Plaintiff’s lawyers sought to get paid by arguing the following theory:
Bosnali was awarded $100,000 from the Defendant, this ‘award’ should be charged with a solicitor’s charge under s.34 of the Solicitor’s Act.
Although Bosnali owes the Defendant the Defendant-costs (approximately $110,000 net) that’s Bosnali’s problem not the plaintiff-lawyer’s problem.
The point is the plaintiff-lawyer saw an ‘award’, theorized that it was property recovered from the litigation under the solicitor’s act and wanted it charged for his fees.
Bosnali went bankrupt. The plaintiff lawyer did not make a claim in bankruptcy theorizing that his solicitor’s charge, which the court had imposed on an interim basis, was a secured asset and therefore outside the bankruptcy.
This is an elegant theory and has operated on occasion. However Brown J.A. at the Court of Appeal properly determined that:
(para 17) there was no ‘property’ recovered on the litigation. The theoretical jury award of $100,000 was not a final judgement. The final judgment awarded $11,675 to the Defendant. As such the ‘property recovered’ requirement for a charge under the solicitor’s act never existed.
The plaintiff-lawyer having failed to make a claim in bankruptcy, has no recourse against Bosnali.
