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Representation - Lawyers - Solicitor-Client Relationship. KMH Lawyers v. Kasanda
In KMH Lawyers v. Kasanda (Ont CA, 2025) the Ontario Court of Appeal dismissed an appeal, this brought by the appellant against a motion judge (below) finding "a solicitor-client relationship between him and the respondents". The underlying proceeding was one which resulted in "an order for assessment for unpaid accounts under s. 3 of the Solicitors Act".
Here the court considers whether a solicitor-client relationship existed:[5] The motion judge summarized the proper test for whether there is a solicitor-client relationship: it is a question of fact, considering whether a reasonable person in the position of a party would reasonably believe the lawyer was acting for a particular party: Trillium Motor World Ltd. v. General Motors of Canada Limited, 2015 ONSC 3824, 48 B.L.R. (5th) 142, at para. 461, rev’d in part on other grounds, 2017 ONCA 544, 72 B.L.R. (5th) 177, leave to appeal refused, [2017] S.C.C.A. no. 366.
[6] Drawing on Capital Sports Management Inc. v. Trinity Development Group Inc., 2022 ONSC 2657, 161 O.R. (3d) 120, at para. 34, the motion judge also canvassed 14 indicia of such a relationship, including a contract or retainer, an open file, meetings, correspondence, bills rendered and/or paid, instructions given and/or acted on, statements made to others, and legal advice given.
[7] The motion judge emphasized that where a lawyer fails to reduce the terms of the retainer to writing, there is a heavy onus on the lawyer to establish the retainer: citing Rye and Partners v. 1041977 Ontario Inc., 2004 CanLII 8988 (ON CA), 188 O.A.C. 158.
[8] The motion judge found several facts which supported her finding that this “heavy onus” was met in this case and that a solicitor-client relationship existed between Paul and the respondents, including:. In a referral email from another lawyer to Miriam, the other lawyer refers to Paul personally.
. Paul, or Paul and Elke, put Paul’s name on KMH’s litigation intake form as well as Elke’s.
. There was an initial retainer agreement prepared in Paul’s name which was later updated to be in L3’s name. The retainer was for general legal services, not the estate matter. A legal assistant (who worked for KMH) swore in her affidavit that Paul asked KMH to put the retainer in L3’s name and not to send him detailed invoices. The motion judge found that Paul wanted his company to pay the legal fees for this estate dispute but did not want it to be obvious on paper that the legal fees related to an estate dispute.
. Based on the firm’s dockets, there were communications containing both: (a) instructions from Paul to the respondents; and (b) advice from the respondents to Paul.
. KMH also prepared an affidavit for Paul which he swore in the estate proceedings, and the motion judge found that Paul, although not a party, had an interest in the estate proceedings.
. There was an email exchange in which Paul agreed to pay $30,000 for legal fees without reference to L3. [9] The motion judge concluded, at para. 21:I find there are sufficient indicia of a lawyer-client relationship present in this case to allow me to conclude that a reasonable person in the position of a party with knowledge of all the facts would reasonably conclude that the lawyers were acting for Paul. [10] Paul argues that the motion judge applied the wrong test, and that a contractual analysis was more appropriate in this case than an analysis to determine if there was a solicitor-client relationship. We do not see this distinction as giving rise to an error, as Paul’s argument to the motion judge was that he was not a client of the respondents. The motion judge engaged directly with that question and applied the proper criteria in reaching her findings, which were open to her on the record.
[11] Similarly, contrary to the appellants’ submission, the motion judge was alive to the heavy onus resting upon the respondents, given their failure to reduce the terms of the retainer to writing. She found that the onus had been met in this case, and we see no basis to interfere with that conclusion.
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