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Representation - Lawyers - Solicitor's Liens. Universal Ostrich Farms Inc. v. Canada (Food Inspection Agency)
In Universal Ostrich Farms Inc. v. Canada (Food Inspection Agency) (Fed CA, 2025) the Federal Court of Appeal dismissed an appeal, here from a Federal Court judgment dismissing "an application for judicial review of two related decisions of the respondent, the Canadian Food Inspection Agency (the CFIA)" in a high-media case involving the cull of a flock of farmed ostriches.
The court considers an (apparently) solicitor's lien issue, here in the context of giving rise to a solicitor's conflict of interest argument, this in support of an ineffective assistance of counsel argument, this in further support of a fresh evidence motion:[42] We also wish to note, having reviewed the affidavit of the appellant’s principal to determine its admissibility, that the evidence falls far short of what is required to prove ineffective assistance because it does not establish a conflict of interest. Notably, counsel’s security interest also extended to all the appellant’s present and after acquired personal property. The appellant failed to adduce evidence demonstrating that the compensation received from the Minister was the only, or even the most feasible way, for counsel to collect their fees. Additionally, the appellant did not provide any case law or guidance from a provincial law society suggesting that this type of security interest would be inappropriate. Based on the Federal Court decision and record before us, there is nothing that in any way impugns the integrity or performance of counsel before the Federal Court. . Bogue v. Miracle
In Bogue v. Miracle (Ont CA, 2025) the Ontario Court of Appeal dismissed an appeal, here from a "judgment of the motion judge that granted summary judgment against him" and "the solicitor’s lien granted to the respondent.":
Here the court considers the law of solicitor's liens:[22] The motion judge determined that the respondent could not obtain a solicitor’s lien under s. 34 of the Solicitors Act because the fees arose out of an arbitration and not a proceeding in the Superior Court of Justice. I do not see any error in that conclusion. The wording of s. 34 is clear on this point.
[23] However, the motion judge also determined that the respondent was entitled to a common law solicitor’s lien. A solicitor’s lien under s. 34 and at common law have been said to be “two sides of the same coin”: Weenen v. Biadi, 2018 ONCA 288, 141 O.R. (3d) 276, at para. 16. The granting of a solicitor’s lien is also discretionary. The test for granting either form of solicitor’s lien is the same. Three factors are to be considered:a) the fund or property is in existence at the time the order is granted;
b) the property was "recovered or preserved" through the instrumentality of the solicitor; and
c) there must be some evidence that the client cannot or will not pay the lawyer's fees.
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