Judge sees enough indicia to establish that lawyers acted for a man in an estate dispute
The Ontario Court of Appeal has affirmed a decision that lawyers met their heavy onus, given their failure to reduce the retainer’s terms to writing, to establish a solicitor-client relationship to sustain an order seeking an assessment for unpaid accounts.
KMH Lawyers v. Kasanda, 2025 ONCA 694, arose from actions relating to a dispute over the estate of Elke Kasanda’s father. The respondents – KMH Lawyers and one of its lawyers, Miriam Vale Peters – represented Elke as a party to the actions.
The respondents obtained an order against the appellants – Elke, Paul Kasanda, and his company L3 Prime Inc. – for an assessment for unpaid accounts under s. 3 of Ontario’s Solicitors Act, 1990. Paul and L3 were not parties to the estate proceedings.
The appellants moved to remove Paul as a party to the assessment. Paul alleged that:
- Miriam agreed to accept cheques from L3 to pay her fees, but only if the company signed her firm’s retainer agreement
- The respondents provided no legal services to Paul
- The respondents did not tell him that they expected him to pay the legal fees for the estate matter
- He did not consent to liability for those fees
In July 2024, Justice Heather Williams of the Ontario Superior Court of Justice dismissed the motion. The judge applied the test for finding a solicitor-client relationship and canvassed 14 indicia of such a relationship, as stated in Drawing on Capital Sports Management Inc. v. Trinity Development Group Inc., 2022 ONSC 2657.
The motion judge stressed the lawyers’ heavy onus to establish the retainer if they failed to put the retainer’s terms in writing. The judge held that this case met that onus.
The judge found sufficient signs of a solicitor-client relationship to support that a reasonable person, knowing all the facts, would reasonably conclude that the respondents acted for Paul in connection with the estate proceedings, including:
- Another lawyer personally referred to Paul in a referral email to Miriam
- Both Paul’s and Elke’s names appeared on KMH’s litigation intake form
- The retainer agreement was initially in Paul’s name, but was later put in L3’s name
- The retainer was for general legal services, not the estate matter
- In an affidavit, a legal assistant at KMH swore that Paul asked the firm to put the retainer in L3’s name and refrain from sending him detailed invoices
- Paul wanted L3 to pay the legal fees for the estate dispute, but did not want the retainer to reflect that the fees related to the estate proceedings
- Based on the firm’s dockets, communications included Paul’s instructions to the respondents and their advice to Paul
- KMH prepared an affidavit to which Paul swore in the estate matter
- While not a party, Paul had an interest in the estate dispute
- In an email exchange, Paul agreed to provide $30,000 for legal fees without mentioning L3
Paul appealed. He asserted that the motion judge erroneously found a solicitor-client relationship between him and the respondents.
Solicitor-client finding affirmed
The Court of Appeal for Ontario dismissed the appeal and awarded the respondents costs, fixed in the all-inclusive amount of $10,000, as agreed.
Paul argued that the judge applied the wrong test and should have conducted a contractual analysis to find that a solicitor-client relationship existed. The appeal court rejected this argument.
The appeal court ruled that the judge directly tackled the issue and correctly summarized the appropriate test for determining whether a solicitor-client relationship existed.
The appeal court added that the judge was aware of the heavy onus on the respondents, considering their failure to write out the retainer’s terms, and was entitled to conclude that this case met the onus. The appeal court saw no reason to interfere with that conclusion.
