Case information

Contracts — Contingency agreement — Barristers and solicitors — Fees — Solicitors’ lien — Aboriginal law — Availability of receivership order against Indigenous party — Courts — Stare decisis — Horizontal stare decisis — Whether client party to contingency agreement with lawyer bound to pay when client does not recover or collect — Whether solicitors’ lien appropriate in such circumstances — Whether receivership order contravenes Indian Act, R.S.C. 1985, c. I-5, ss. 29 and 89, when parties are Indigenous — Ambit of stare decisis — Whether lower court judges must apply wrongly decided decisions from same level.

Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.

In the course of an action by Mr. Miracle seeking the right to profits and ownership of an on-reserve business, Mr. Miracle was represented by Mr. Bogue, a lawyer. The retainer agreement they entered into provided that Mr. Bogue would receive “a contingency fee of 25% of the amount awarded by the Arbitrator”, with an appendix stating that the fee was to be based on the amount “recovered” with Mr. Bogue’s assistance. Mr. Bogue never rendered a formal account. Mr. Miracle acquired the on-reserve business and a $1,345,646.84 share of the dividend declared by his former business partner’s Trustee in Bankruptcy. In making the receivership award, an application judge found that part of the arbitration award had taken effect when the business was transferred to Mr. Miracle in 2018, and that Mr. Miracle had acknowledged that he owed $2,871,000 to Mr. Bogue and other specified amounts to others in an assignment agreement between Mr. Miracle and his then lawyer. Mr. Miracle’s appeal of the receivership order led to a holding that a receiver acting on behalf of a creditor who is not an Indian for the purposes of the Indian Act cannot recoup profits from Mr. Miracle’s on-reserve businesses, but that s. 89 did not protect Mr. Miracle’s off-reserve assets from seizure: 2022 ONCA 672. The Trustee in Bankruptcy collected $1,458,725.16, of which Mr. Miracle was entitled to $1,345,636.84, subject to the ability to access those funds. Up to the time of the decision of Mew J., Mr. Bogue had received $13,020.75 towards his fees, but claimed that he was owed a further $2,871,000.

Inter alia, Mr. Bogue’s motions for declaration of solicitor’s lien and summary judgment on claim and counterclaim were granted. The Court of Appeal dismissed the appeal.