I practise civil litigation in Ontario, but a little while ago I had the opportunity to be involved in a dispute resolution process in another jurisdiction, which was an enriching learning experience.  While I deal with Ontario’s processes and procedures every single day, it was great to get some exposure to how things are done elsewhere.

Background

The situation involved a relative of mine who lives in the United Kingdom and was looking to purchase a flat.  He found a flat for sale and entered into negotiations with the owner.  The negotiations were so advanced that both parties retained solicitors in anticipation of the sale.  However, after the solicitors took over the negotiations the seller decided not to sell after all and walked away from the deal.

What made this bad situation worse was the fact that my relative’s solicitor did not tell him that the seller had walked away.  Even though he knew that the deal was off, he acted for weeks as though the deal was still going to go through: he even asked my relative to forward the purchase funds.  When the closing date came, he reported that the deal had not gone through and returned the purchase funds to my relative, less the amount of his fee. 

To be scrupulously fair to the solicitor, the retainer agreement my relative signed with the solicitor stated that he would be entitled to a fee for his work even if the deal did not go through.  But what the agreement stipulated was that, in the case of an aborted transaction, he would get a lesser fee for his preparatory work, not the full fee for the transaction (which would have been a percentage of the purchase price).  This solicitor retained the full fee, which was a few thousand pounds more than the lesser fee the agreement stipulated. 

I assisted my relative to bring a complaint against this solicitor to the Legal Ombudsman, which was a new experience for me, because we do not have anything like the Legal Ombudsman in Ontario. 

Comparisons with Ontario Procedure

In Ontario, if you have a problem with your lawyer, you can report them to the Law Society.  But the Law Society can only discipline the lawyer: they cannot order the lawyer to repay any disputed fees or pay any monetary damages.  In Ontario, any dispute about a lawyer’s fees has to be lodged with the court.  The Legal Ombudsman differs from what we are used to here in Ontario in that the Legal Ombudsman, which is not an office or a branch of the court, can nevertheless order a solicitor to repay fees to a client or even order a solicitor to pay compensation to a client. 

Also noteworthy is the fact that the process with the Legal Ombudsman is based entirely on written submissions.  In a dispute about fees heard in Ontario there will virtually always be an opportunity for both sides to appear before a decision-maker to state their case.  By contrast, the Legal Ombudsman makes a decision on the basis of written submissions only, without ever hearing from the disputants in person.

In our case we were satisfied with the result, since the Legal Ombudsman ruled strongly in our favour.  The solicitor was ordered to repay the difference between the lesser fee and the full fee, and was also ordered to pay some modest compensation on account of some unnecessary expenses my relative had incurred when the deal did not go through.

Another interesting contrast from Ontario procedures is that in cases where the Legal Ombudsman has ruled in favour of the client, the Ombudsman will also take enforcement steps.  The Ombudsman will demand payment from the solicitor and even register their decision as a Judgment at the court (which the Legal Services Act permits them to do) if necessary.  Our case did not get to court, as the solicitor did pay the amount ordered after receiving demand from the Ombudsman.  But this is a totally different paradigm from what we have in Ontario: while we do have specialised decision-making bodies whose decisions can be registered with the court and incorporated into a judgment, the decision-making body itself will never take that step.  For example, an order of the Landlord and Tenant Board (“LTB”) can be registered at court, but that has to be done by the landlord or tenant themself, and at their own expense: that is not a step which the LTB will take on its own. 

Another major difference is that that the service the Legal Ombudsman provides is free.  Its office is funded by levies from the legal practitioners.  Again, this is different from Ontario, where every adjudicative body—be it the Small Claims Court, the Superior Court, or an administrative tribunal—charges fees.

Taking a case through the process with the Legal Ombudsman was a unique learning experience.  Because it was a forum with so many differences from what I am used to in Ontario, it left me with a lot of food for thought.  Just because things are done differently in another country does not automatically mean that we should change the way we do things here, but the UK’s Legal Ombudsman can provide a useful example if we do consider any changes in the future.