Kenneth W. Golish, Law Office

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Information About Legal Fees

Litigation Matters Only

Questions and Answers

Fee Guide

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Criminal Law Centre

Information in this article is not intended as legal advice. No warranty exists as to the accuracy of any particular provisions. Reference should be made to all applicable statutes and caselaw. You may consult this lawyer or any other for advice.

Legal Stuff

Civil Litigation Matters

Can I get a free consultation in a litigation case?

Most lawyers doing litigation will provide an initial consultation without charge. Call to find out if one is available.

Who pays for the lawyer I hire in a litigation case?

Ontario has a system of "loser pays." In some civil litigation matters, all or part of party's legal expenses may be paid by the other side. Although litigation expenses are usually a matter for the discretion of a judge, the normal rule is that the loser will have to pay the winner of the case, part of his or her legal fees. This is regardless of whether the winner is a plaintiff or a defendant. These are called "costs" which may be awarded on a "party and party" scale or on a "solicitor and client" basis.

Solicitor and client costs are those litigation expenses that the client will have to pay his or her lawyer. Party and party costs are something less and the kind of costs typically awarded by judges to winning parties. On some occasions, a court however will award full solicitor and client costs to the winning party. This might happen when the losing party has pursued an unreasonable claim or defence and is judged to have frivolously put the other party and the court through a needless burden. Solicitor and client costs might also be imposed as a consequence of refusing to accept a settlement offer. As an example: an offer to settle is made on Day 40 by the plaintiff and remains open until Day 180 when the trial starts. The trial concludes with a better award for the plaintiff than he or she would have received under the offer. A judge would probably award party and party costs until Day 40 and solicitor and client costs thereafter.

Is it possible I might have to pay the lawyer on the other side?

"Loser pays" may mean that not only do you have to pay your own lawyer's fees, you will have to pay part or all the expenses of your opponent.

Does this mean I don't have to put up any money up-front if I expect to win in a litigation case?

Even litigants who eventually succeed in their cases will normally have to contribute something towards the costs of the litigation at the start of the case. In most circumstances, you may be asked for a retainer to cover all or part of the expected fees and disbursements. However in some cases, credit may be extended or you may make arrangements for monthly payments. An initial consultation of one half hour or less may be free. Call first to see if that is available. You may not be able to obtain a quote of an exact fee in every case, but should know how services are charged and what range of fees you might reasonably expect to pay.

How are lawyer fees determined?

In litigation cases, but also in other matters, a number of factors go into deciding what an appropriate fee should be. They include the complexity of the case, the amount of money involved, the hours expended and whether the party was successful in the proceeding. When a fee dispute arises between a client and lawyer, the matter can go before a court officer to determine a proper assessment of the legal account. Clients may be interested in the Law Society of Upper Canada's information about lawyer accounts, see Law Society Dial-a-Law tape transcript.

Can't my lawyer agree to take a percentage of my winnings and nothing if I lose?

The last version of this article answered that question as follows:

For now, Ontario prohibits contingency fees in litigation matters. Even in jurisidictions where such fees are allowed, clients are still responsible for disbursements which can be significant. However, while contingency fees are not permitted, lawyers are entitled to take results into account--and so are clients. Thus if you lost your case, even if your lawyer did a good job, and even if you acted reasonably, your lawyer should take the loss into account and reduce his or hers fees accordingly. However, expect to pay more when you win. That's only fair.

However, it should be noted that a recent trial court decision has approved such fees. Moreover, while the Attorney General of the province has appealed that decision, speculation suggests the province will be happy to lose the case. In any event a recent court decision of the appeal court has already suggested that such fees are not contrary to law. As well, it may not be hard to find a lawyer who will enter into such an agreement. In fact, more lawyers are formalizing such arrangements in written retainer agreements.

Criminal Litigation Matters

Fee Guide

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Criminal Litigation Practice

Can I get a free consultation?

Most lawyers will provide an initial consultation without charge. Call to find out if one is available.

Who pays for the lawyer I hire in a criminal case?

Legal assistance through Legal Aid Ontario may be available to those who qualify. No loser pay system exists for criminal cases. Unless you have legal aid, whether you win or lose, you pay your own fees. In my practice, some services are set on basis of time spent. However, in most instances, services are provided on a block fee basis while reduced fees may be available to persons of modest means.

Do I have to pay the money up-front in a criminal case?

Flexible fee arrangements may be available depending on the circumstances.

Are lawyer fee disputes adjudicated the same way in criminal cases?

Just as in civil litigation matters, a client who is unhappy with a lawyer's bill may have the bill assessed by a court officer. Similar factors apply in deciding what an appropriate fee should be. Again see Law Society Dial-a-Law tape transcript.

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