“In order to obtain a charging order or a lien on the monies in issue, the onus is on the solicitor to demonstrate that a charging order or lien is warranted. The decision is discretionary: Taylor v. Taylor (2002), 2002 CanLII 44981 (ON CA), 60 O.R. (3d) 138 (C.A.), at para. 34; Foley v. Davis (1996), 49 C.P.C. (3d) 201 (Ont. C.A.), at p. 202. In deciding whether or not to exercise that discretion, courts must “balance the circumstances and equities of each case and client”: Taylor, at para. 34.
The test for a charging order under s. 34 [of the Solicitors Act] is clear. To obtain a s. 34 charging order a solicitor must demonstrate that:
i. the fund or property is in existence at the time the order is granted: Langston v. Landen, [2008] O. J. No 4936 (Ont. S.C.J.), at paras. 28-29;
ii. the property was “recovered or preserved” through the instrumentality of the solicitor; Kushnir v. Lowry, [2003] O.J. No. 4093 (C.A.), at para. 2;
iii. there must be some evidence that the client cannot or will not pay the lawyer’sfees; Kushnir, at para. 2; see also Guergis v. Hamilton, 2016 ONSC 4428 (CanLII), at para. 6; Thomas Gold Pettinghill LLP, at para. 88; Foley, at p. 202.
Charging orders exist alongside, and in addition to, a court’s inherent jurisdiction to grant a solicitor’s lien. Although distinct, they are two sides of the same coin, and overlap significantly in purpose and effect. As this court observed in Taylor, at para. 28, s. 34 of the Solicitors Act is a codification of a court’s “inherent jurisdiction in equity to declare a lien on the proceeds of a judgment where there appears to be good reason to believe that the solicitor would otherwise be deprived of his or her costs.”
In our view, the conceptual differences between the two orders, such as how and when they are acquired, do not justify the application of different tests. The two types of charges cover the same circumstances and have identical objectives. Regardless of which of the two remedies is sought, it is our view that the three elements outlined above must be established.”