Leganchuk v. Friesen et al., 2012 MBCA 44

Citation: Leganchuk v. Friesen et al., 2012 MBCA 44 Date: 20120426 Docket: AI 12-30-07734 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Freda M. Steel Mr. Justice Martin H. Freedman Madam Justice Holly C. Beard BETWEEN : LEONARD LEGANCHUK ) L. Leganchuk ) on his own behalf (Plaintiff) Appellant ) ) W. S. Gange and - and - ) A. M. Cathcart ) for the Respondents CAL FRIESEN and ) IAIN MACNAIR ) Appeal heard and ) Decision pronounced: (Defendants) Respondents ) April 26, 2012 STEEL J.A. (for the Court): 1 Mr.

Leganchuk entered into a contingency agreement (the agreement) with the law firm of which the defendant lawyers were members, to advance a claim for damages in relation to a class action proceeding due to Mr. Leganchuk’s use of the drug Serzone. 2 The agreement provided that the defendants had the right to withdraw their services and terminate the agreement if, in their sole discretion, they determined that the case was without merit. The defendants exercised their discretion to terminate that agreement. Mr.

Leganchuk confirmed that he received the letter that terminated the agreement. 3 A settlement was arrived at with respect to the Serzone class action some year and a half after the agreement was terminated. Mr. Leganchuk was not a party to the class action since he did not file a claim. Whether he would have been entitled to any damages arising from the class action is an issue that need not be dealt with and is not relevant to this appeal. 4 Mr. Leganchuk filed a statement of claim alleging that the defendants were negligent in providing legal services to him. On motion, the master granted the defendants

summary judgment finding that there was no genuine issue for trial. On appeal to a judge of the Queen’s Bench, that judge also granted the defendants’ motion for

summary judgment, thereby confirming the master’s finding. 5 This is an appeal from that order of the Queen’s Bench judge granting

summary judgment. An appeal court will not interfere with a discretionary order such as an order for

summary judgment unless there is an error in principle, a misapprehension of the evidence or the order is clearly wrong (see Homestead Properties (Canada) Ltd. v. Sekhri et al. , 2007 MBCA 61 , 214 Man.R. (2d) 148 ) . 6 We see no basis for intervention here. Mr. Leganchuk has argued that the class action settlement agreement supersedes the agreement. We do not agree. The two are separate and distinct contracts. The parties to the agreement are not parties to the class action settlement agreement, so the terms of the latter have no legal effect on the former.

The Class Proceedings Act, 1992 , S.O. 1992, c. 6, of Ontario does not govern this agreement. 7 Mr. Leganchuk further argues that the defendants were wrong in the manner of termination. The contract clearly states as the judge indicated: The retainer agreement, which you entered into with [the defendants], expressly provided [the defendants] with the right to withdraw its services and terminate the agreement in the event that in its sole discretion they determined that the case, that is your case, involving the drug in question was without merit …. There is no ambiguity there.

It is there in black and white, and it makes it clear that they have

that discretion, that sole discretion to determine the issue. 8 Whether or not the defendants made the right decision, it was within their discretion to make that decision according to the contract signed between the parties. 9 Mr. Leganchuk also refers to a

section in the agreement incorporating s. 55 of The Legal Profession Act , C.C.S.M., c. L107, which allows a client six months to complain to the court concerning the remuneration paid to the lawyer pursuant to a contingency agreement. There was no remuneration paid here and that

section has no relevance. 10 The judge was correct in finding that there was not a genuine issue for trial. The appeal is dismissed with costs. Consent of Mr. Leganchuk as to the form of the order is dispensed with; however, a copy of the order should be sent to Mr. Leganchuk by ordinary mail within ten days of the signing of the order. J.A. J.A. J.A.