The documents are relevant to assessing the fairness of the firm's charges: court
The Ontario Superior Court of Justice has ordered Elkin Injury Law (EIL) to disclose its accident benefits file in a dispute over unpaid legal fees, ruling that the documents are relevant to assessing the fairness of the firm’s charges.
In Elkin Injury Law v. Smith, 2025 ONSC 1384, the court ruled on competing motions in a legal fees dispute between EIL and a former client. The case concerns unpaid legal fees for services EIL provided regarding an accident benefits claim from 2015 to 2024.
EIL had represented the defendant until February 26, 2024, when the defendant retained Falconeri Rumble Harrison LLP (FRH). EIL subsequently issued an account for its services, but the defendant made no payments. While FRH initially indicated that a notice of assessment would be issued, none followed. As a result, EIL filed a statement of claim on April 22, 2024.
EIL sought an affidavit of documents and an examination for discovery from the defendant, but the defendant failed to comply. EIL then brought a motion to strike the statement of defence or to compel the defendant to provide the required disclosure and attend discovery. In response, the defendant brought a cross-motion, arguing that EIL’s affidavit of documents was incomplete because it did not include the accident benefits file.
The Superior Court found that the defendant’s obligation to produce an affidavit of documents and attend discovery was independent of any deficiencies in EIL’s disclosure. However, it declined to strike the defence, ruling instead that compelling the defendant’s compliance was the appropriate remedy.
A central issue was whether EIL’s accident benefits file, including its internal work product, should be disclosed. The court determined that the fairness and reasonableness of EIL’s fees were relevant to the dispute, making the accident benefits file a necessary document. It ordered EIL to submit a revised affidavit of documents that includes these records. However, the court acknowledged that EIL could claim privilege over certain internal materials, such as memoranda, emails, and time dockets, by listing them in Schedule B of its affidavit. The defendant retains the right to challenge these privilege claims in a separate motion.
