Personal injury lawyer jumping ship in Ontario looks to collect on share of fees from clients
A personal injury lawyer who spent 18 years at a Sudbury, Ont. firm before jumping to a competitor is not entitled to a share of fees on files that were still open when he left — even if his work contributed to their eventual resolution — the Ontario Court of Appeal has ruled.
In a June 15 decision, the court allowed the firm's appeal in part in Wallbridge, Wallbridge v. Poupore, finding that the employment contract, though sparse, was clear enough on the point that mattered: the lawyer got paid when he closed files, not when someone else did.
He joined Wallbridge, Wallbridge in 2003 as a salaried employee and eventually moved to a commission structure, earning a percentage of fees billed and collected on files he brought to resolution. In early 2021, while still at Wallbridge, the lawyer began talks with Diamond & Diamond about opening a competing office in Sudbury.
He signed with Diamond in June 2021, continued working at Wallbridge in the meantime, and told the firm about his plans on October 1, 2021. Wallbridge terminated him the same day — cutting off his server access, demanding his keys, and threatening litigation.
Dispute over fees after departure
A dispute followed over three categories of unpaid fees:
- fees collected by Wallbridge in the month before his termination
- fees billed and collected after termination on files he had been running before they were handed to other lawyers
- fees from three settlements he had personally negotiated, for clients who followed him to Diamond before those files were billed.
The motion judge awarded the lawer compensation in all three categories, finding the oral employment contract entitled him to his share of fees once files were billed and collected — regardless of when that happened relative to his departure. She also found that even without a contract, Wallbridge would have been unjustly enriched by keeping the fees.
The firm appealed on four grounds, including contract interpretation, unjust enrichment, breach of duty, and damages.
Fees collected by law firm
Justice Miller, writing for a unanimous three-judge panel, allowed the appeal in part. The key distinction was between files the lawyer had personally brought to settlement before leaving, and files that others finished after he was gone.
On the first category — fees from settlements he negotiated himself, including for clients who followed him to Diamond — the court upheld his entitlement. Those files fell squarely within what the court called the "Rowen principle," drawn from an earlier Court of Appeal decision establishing that where a principal accepts and benefits from work performed on its behalf, it is liable to pay for it in the absence of an agreement to the contrary. The lawyer had done the work; he was entitled to the fee.
On the second category — fees collected by Wallbridge on files transferred to other lawyers after his termination — the court found no contractual basis for payment. The contract was built entirely around contingency: "Remuneration is based entirely on resolution of a claim resulting in an award of damages for the client." Just as a commissioned salesperson earns nothing on a deal closed by someone else, the lawyer’s contract "contemplated that not all work will be remunerated" and "did not contemplate part-payment for work that contributed, to some degree, to a job that was finished by others."
The court was also unpersuaded by his evidence that two other lawyers who had left Wallbridge received some credit for unfinished files. The court found that any such payments were entirely at the firm's discretion — reflecting the founding partner's "autocratic nature," as the lawyer himself had described it — and not a contractual entitlement that could give rise to an implied term.
The court also rejected the lawyer’s fallback argument that Wallbridge would be unjustly enriched if it kept the fees. Quantum meruit, the court held, does not apply where the work in question falls within the scope of an existing contract that already addresses how it will be remunerated. His work on the unbilled files was encompassed by that contract, and the contract simply did not promise payment for contributions to files that others ultimately resolved. The motion judge erred in finding otherwise.
No breach of good faith
On the question of whether the lawyer had breached his duty of good faith by secretly signing with Diamond while still at Wallbridge, the court sided with him. His only service to Diamond during the overlap period was helping scout office space in Sudbury — conduct the motion judge had characterized as "nothing more than planning for his departure," a finding the Court of Appeal declined to disturb.
He had maintained his billings at Wallbridge throughout, done nothing to undermine the firm, and had not induced his assistant or law clerk to follow him, even though both eventually did.
Wallbridge's damages argument — that it would have terminated Poupore earlier had it known about the Diamond contract, and should be reimbursed for the salary paid in the interim — fell away once the court found no breach.
The lawyer was awarded $25,000 in costs of the appeal.
