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Navigating the legal landscape in Canada requires a clear understanding of the foundational contract that binds a legal professional and their client. This article provides an analytical look at the legal framework governing these essential arrangements, specifically exploring the dynamics of a lawyer-client retainer and fee agreement.
A retainer agreement in Canada is fundamentally a contract for professional legal services. The Alberta Court of Queen’s Bench explicitly stated this contractual foundation in Guardian Law Group v LS, 2021 ABQB 591, noting at paragraph 22:
“A retainer agreement is a contract for legal services between a lawyer and a client. Principles of contract law apply to retainer agreements…”
However, this is not just an ordinary commercial transaction. Because the solicitor-client relationship imposes strict fiduciary duties on a lawyer, courts demand a significantly higher level of transparency. The Court of Appeal for Ontario emphasized this in Boudreau v. Lavery, De Billy LLP, 2022 ONCA 691, stating at paragraph 5:
“because a solicitor-client relationship imposes fiduciary duties on a lawyer, solicitor-client retainers are contracts that carry particular duties for lawyers to communicate clearly so that the client understands the terms of the retainer. If there is any ambiguity in a solicitor-client retainer, it is to be construed against the drafter – that is, the lawyer.”
Therefore, a comprehensive lawyer-client retainer and fee agreement identifies who the lawyer is, what tasks they are hired to complete, the boundaries of the work, how fees and expenses are calculated, who makes critical decisions, and how the relationship can safely end.
A retainer constructs mutual obligations for both the lawyer and the client. The Court of Appeal of Newfoundland and Labrador clarified the origin of these specific duties in Fitzpatrick v Hefferman, 2019 NLCA 77, at paragraph 30:
“The origin of a solicitor’s duties is the retainer or contract of engagement between himself and the client. … The retainer, when given, puts into operation the normal terms of the contractual relationship, including in particular the duty of the solicitor to protect the client’s interest, and carry out his instructions in the matters to which the retainer relates, by all proper means.”
From a legal perspective, the most critical practical effects of a lawyer-client retainer and fee agreement include the following distinct elements:
If a retainer is limited in scope, it must be expressed in completely unambiguous terms. As established in Fitzpatrick v Hefferman:
“A solicitor who wishes to limit the scope of his or her retainer bears the onus of doing so in unambiguous terms. Any ambiguity or doubt concerning the scope of the retainer will generally be resolved in favour of the client.”
If a specific clause heavily impacts the client’s substantive rights, the lawyer is legally obligated to actively explain it rather than simply burying it in the text. In British Columbia, the court in 1011173 B.C. Ltd. v Hakemi & Ridgedale LLP, 2021 BCSC 2485 observed:
“The periodic final billing provision was primarily if not exclusively for the benefit of the lawyers… In these circumstances, the lawyers were obliged to bring it to the clients’ attention and provide a reasonable explanation of how it would affect their ability to review the bills issued by the lawyers. The lawyers did not do so.”
Clients must pay specified fees, but the lawyer cannot arbitrarily claim amounts beyond the written terms. In Ontario, section 21 of the Solicitors Act, R.S.O. 1990, c. S.15 explicitly states:
“Such an agreement excludes any further claim of the solicitor beyond the terms of the agreement…”
This means unless the contract explicitly provides for exceptions, the lawyer cannot seek additional remuneration outside the agreed framework.
Provincial regulations protect the client’s right to itemized invoicing. In British Columbia, sections 69(3)-(4) of the Legal Profession Act [SBC 1998] c. 9 establish:
“The bill must be signed by or on behalf of the lawyer…” and “is sufficient in form if it contains a reasonably descriptive statement of the services with a lump sum charge and a detailed statement of disbursements.”
Furthermore, section 70(1) of the same Act notes that “The person charged… may obtain an appointment to have a bill reviewed…” Similarly, under section 24 of the Ontario Solicitors Act, if the terms are deemed by a court not to be fair and reasonable, the agreement may be declared void.
Yes. The general overarching principle is that a client can change their legal counsel at any given time. Section 30 of the Ontario Solicitors Act states:
“If, after any such agreement has been made, the client changes solicitor before the conclusion of the business to which the agreement relates, which the client is at liberty to do despite the agreement…”
The Supreme Court of Newfoundland and Labrador expressed this right even more directly in Estate of P.J.O’N. v. M.C., 2016 NLMA 1, at paragraph 77:
“there is no rule against a client changing lawyers at will, whether for good cause or for no cause at all… the client’s right to change lawyers cannot be denied”
Consequently, any clause restricting this right within a lawyer-client retainer and fee agreement is highly problematic. In Ontario, section 8(b) of the Contingency Fee Agreements regulation explicitly commands:
“A solicitor shall not include in a contingency fee agreement a provision that… prevents the client from terminating the contingency fee agreement with the solicitor or changing solicitors”
In Saskatchewan, the court in One Arrow First Nation v Maurice Law, 2025 SKKB 88 confirmed that financial penalty clauses designed to prevent a client from changing counsel are completely unenforceable:
“The penalty provisions… are not fair or reasonable. They include serious financial consequences to the client for choosing alternate counsel… the practical reality is that the financial consequences of terminating Maurice may very well prevent the client from doing so.”
Yes, but a lawyer cannot do so ambiguously or abandon a client mid-stream. The Court of Appeal of Newfoundland and Labrador in Fitzpatrick v Hefferman, at paragraph 33, outlined the strict rules:
“A lawyer who purports to terminate the solicitor-client relationship before the mandate resulting from the retainer is completed must therefore do so in clear and unambiguous terms…”
The court added that “Absent a clear termination by the lawyer, the relationship will be presumed to continue during which time the lawyer will remain under a duty to complete the work.” If a lawyer intends to withdraw, they must explicitly notify the client of what remains to be done, any pressing deadlines, and how the client can protect their interests, as paragraph 29 highlights:
“If a lawyer takes the position that he or she is unilaterally terminating the professional relationship, that position has to be clearly brought to the attention of the client so that the client can act to protect her interests in other ways.”
If active litigation is ongoing in court, terminating the private contract does not automatically remove the lawyer from the public court record. In Ontario, Rule 15.05 of the Rules of Civil Procedure states:
“A lawyer of record shall act as and remains the lawyer of record for his or her client until… the client delivers a notice… or… an order removing the lawyer from the record has been entered…”
In British Columbia, Rule 22-6(1) of the Supreme Court Civil Rules mandates that until formal notices are filed and served, other parties are entitled to proceed on the basis that no change has occurred. Therefore, you must always distinguish between the private cancellation of the lawyer-client retainer and fee agreement and the formal procedural removal of a lawyer from court records.
When analyzing a lawyer-client retainer and fee agreement, courts strictly apply the principle that any ambiguity is resolved against the drafter. Apart from Boudreau v. Lavery, the court in Janik v Stillman, 2016 ONSC 1801 reaffirmed:
“Where there is no written retainer agreement or letter confirming the scope of retainer, the solicitor cannot limit his mandate… Any ambiguity about the mandate shall be resolved against the solicitor.”
Simply put, if the contract fails to specify exactly what the lawyer will or will not do, the courts will reject restrictive interpretations that favor the lawyer.
To fully protect yourself, you must carefully scrutinize these specific contractual components before signing any lawyer-client retainer and fee agreement:
Be exceptionally cautious if your lawyer-client retainer and fee agreement contains any of the following warning signs:
Canadian courts do not blindly enforce unfair retainer agreements. In Ontario, the Court of Appeal in Bimman v. Igor Ellyn Professional Corporation, 2022 ONCA 781, at paragraph 35, declared:
“the solicitor bears the onus of satisfying the court that the way in which the agreement was obtained was fair and that the terms of the agreement are reasonable.”
If the agreement fails this judicial test, section 24 of the Solicitors Act allows it to be declared void. Similarly, in British Columbia, sections 68(5)-(6) of the Legal Profession Act empower a registrar to modify or cancel any agreement deemed unfair or unreasonable.
Before executing your formal lawyer-client retainer and fee agreement, ensure you have crystal-clear, written answers to these six fundamental questions:
If any of these items remain vague, that ambiguity itself serves as a critical legal warning sign.
Yes, under Canadian law, a client has an absolute statutory and common-law right to change their lawyer at will, with or without cause. Any contract clause that attempts to block this right or penalize the client financially is unenforceable.
Any ambiguity in a solicitor-client contract is strictly construed against the drafter (the lawyer). Courts will resolve the doubt in favor of the client because of the high fiduciary duty imposed on legal professionals.
No, any provision in a contract between a lawyer and a client that attempts to exclude or limit liability for professional negligence is wholly void under provincial laws, such as the Ontario Solicitors Act and the BC Legal Profession Act.
The information presented is for informational and educational purposes only and may not be accurate. This information does not replace getting legal advice from a qualified, practicing lawyer. If you are facing a legal dilemma, you should make an appointment and consult with one of our licensed and practicing lawyers.
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