What is the test for a contingency fee agreement?

The appellant relies on a series of civil law cases, including Teplitsky, Colson v. McCrea, [2008] O.J. No. 6014 (S.C.). There the client’s fee arrangement in an employment matter provided it would be augmented to include a percentage of the recovery that exceeded a certain offer to settle. In determining whether this constituted a contingency fee agreement, Strathy J. (as he then was) distinguished between a “bonus” in the event of success and a contingency fee agreement. At paras. 77-78, he stated: There has been no authority cited to me …other than the statute itself, for the interpretation of Section 28 to apply to agreements which are not in and of themselves conditional on success, but which contain a bonus in the event of success. This agreement provided for a fee in any event, but a bonus calculated on a percentage basis in the event of success. Nor is any authority cited for the proposition that it is the charging of a percentage that makes the agreement objectionable. While contingency fee agreements are frequently based on a percentage, the calculation of a part of the lawyer’s compensation by reference to a percentage, does not make the agreement bad as a contingency fee agreement.