Liza C. Sheard

The appellant law firm appealed a decision directing the assessment of its legal accounts under the Solicitors Act, arguing the application judge erred in finding 'special circumstances' since the accounts were paid more than 12 months prior.

The respondents cross-appealed the denial of their costs for the application.

The Court of Appeal dismissed both the appeal and cross-appeal, finding the application judge's discretionary decisions on special circumstances and costs were entitled to deference and revealed no error in principle.

The applicants successfully obtained an order for the assessment of their former lawyers’ accounts and subsequently sought $47,000 in costs of the application.

The court held that the claimed partial indemnity costs were excessive and included unreasonable rates and items constituting solicitor overhead.

The court further found that the bulk of the expense resulted from numerous serious allegations of misconduct against the lawyers that were ultimately dismissed and which unnecessarily complicated the proceeding.

In the circumstances, the court declined to award any costs of the application.

The court also clarified that the ordered assessment concerned the original solicitor’s bills rather than a review of a prior assessment and directed that any costs ordered by the assessor against the lawyers be set off against amounts owed by the client.

The applicants sought an order under the Solicitors Act directing the assessment of legal accounts rendered by their former counsel.

The application was brought more than twelve months after the accounts became final and after the accounts had been paid by a court‑appointed receiver pursuant to earlier court orders.

The court held that a prior review by a court‑appointed fee assessor did not bar a statutory assessment under the Act.

Considering the substantial amount of the bills, the relatively short delay beyond the statutory period, and the fact that payment had been made by a receiver rather than the client personally, the court found special circumstances justifying an assessment.

An order was granted directing that the ten monthly bills be assessed in Toronto.

The applicant sought to have a RRIF included as an estate asset despite designated beneficiaries, relying on a deed of arrangement signed by the heirs.

The court found the RRIF was not an estate asset and the deed of arrangement did not alter this, as all parties were mistaken about the estate's net value.

The court ordered the executor to repay $21,592.72 he had personally spent from the estate.

Due to this misappropriation, the court removed him as estate trustee and appointed the applicant in his place.

A law firm was also ordered to repay an inadvertent overpayment of $579.34.

The appellant appealed the dismissal of her claims against her former solicitor and a charitable foundation regarding the transfer of her home with a retained life estate.

At trial, she argued non est factum and breach of fiduciary duty, both of which were dismissed based on credibility findings.

On appeal, she raised a new argument of solicitor negligence regarding ongoing property expenses, which the court declined to hear as it was not pleaded at trial.

The Court of Appeal upheld the trial judge's findings and the award of substantial indemnity costs, dismissing the appeal.

The appellants sought leave to amend their statement of claim to add a law firm and a former partner as defendants, alleging breach of fiduciary duty and negligence arising from a share purchase agreement.

The motion judge dismissed the motion, finding the claims were barred by the two-year limitation period under the Limitations Act, 2002.

The Court of Appeal upheld the decision, noting the appellants failed to provide evidence of due diligence to rebut the presumption of knowledge under s. 5(2) of the Act.

The appeal was dismissed with costs.

The appellant estate appealed the dismissal of its claim that the respondent husband was unjustly enriched by the operation of his right of survivorship over farm properties held in joint tenancy with his deceased wife.

The Court of Appeal dismissed the appeal, finding no absence of juristic reason for the enrichment, as it arose by operation of law and was consistent with the parties' expectations to keep the farm properties together.

Arguments for a constructive trust based on wrongful conduct and proprietary estoppel were also dismissed.