Court File and Parties
COURT OF APPEAL FOR ONTARIO
Doherty, Feldman and Epstein JJ.A.
BETWEEN
Kulidjian & Associates
Appellant
and
Gareene Homes Inc.
Respondent
Counsel: Gleb Bazov, for the appellant M. Persaud and J. Morton, for the respondent
Heard and released orally: March 10, 2011
On appeal from the order of Justice J. Kelly of the Superior Court of Justice, dated February 9, 2009.
ENDORSEMENT
1In Price v. Sonsini (2002), 2002 CanLII 41996 (ON CA), 60 O.R. (3d) 257 at para. 19, Justice Sharpe discussed the approach to be taken when clients seek to assess their lawyers’ bills. He said:
Public confidence in the administration of justice requires the court to intervene where necessary to protect the client’s right to a fair procedure for the assessment of a solicitor’s bill. As a general matter, if a client objects to a solicitor’s account, the solicitor should facilitate the assessment process, rather than frustrating the process.
2We take the words of Sharpe J.A. to sound the purpose behind the assessment provisions in the Solicitors Act, R.S.O. 1990, c. S.15 (“the Act”).
3In Enterprise Rent-A-Car Co. v. Shapiro, Cohen, Andres, Finlayson (1998), 38 O.R. (3d) 57 (Ont. C.A.), Labrosse J.A. of this court described the scope of s. 3 of the Act in these words:
A client may apply for the assessment of delivered accounts in the following circumstances:
(i) upon requisition from the registrar, within thirty days of delivery (provided that there are no special circumstances and the retainer is not disputed). There is no distinction between paid and unpaid accounts (s. 3(b)). [Emphasis added.]
4On the analysis in Enterprise Rent-A-Car Co., supra, the respondent was entitled to proceed in the manner that it did.
5We do not read the two subsequent cases from this court relied on by the appellant as departing from the analysis in Enterprise Rent-A-Car Co. and, in particular, the interpretation of s. 3(b). In those two cases (Guillemette v. Doucet (2000), 2007 ONCA 743 (C.A.) and Tripkovic v. Glober 92003), 2003 CanLII 43027 (ON CA), 172 O.A.C. 116, 227 D.L.R. (4th) 718 (Ont. C.A.), rev’g 16 C.P.C. (5th) 163 (O.S.C.J.)), s. 3 was not in play. The proposed assessments were long after the 30-day period described in s. 3. The analysis of s. 11 of the Act in those cases does not in any way detract from the comments concerning s. 3 made in Enterprise Rent-A-Car Co.
6We are satisfied that the interpretation of s. 3 in Enterprise Rent-A-Car Co. is the correct interpretation. It is consistent with the, admittedly not altogether clear, wording of the statute. More important, it is consistent with the purpose behind the assessment process as described at the outset of these reasons.
7In our view, ss. 3 and 11 can live together and both have application to paid accounts. Thirty days is the divide between the two provisions for the purposes of determining whether the assessment can be directed by the Registrar.
8We are in agreement with the conclusion reached below and dismiss the appeal.
9The application for leave to appeal the costs order is not pursued in light of our decision on the merits. That motion for leave is refused.
10The appeal is consequently dismissed with costs to the respondent in the amount of $3,000, inclusive of disbursements and HST.
“Doherty J.A.”
“K. Feldman J.A.”
“Gloria Epstein J.A.”
