COURT FILE NO.: 663/04

DATE: 20050715

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

MEEHAN, MOLLOY AND SWINTON JJ.

B E T W E E N:

CHUNG JIN PARK

Chung Jin Park, in person

Appellant

• and -

NEIL PERRIER and ADAIR, MORSE LLP

Michael Jordan, for the Respondents

Respondents

HEARD at Toronto: June 8, 2005

MEEHAN J.: (Dissent)

1This is an appeal from the Order of Madam Justice Backhouse dated December 3, 2004 dismissing Mr. Park’s appeal from the Order of the Assessment Officer dated September 13, 2004.

2There was, as well, a motion brought for leave before the Honourable Mr. Justice Jennings dated February 10, 2004 and he decided that the Order of Madam Justice Backhouse was a final order so that leave was not necessary and thus, the matter proceeded before us.

3The Appellant brought two cases to a law firm Adair Morse LLP and more particularly, Mr. Neil J. Perrier, for the purpose of obtaining an opinion as to whether those lawsuits had any merit since the lawyer for Mr. Park at that time, one Kenneth E. Howie, had suggested that there were difficulties with those lawsuits and that they should be probably settled in that he had obtained the sum of $10,000 to be directed towards settlement of the actions.

4It appears that Mr. Park had dismissed an earlier lawyer and had dealt with Mr. Howie on these cases for some time.

5Mr. Park’s position on the appeal was that he had given a deposit of $3,500 to the law firm and he had been promised that if they did not take his cases, they would just charge him $200 and return the balance of the deposit money to him. In his material, Mr. Park accused the law firm of embezzlement, cheating and fabricating the contents of a Client Ledger. In his Factum, Mr. Park quarrels with various entries in the Client Ledger and quarrels with whether certain time charges were correct. He also indicates that, in his opinion, they did not intend to take his cases from the beginning but were only intending to make money by giving roughly the same opinion as was given to him by Mr. Howie. Apparently, as well, one of these cases involved a dental malpractice action brought by Mr. Park.

6In his Factum before us, the Appellant indicates that he did not understand the retainer and authorization at the time it was signed on September 8, 2003.

7At the hearing of the appeal, the issue of the Assessment Officer’s jurisdiction to deal with this matter was raised by the panel. The Respondent law firm was given a limited time to reply to the subject of jurisdiction and, as well, upon questioning by the panel, counsel produced a claim in the Small Claims Court where Mr. Park sued the law firm for the return of his monies and, as well, damages.

8This action was apparently started after he began the claim for assessment in the Superior Court. At a pre-trial hearing in the Small Claims Court, the matter was stayed to await the decision of the Assessment Officer. There was, as well, a pre-hearing conference before the matter was dealt with by the Assessment Officer.

The Appeal Hearing

9It is my view that a panel sitting on appeal should be reluctant to raise issues which have not been raised by the parties appearing on appeal.

10In this matter, the proceeding for assessment was brought by the client. The issue of jurisdiction was not raised in any of the four hearings which took place before the matter came to the appeal panel.

11There was nothing in the material which was before the Court to indicate that there were other separate litigation proceedings taking place. Counsel for the Respondent law firm, in response to a question, very properly indicated there was and provided the Court with a copy of the claim.

Proceedings before the Assessment Officer

12It is necessary to examine the record of proceedings before the Assessment Officer to decide whether there was an issue as to his jurisdiction. As I already indicated, there was a previous pre-assessment hearing and apparently there was no issue raised there as to jurisdiction. Before the Assessment Officer, in the usual fashion, the law firm was called first. The member of the firm proceeded to give evidence and he described his relationship with Mr. Park and he described the material on which he had investigated the validity of Mr. Park’s claims before he reached roughly the same conclusion as the redoubtable Mr. Howie.

13He also provided his firm’s records and notably a written Retainer and Authorization. That Retainer and Authorization is completely reproduced as follows:

“RETAINER AND AUTHORIZATION

To: ADAIR MORSE LLP

Barristers and Solicitors

One Queen Street East

Suite 810

Toronto, Ontario

M5C 2W5

I, Chung Jin Park, hereby authorize and instruct, ADAIR MORSE LLP, Barristers and Solicitors, One Queen Street East, Toronto, Ontario, M5C 2W5, to provide an opinion letter regarding the merits of proceeding with the following matters:

Chung Jin Park v. Belitz et. al. and Wawanesa Insurance Company

Court File No. 00-CV-184760

Chung Jin Park v. Young II Lee

97-SR-116614

I also authorize and instruct you to deposit any trust money received by you in an interest-bearing term deposit with a chartered bank or provincial savings office or registered trust company if in your discretion it is in the interest of the undersigned that you do so.

I also acknowledge and understand that Adair Morse LLP have not been retained to act as our counsel in relation to the above matters.

I have been advised that there will be an additional charge for disbursements and understand that we will be responsible for out-of-pocket expenses incurred on my behalf such as postage, long distance telephone charges, court filing fees, and expert reports, and other disbursements.

I acknowledge that all interim accounts rendered for fees and disbursements in connection with the above noted matter must be paid when rendered. I further acknowledge that if the accounts rendered remain unpaid, then Adair Morse LLP, upon fifteen days written notice, may at its own discretion, cease work in connection with this matter.

DATED at Toronto, Ontario this 8^th day of September, 2003.

WITNESS: )

_____________________________ )__________________________________

) CHUNG JIN PARK”

14It is plainly a retainer to provide a written opinion letter in relation to the motor vehicle accident and what is apparently a claim for dental malpractice.

15Mr. Perrier gave evidence before the Assessment Officer and described the Retainer and Authorization which was entered as an exhibit. Although the Assessment Officer was having some difficulty with the interpreter, the matter proceeded. Mr. Perrier explained that, in due course, he attended at the office of Thomson Rogers and reviewed the file. He then produced the Opinion Letter dated December 19, 2003 which reviewed the history of the proceedings and the fact that Mr. Park had retained Mr. Freedman before retaining Mr. Howie and reviewed the problematical testimony of Mr. Park and the difference between some accounts of the accident, and as well, the fact that he was not eligible for certain rehabilitation benefits. Apparently, one of the major problems with the accident claim was there were no other witnesses to the car accident and, as well, there was the difficulty that while Mr. Park indicated he was unable to complete school as a result of the motor vehicle accident, the Seneca College records indicated that he had been expelled for disciplinary reasons dealing with an examination he had written. Exhibit #4 is a copy of a letter returning the balance of the funds, $1,327. He also produced a Client Ledger which was noted as Exhibit #5.

16Mr. Perrier’s evidence at that hearing indicated that Mr. Park had given evidence for discovery in English. Further, his various reports of the accident were given to the self reporting collision centre, and as well, the interviews with that solicitor were conducted in English.

17The experience and expertise of the solicitor, Mr. Perrier, was led in evidence before the Assessment Officer and Mr. Park had the opportunity to cross-examine the lawyer. Various items were canvassed on cross-examination, including the delay in receiving the opinion letter, some difficulties of communication when Mr. Park was in Korea and the history of the parties where Mr. Perrier finally did not accept calls from Mr. Park any longer because he considered them aggressive.

18As well, Mr. Perrier described the letter from another law firm asking if he was representing Mr. Park at an upcoming arbitration that he was unaware of and he indicated that he had not been retained for that purpose. Mr. Perrier specifically indicated that he would start to work on his behalf when the trust retainer was received by the firm.

19Mr. Park then testified through the interpreter. He indicated that he had two actions going on: one about the car accident and the other a dental problem, and that he was already on disability benefits. He indicated his previous lawyer was negligent and thus, he had changed to Mr. Howie. Then, he dealt with Mr. Perrier. He indicated, as well, that he had “other experience before with the lawyers”. The Assessment Officer, quite properly, indicated that he was not interested in other lawyers.

20Mr. Park indicated that he had a promise from Mr. Perrier that Mr. Perrier would only charge him $200 if he was not going to take the cases. He accused Mr. Perrier of ignoring general ethics and morals and being a lawyer of no conscience. He was cautioned by the Assessment Officer not to fire off a bunch of insults.

21In cross-examination, Mr. Park indicated that he communicated at all times with the law firm in English and that he did not think it was necessarily true that the lawyer had to review Thomson Rogers’ file to provide an opinion. Mr. Park also indicated that he had the written retainer with his signature on it but that he did not read it. When asked again whether he did not read the Retainer and Authorization, he said: “I signed it but I didn’t read it”.

22Upon completion of the evidence, reasons for the assessment were given somewhat later in the day by the Assessment Officer. Those reasons may be found at page 39 of the Assessment Hearing transcript. The Assessment Officer noted the form of Retainer and Authorization. He noted that the client acknowledged he had signed it and he found specifically that the witness, Ms. J. Farquharson, was present when it was signed, contrary to the evidence of Mr. Park.

23The Assessment Officer proceeded to deal with the issue of Mr. Park’s difficulties with the English language and found that there was ample opportunity after September 8, if he had difficulty with the Retainer, to seek assistance or clarification and he did not do so.

24He reviewed the evidence of Mr. Park that the solicitor had agreed to charge only $200 if the firm was not retained as counsel. He indicated there was no record of any prior question or challenge or objection to support that theory which was apparently advanced for the first time at the hearing before the Assessment Officer. He also dealt with the question that the solicitor had testified that he would charge $250 an hour and that was not challenged by Mr. Park.

25The Assessment Officer then reviewed the history of the motor vehicle accident where Mr. Park claimed to have crawled to a telephone booth and dialed 911 and then crawled home, but that there were no witnesses to the collision and there was apparently no record of the 911 call. When Mr. Belitz, the alleged driver, was charged, he was acquitted. He also found specifically that it appears that all of the solicitor’s entries were charged at the rate of $250 per hour which was the rate he had quoted to the client at the outset. He found specifically against Mr. Park’s claim that there was an unreasonable delay and he also found that it was necessary for the solicitor to review Mr. Howie’s file. In conclusion, he indicated that he was satisfied the client received the opinion that he retained the solicitors to give and he found no reason to make any reduction in the account, either for fees or disbursements, and, “I am not satisfied with any of the objections raised by the client who seems to have conjured up some new theories which are not borne out by any of the facts which were presented by any of the evidence before me, so the account will be assessed as rendered”. In conclusion, Mr. Perrier somewhat surprisingly, considering the allegations made against him, asked for no costs on the assessment.

26At the time the Divisional Court dealt with the matter, the costs given against Mr. Park by Backhouse J. had not been paid. However, there is evidence in the file that he is on social assistance.

The Law

27Section 3(b) of the Solicitors’ Act, R.S.O. 1990 c. S. 15 states:

3. Where the retainer of the solicitor is not disputed and there are no special circumstances, an order may be obtained on requisition from a local registrar of the Ontario Court (General Division),

(b) by the client, for an assessment of a bill already delivered, within one month from its delivery.

28Only a real dispute as to the retainer ousts the jurisdiction of the assessment officer. (Whiteacre and McGregor et al (1980), 19 C.P.C. 279)

29If the dispute is only a dispute as to the amount recoverable, this will also allow the assessment officer to proceed. (Aird & Berlis v. Federchuk, 34 O.R. (3d) 406).

30Tory Tory DesLauriers & Binnington v. Bradburn, [1992] O.J. No. 1200, an old decision of mine, dealt with an appeal from a Master on the issue of whether a retainer exists and the issue of the determination of terms of a retainer. The fact situation in that case was somewhat different since the clients were lawyers and had, in their opinion, retained the law firm to have the defence of the action against them for negligence handled by the Law Society or perhaps more properly the insurers of the Law Society. The issue as to the retainer and its purpose was raised before the assessment officer by the clients and she specifically declined to deal with that issue and only dealt with the monetary issues on the assessment. The matter then went to the Master who indicated she had the power to determine that there was a retainer and to interpret its terms and, in my judgment, I ruled he was in error.

31In Aird & Berlis v. Federchuk, supra, a decision of Molloy J., she interpreted the phrase “retainer of the solicitor is not disputed” as not including disputes with respect to the existence or terms of a retainer but including disputes which are solely with respect to quantum. In that case, there was originally a written retainer and then the law firm indicated that after that, they were asked to do original work and they were of the view that that was over the original retainer. The alleged second retainer was not in writing. The client, Ms. Federchuk, did not deny that they were authorized to perform the work but disputed that there was any different or additional retainer relating to the later work. In that case, Molloy J. found that although there was a dispute as to the existence of a second retainer, that the matter was properly within the jurisdiction of the assessment officer.

32In Wasauksing First Nation v. Wasauksing Lands Inc., [2004] O.J. No. 810 (C.A.) heard on April 2 and 3, 2003. At para 102, the Court indicated:

The ordinary rule is that a party cannot raise a new issue on appeal. An appellate court may depart from this ordinary rule and entertain a new issue where the interests of justice require it and where the court has a sufficient evidentiary record and findings of fact to do so.

33While in this case the issue raised by the court during the argument of the appeal was one of jurisdiction, in my view, it should be a discretion exercised only in the clearest of cases.

Analysis

34The transcript of the hearing before the Assessment Officer indicates that the solicitor testified. He produced a written retainer. He produced his firm records. He was cross-examined by Mr. Park so that at the end of his testimony, there was no issue as to the existence of a specific retainer other than the written retainer.

35In his testimony, Mr. Park raised, according to the Assessment Officer, for the first time in his material the issue of the alleged oral agreement limiting the scope of the written retainer. There may well be other circumstances which could arise towards the end of a hearing which would deprive the hearing officer of jurisdiction. They would ordinarily only be of the nature of extra ordinary circumstances.

36In the ordinary course of legal events, the parole evidence rule operates to prevent the variation of written agreements generally by an allegation of an earlier oral agreement which is not reflected in the written agreement.

37Mr. Park’s testimony before the Assessment Officer was that he did not read the retainer before he signed it. He later testified that he did not understand it. His material before the panel on appeal was that he did not understand it.

38The issue of the solicitor’s hourly rate was never contradicted by him and if one examines that hourly rate at $250 per hour, then one wonders how an opinion letter which would involve the examination of another solicitor’s files could be limited to the amount as testified to by Mr. Park.

39In any case, the Assessment Officer heard the parties. The record discloses that at that hearing, Mr. Park also accused the solicitor of various types of criminal conduct and the Assessment Officer heard the evidence and he chose to believe the solicitor who had documentary evidence as well to corroborate his version.

40In my view, an oral allegation of another retainer other than the one produced by the solicitor could only be based upon credible evidence given by Mr. Park. In the circumstances, the Assessment Officer did not believe that evidence and, as a result, he found that Mr. Park had not been overcharged nor had he been defrauded by the solicitors.

41At the hearing on appeal, the unfortunate solicitor was only given 15 or 20 minutes to prepare a response to the jurisdiction question which is not uncomplicated in the circumstances since it involves an assessment of evidence and the legal questions at issue. His position, given to the court, was that the matter was raised before the Assessment Officer in the evidence of Mr. Park in the latter part of the hearing. The Assessment Officer did not believe Mr. Park and thus, there was no issue as to another retainer or a variation of the written retainer. The only issue then remaining for Mr. Park was the issue of overcharging false, docket entries and so on, all of which were dealt with by the Assessment officer.

Conclusion

42In my view, there was ample evidence on which the Assessment Officer could find there was no other agreement other than the written retainer at issue in this case. Because of the nature of the finding of the majority of the court, it is not necessary for me to comment on the upholding of the Assessment Officer by Madam Justice Backhouse on the merits except to indicate that it is my view that there is no real issue as to the jurisdiction of the Assessment Officer to deal with this matter in the circumstances of this case.

43It is my view that the proceedings should have continued before the appeal panel and dealt with the issue of whether Madam Justice Backhouse was in error in not allowing the appeal from the Assessment Officer.

MEEHAN J.

Released: July 15, 2005

MOLLOY J.:

REASONS FOR JUDGMENT

The Appeal

1Chung Jin Park appeals from a decision of Backhouse J. dated December 3, 2004. Backhouse J. had dismissed Mr. Park’s appeal from the report of Assessment Officer Heighington dated September 13, 2004, assessing the solicitor and client account rendered by Neil Perrier and Adair, Morse to Mr. Park at $2,172.74. For the reasons set out below, Mr. Park’s appeal is granted and the decisions of Backhouse J. and the Assessment Officer are quashed, on the grounds that the Assessment Officer lacked jurisdiction to conduct the assessment.

2The subject matter of the assessment was a final account rendered by Adair, Morse on January 8, 2004 in the amount of $2,000.00 for fees, plus disbursements and GST, for a total of $2,172.74. The account was for a written legal opinion provided by the law firm to Mr. Park dated December 29, 2003. The firm had taken a $3,500.00 retainer from Mr. Park. Upon rendering its account, the firm deducted the outstanding fees from the monies held and remitted the balance of $1,327.26 to Mr. Park.

Factual Background

3Mr. Park commenced two civil actions in the Superior Court: one in 1997 relating to a dental malpractice claim and the second in 2000 for personal injuries allegedly sustained by Mr. Park when he was hit by a car while walking across a Toronto street. Prior to September 2003, Mr. Park was represented in both actions by the law firm Thomson Rogers.

4Mr. Park alleges that on September 8, 2003, he consulted Neil Perrier (who was then an associate lawyer with Adair, Morse) about Mr. Perrier taking carriage of these two actions. According to Mr. Park, Mr. Perrier required a deposit of $3,500.00 before he would look at the files. Mr. Park paid the required financial retainer on September 30, by drawing funds on his credit card. Mr. Park alleges that Mr. Perrier told him he would review his cases. If his firm agreed to take the matters on, he would charge Mr. Park at an hourly rate. However, if the firm decided against acting for Mr. Park, then he would only charge Mr. Park $200.00 for having reviewed the matter.

5Mr. Perrier alleges that Mr. Park retained him to provide a legal opinion on the merits of the two civil actions in which he was a plaintiff. He further alleges that he told Mr. Park that he would charge him for the opinion at a rate of $250.00 an hour. He then reviewed the files held by Mr. Park’s previous law firm, wrote the opinion letter and rendered an account, in which he charged the agreed upon rate of $250.00 per hour for his time.

6At the initial meeting on September 8, 2003, Mr. Park signed a written retainer agreement, which was witnessed by one of the law firm’s secretaries. The written retainer provides that the firm is retained to provide an opinion letter on the merits of the two actions, which are specifically listed. The written retainer is consistent with the position taken by Mr. Perrier and inconsistent with the position taken by Mr. Park. Mr. Perrier alleges that the retainer agreement was explained fully to Mr. Park and that Mr. Park indicated he understood it.

7All of the discussions between Mr. Perrier and Mr. Park were in English and the retainer agreement is in English. Mr. Park is Korean. He asserts that his skills in the English language are limited and that he did not understand the agreement he signed, although he does acknowledge signing it. According to Mr. Park, he thought the agreement he signed was simply confirming what Mr. Perrier told him, which was that if the firm decided not to act for him, they would give him back $3,300.00 from the deposit he paid.

8Mr. Perrier reviewed the files held by Thomson Rogers on November 17, 2003 and prepared a legal opinion. That opinion is dated December 29, 2003 and relates to only one of the two actions, the 2000 action involving the motor vehicle/pedestrian accident. Essentially, Mr. Perrier advised Mr. Park that in his opinion credibility would be a significant factor in the action and that there were inconsistencies in Mr. Park’s evidence which would make his case difficult to prove. Mr. Perrier strongly recommended that Mr. Park accept the defendant’s $10,000.00 offer to settle. The opinion letter indicates that the firm’s account is enclosed. The account itself was dated January 8, 2004 and is headed “RE: OPINION – DENTAL MALPRACTICE AND MVA”.

9Shortly after receipt of the opinion and account, Mr. Park applied under s. 3(b) of the Solicitor’s Act for an assessment of the account. The Registrar issued an Order dated January 30, 2004 referring the matter of Mr. Perrier’s account to an assessment officer. However, it was some time before the assessment was actually scheduled.

10In the meantime, frustrated by the delay, Mr. Park commenced an action in the Small Claims Court on July 5, 2004 seeking damages of $6,000.00 against Mr. Perrier and Adair, Morse. The statement of claim recites essentially the same allegations as I have outlined in paragraph 4 above. Further, Mr. Park alleges that the defendants acted fraudulently in the matter. He seeks to recover: $2,172.74 taken by the firm from the retainer for its fees; $65.00 for assessment court costs; $40.00 for court costs; and $3,712.26 for “physical, mental and economical damages”.

11On August 16, 2004, a pre-trial hearing was held in the Assessment proceeding, at which time the law firm Adair, Morse was added as a party. The assessment hearing was scheduled to proceed on September 13, 2004, although it is not clear from the record when that date was set.

12On August 19, 2004, a pre-trial was held in the Small Claims Court action. At that time, at the request of the defendants, an Order was made staying the Small Claims Court action because of the outstanding assessment proceeding.

Statutory Authority for the Assessment

13The referral of this matter to an assessment was obtained by requisition under s. 3(b) of the Solicitor’s Act, which states:

3. Where the retainer of the solicitor is not disputed and there are no special circumstances, an order may be obtained on requisition from a local registrar of the Ontario Court (General Division),

(b) by the client, for an assessment of a bill already delivered, within one month from its delivery. (emphasis added)

14If there is a dispute with respect to the solicitor’s retainer, the assessment officer has no jurisdiction to proceed. Rather, the assessment officer’s sole jurisdiction is to determine the appropriate quantum of the solicitor’s account. A dispute about the solicitor’s retainer can only be resolved through the ordinary remedy of civil litigation, rather than through the assessment process: Whiteacre v. McGregor (1980), 19 C.P.C. 279 (Ont.Div.Ct.).

15The assessment officer not only lacks jurisdiction to determine whether a retainer exists, but also lacks jurisdiction to determine the terms of a retainer. In Tory, Tory, DesLauriers & Binnington, [1992] O.J. No. 1200 (Gen.Div.), Meehan J. considered an appeal from a Master on this issue. The Master had held that an assessment officer had the authority to determine if there was a retainer and to interpret its terms. This was reversed on appeal by Meehan J. who held that the issue should have been referred to a judge “who could deal with any findings of credibility etc. on whether a contract existed and the specific terms of the contract if a contract was found to have existed.”

16There are two qualifications on this general principle that an assessment officer has no jurisdiction to determine the terms of a retainer between the solicitor and client. First, it is only a bona fide dispute as to the retainer that will oust the jurisdiction of the assessment officer: Whiteacre v. McGregor, supra. Second, if the nature of the dispute is really only a dispute as to the quantum recoverable, this will be within the jurisdiction of the assessment officer: Aird & Berlis v. Federchuk (1997), 1997 12167 (ON SC), 34 O.R. (3d) 406 (Gen.Div.). I will deal with the extent of these qualifications in more depth below in considering whether they have any application in this case.

The Decisions of the Assessment Officer and of the Appeal Judge

17The assessment hearing proceeded before Assessment Officer Heighington on September 13, 2004. Mr. Perrier testified on behalf of the firm and Mr. Park testified on his own behalf. Mr. Park was not represented by counsel, but he did have a Korean translator for the hearing. The issue of the jurisdiction of the assessment officer to determine the terms of the retainer was not raised. At the conclusion of the evidence, the Assessment Officer found that the solicitor’s account was fully recoverable as charged and delivered oral reasons for that decision

18The Assessment Officer considered and rejected the evidence of Mr. Park that he did not understand the terms of the written retainer agreement. He found that Mr. Park’s command of English was sufficient for him to understand his conversations with Mr. Perrier, the retainer agreement itself and the opinion letter. He held that the written retainer accurately reflected the terms of the agreement between Mr. Park and the law firm and rejected Mr. Park’s testimony that Mr. Perrier had agreed that if the firm decided not to act for Mr. Park, they would only charge him $200.00. He stated, at pages 48-49 of the transcript:

In the circumstances I am satisfied that the client received the opinion that he had retained the solicitors to give, and I see no reason to make any reduction in the account of the solicitors, either for fees or disbursements. I am not satisfied with any of the objections raised by the client, who seems to have conjured up some new theories which are not borne out by any of the facts which were presented by any of the evidence before me, so the account will be assessed as rendered.

(Emphasis added)

19Mr. Park appealed from the Assessment Officer’s report, which appeal was dismissed by Backhouse J. on December 3, 2004. Mr. Park was not represented by counsel on that appeal, and he did not have a translator present. The issue with respect to the Assessment Officer’s jurisdiction was not raised on the appeal. In a brief handwritten endorsement, the appeal judge dismissed the appeal, stating:

I have read the transcript from the assessment and heard the plaintiff’s submissions. I am satisfied that the factors taken into account by the assessment officer were proper and that there is no merit to the plaintiff’s allegations that the agreement with the solicitor was that he would charge only $200 from the $3500 retainer for rendering an opinion. The appeal is dismissed with costs fixed in the amount of $500 payable by the plaintiff to Adair, Morse within 30 days.

(Emphasis added)

20It is clear from the reasons of the Assessment Officer that he did in fact determine the nature of the agreement between the solicitor and the client. Mr. Park’s position was that the firm was going to consider whether it would act for him, which was why he was providing the retainer. If the firm did decide to take on his case, they would charge for their time. However, if upon considering the matter the firm decided not to take him on as a client, he would only be charged $200. The Assessment Officer considered that evidence and rejected it. He found it to be inconsistent with the written agreement signed by Mr. Park. He further found that Mr. Park understood the terms of that written agreement. He accepted the evidence of Mr. Perrier as to the terms of the retainer and held that the firm was retained to review the files and render a legal opinion as to the merits of the actions for a fee of $250 per hour.

21Mr. Perrier and Mr. Parks gave quite different versions of the nature of the agreement between them. The Assessment Officer chose between those two versions, taking into account issues of credibility and the terms of the written agreement. His decision was a decision on the merits as to the terms of the agreement. This, in my view, goes beyond the jurisdiction of an assessment officer.

22This was not merely a dispute as to quantum as contemplated in my 1997 decision in Aird & Berlis v. Federchuk, supra. In that case, the client acknowledged that all of the work performed by the solicitors was contemplated by the retainer. The only dispute was with respect to what the client could be charged for that work. In this case, the very nature of the retainer itself is in dispute. Mr. Perrier testified he was retained solely for the purpose of providing a second opinion as to the merits of the actions in which Mr. Park was involved. Mr. Park testified he wanted to retain the firm to act for him, they were reviewing the files for that purpose, and would only charge him $200.00 if they decided not to act for him. While, on Mr. Park’s scenario the firm would still be considering the merits of the actions, the underlying premise for the retainer is allegedly quite different.

23Further, the Assessment Officer went beyond merely considering whether the dispute with respect to the retainer was a bona fide one as contemplated in Whiteacre v. McGregor, supra. A client cannot avoid the assessment procedure by a bare allegation of disputed retainer. The dispute must be a legitimate one, and an assessment officer is empowered to make a limited inquiry to determine if that test is met. There is no case law defining that test. However, at the very least, if the evidence with respect to the disputed retainer would survive a Rule 20 summary judgment test, then it is a bona fide dispute as to the retainer. In this case, there is a conflict in the evidence which would require findings of credibility to resolve. There is a written agreement consistent with the evidence of the solicitor. However, the client alleges he did not read that retainer and did not understand its terms. He is not fully fluent in English. It is at least arguable that he did not understand the written agreement and was relying on the advice of the solicitor as to its terms. There is a fiduciary relationship between the solicitor and client and an onus on the solicitor to ensure that the client understands what he is signing, particularly where an inability to understand the language may be a factor. The terms and scope of the retainer, the oral representations made by the solicitor and whether Mr. Park is bound in these circumstances by the written retainer he signed, are all issues that would survive a summary judgment motion. Because of the conflicting evidence, the need for credibility findings and the importance of cross-examination to make those findings, a decision maker on this preliminary point would conclude that trial would be required to resolve the dispute between the parties as to the nature of the retainer. The analysis of the Assessment Officer in this case should have stopped at that point. A bona fide dispute with respect to the terms of the retainer had been raised. However, what the Assessment Officer did in this case was to take that extra step and actually conduct a trial on that issue. That step was outside his jurisdiction.

24It is also clear from the reasons of the judge on appeal that she was concurring in the Assessment Officer’s conclusion on the merits with respect to the terms of the agreement.

Conclusion

25It is irrelevant that Mr. Park himself initiated the assessment process. Likewise, it is irrelevant that the jurisdictional issue was not raised by either party at the assessment hearing or at the appeal from the assessment hearing. The issue was first raised by this Court at the argument of this appeal and both parties were given an opportunity to review the law and respond. The failure of either party to raise this issue below cannot give jurisdiction to the Assessment Officer to make the decision he did. He either had jurisdiction or he did not. In this case, he did not. A decision made without jurisdiction is a nullity and cannot stand. Accordingly, the decision of Assessment Officer Heighington, and therefore also the decision of Backhouse J., must be set aside.

26Mr. Park has been fully successful in that his appeal is allowed. However, the basis upon which he has succeeded was not raised by him. Further, it was Mr. Park who initiated this assessment process in the first place, and that process was inapplicable. Ordinarily, this might be a basis upon which to deny the successful party his costs. However, the fact that Mr. Park commenced the Small Claims Court action in July 2003 substantially alters the situation. Even more importantly, that action was stayed at the behest of the defendant solicitors. The appropriate procedure in the first place was the Small Claims Court action. Further, that action is more comprehensive than the assessment procedure. Mr. Park is unrepresented by counsel. In my opinion, in these circumstances, it is the solicitors who should bear the responsibility for the costs thrown away in the course of the assessment and the appeal therefrom. Accordingly, Mr. Park is entitled to his reasonable out of pocket expenses incurred in attending at the assessment, including the cost of the translator at the assessment hearing. He is also entitled to recover any court filing fees in connection with his initial appeal before Backhouse J. as well as the costs of the transcript of the proceedings before the Assessment Officer.

27After receiving the decision of Backhouse J., Mr. Park mistakenly believed he needed leave to appeal therefrom. He therefore prepared, served and filed a Motion for Leave to Appeal. That motion was heard by Jennings J. on February 10, 2005, who traversed the matter to a full panel of the Divisional Court because leave was not required given that the decision of Backhouse J. was a final order. Jennings J. left the issue of costs on the leave motion to this panel, stating in his endorsement:

Costs of today will be left to the panel hearing the appeal. For its guidance, I note that counsel for the respondent did not before this morning, and then only in response to my question, consider the matter of jurisdiction.

28At the conclusion of the argument of the appeal before this panel, counsel for the respondent, in response to a direct question from me, conceded that he was aware from the outset that Mr. Park did not require leave to appeal from the decision of Backhouse J., that he knew before attending in court on the leave motion that leave was not required and that he deliberately did not bring this to Mr. Park’s attention. Counsel further advised that he came to the motion that day prepared to argue the appeal itself because he knew leave was not required and expected that the entire appeal might therefore be disposed of that day. This is discourteous conduct, to say the least, resulting in extra expense and inconvenience for Mr. Park as well as for the Court. Mr. Park shall be entitled to recover any out of pocket expense incurred as a result of this needless step in the process.

29Finally, with respect to this appeal itself, Mr. Park is entitled to recover the costs of his translator, any court filing costs and the costs of photocopying and binding the materials required for the appeal.

30If the parties are not able to agree on the quantum of costs to be recovered by Mr. Park, written submissions on this point may be addressed to the Court.

31Nothing in this decision is to be taken as a finding, one way or the other, on the merits of Mr. Park’s claim against the solicitors. This decision is based solely on the jurisdiction of the Assessment Officer. Since the Assessment Officer acted without jurisdiction, all of his findings of fact are also of no bearing on the merits of the dispute between the parties.

MOLLOY J.

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