COURT FILE NO.: 509/04

DATE: 20060223

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

O’DRISCOLL, CHAPNIK AND SWINTON JJ.

B E T W E E N:

ARNOLD B. SCHWISBERG Solicitor Respondent/Appellant

• and -

LEONARD KENNEDY, ANNIE KENNEDY, 1209978 ONTARIO INC. and 8421503 ONTARIO LTD. Clients Applicants/Respondents

In Person

Benjamin Salsberg, for the Clients Applicants/ Respondents

HEARD at Toronto: February 23, 2006

o’driscoll J.: (Orally)

1The solicitor appeals to this Court under the provisions of s.19(1)(a)(i) of the Courts of Justice Act, R.S.O. 1990, c.C.43 from the orders of Sutherland J., dated August 20, 2004 and September 21, 2004. By those orders, Sutherland J. dismissed the solicitor’s motion opposing confirmation of the Report and Certificate of Assessment of Assessment Officer Moquin, dated January 9, 2004. The latter order of Sutherland J. awarded costs against the solicitor in the sum of $7,276.00 for the confirmation proceedings before him.

2In his reasons, Sutherland J.:

26“… The Assessment Officer accepted that Kennedy had asked the solicitor to express opinions on matters being handled by other solicitors and that in some cases Kennedy had forwarded documents or letters for comment. She nonetheless disallowed the solicitor’s claims for payment with respect to such “extras”. It is clear that there was no written retainer with respect to such matters. The argument of the solicitor was that when Kennedy forwarded to him a document for review, it was an implicit retainer. I infer that there was no express oral retainer with respect to such matters. The Assessment Officer noted that there had been no interim billing with respect to those matters and that there was not in the record before her any evidence of any spreadsheet or other document sent to Kennedy from which Kennedy might have learned that time was being docketed with respect to such matters. It was noted that the record showed that Kennedy had for years, even in the period when the solicitor was not in private practice but was counsel to a winery company, asked the solicitor for his opinion regarding matters being handled for him by other lawyers. The record does not contain evidence that the clients or any of them were billed for such matters when the solicitor was in private practice.

27Those experiences should have put the solicitor on notice that Kennedy was the sort of client who tended to have limited trust in the lawyers who were acting for him. It was a situation in which, in accordance with authorities referred to above, the solicitor should have protected himself by a written retainer or a warning letter or even a clear oral statement to the effect that the solicitor would be charging for such consultations. Before me it was submitted that the Assessment Officer placed far too much emphasis on the evidence of Kennedy to the effect that he did not expect to be charged for those matters. This is not a question of the expectations of the client as to the amount of a fee but a question of whether any fee ought to be payable for the “extras”. From her reasons it is clear that the Assessment Officer considered the matter carefully before exercising her discretion to disallow the charges for the “extras”. She obviously considered and did not misapprehend the relevant evidence; indeed, she quotes relevant and material evidence in her reasons. She was not clearly wrong. There was no error in principle. In the circumstances, I should, and I do, uphold her decision to disallow the charges for the “extras”.

3The record supports Sutherland J.’s conclusion that the Assessment Officer had considered the relevant evidence, in particular the historical relationship between the parties, and she did not misapprehend the relevant evidence.

4In our view, there was no error in law or in fact in Sutherland J.’s conclusion that the Assessment Officer’s decision was not clearly wrong and there was no error in principle in the Assessment Officer’s decision to disallow the charges for the “extras”. It follows, then, that the appeal is dismissed.

5With the concurrence of my colleagues, I have endorsed the back of the Appeal Book and Compendium as follows: “This appeal is dismissed for the oral/recorded reasons of even date. We asked for submissions as to costs. Counsel for the respondent seeks $7,000.00; counsel for the appellant, that is the solicitor in person, suggests “no costs or $1,500.00 costs”. In all the circumstances, we fix costs at $3,000.00, payable by the appellant to the respondent.”

O’DRISCOLL J.

CHAPNIK J.

SWINTON J.

Date of Reasons for Judgment: February 23, 2006

Date of Release: March 29, 2006

COURT FILE NO.: 509/04

DATE: 20060223

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT