COURT FILE NO.: 488/07

DATE: 20080313

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

CARNWATH, MOLLOY AND LAX JJ.

B E T W E E N:

ALLAN BEITEL

Appellant

• and -

THERESA SIMONE

Respondent

In Person

In Person

HEARD at Toronto: March 13, 2008

CARNWATH J.: (Orally)

1Dr. Beitel retained Ms. Simone. She received a retainer of $15,000 from Dr. Beitel`s solicitor, Mr. Flak, the funds coming from his trust account.

2The solicitor/client relationship between Dr. Beitel and Ms. Simone ended and Ms. Simone prepared an account for $8,843.55. She retained the sum and returned the balance of the retainer, $6,156.45 to Mr. Flak as she was required to do by law.

3Dr. Beitel had Ms. Simone’s account assessed by an Assessment Officer. The Officer reduced Ms. Simone’s account to $2,958.55. He found further she owed Dr. Beitel $5,885 out of the funds that she had retained plus interest of $129.57 plus costs of $500. These sums came to $6,514.57 which Ms. Simone paid to Dr. Beitel, leaving her with $2,328.98.

4Dr. Beitel appealed the assessment to a judge of the Superior Court, E. Macdonald J. She found no error in the assessment, confirmed it and dismissed the appeal. Dr. Beitel then purported to bring a motion disputing the results of matters to that point. The motion was heard by Thorburn J. She confirmed the decisions of the Assessment Officer and of E. Macdonald J.

5Dr. Beitel now questions the validity of the retainer, saying the Assessment Officer had no jurisdiction to assess the account because the retainer was invalid. This was not argued at the assessment by Dr. Beitel’s counsel nor was it argued before E. Macdonald J. Argument was addressed to the amount of the account which Dr. Beitel’s counsel said should be reduced to zero.

6Dr. Beitel cannot now dispute the nature of the retainer. In any event, the plain wording of the retainer does not support Dr. Beitel’s submission before us on this point.

7We find no error in fact or law in the decisions of the Assessment Officer, E. Macdonald J. nor Thorburn J.

8We find the appeal to this Court to be entirely devoid of merit. The appeals are dismissed.

CARNWATH J.

9The Compendium is endorsed as follows: “These appeals are dismissed for oral reasons given by Carnwath J. in Court. There will be costs to the respondent fixed on a partial indemnity basis of $4,000 inclusive of fees, disbursements and GST payable 30 days”.

CARNWATH J.

MOLLOY J.

LAX J.

Date of Reasons for Judgment: March 13, 2008

Date of Release: March 20, 2008

COURT FILE NO.: 488/07

DATE: 20080313

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT