Court File and Parties
COURT FILE NO.: 622/06
DATE: 20080115
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
JENNINGS, KITELEY AND SWINTON JJ.
B E T W E E N:
HAMOODY HASSAN of HASSAN LAW OFFICES Appellant/ Solicitor
- and -
AHMED FAROUK KOTHDIWALA Respondent/ Client
Sharon E. Hassan, for the Appellant/Solicitor Ahmed Farouk Kothdiwala, In Person
HEARD at Toronto: January 15, 2008
Oral Reasons for Judgment
JENNINGS J.: (Orally)
[1] The appellant solicitor appeals from the order of Dyson J., dated November 23, 2006 dismissing the solicitor’s motion to oppose confirmation of the Report and Certificate of Assessment Officer Johnson dated October 4, 2005.
[2] We accept the submission of Mr. Kothdiwala that he chose to retain the solicitor on a block fee basis as set out in the letter agreement of July 30, 2002 signed by the parties and to be found at Tab 14 of the Appeal Book.
[3] We also accept Mr. Kothdiwala’s submission made in argument this morning that his expectation was that the retainer agreement would be followed and that he would be charged fees in accordance with it.
[4] The Statements of Account submitted by the solicitor were, as found by Mr. Johnson, confusing in that they appear to be drawn on a time-spent basis, and then discounted, allegedly to bring them into line with the block fee schedule to the retainer agreement.
[5] The assessment officer found that the retainer agreement was a valid contract between the parties and that they were bound by it. He then deducted $17,000 from the “worst case”scenario of $46,500, provided in the agreement, leaving fees incurred of $29,500.
[6] No quarrel is taken with those findings and that result. The assessment officer then found that the account should be adjusted “for the extra days of examination” (4) over what was contemplated (2) in the schedule to the retainer agreement.
[7] It is apparent, however, that he failed to make that adjustment, and in that respect we find that he erred.
[8] The motions judge expressed his puzzlement about the finding of the need for an adjustment but held that “on the whole I find no error in principle and find that the Reasons are reasonable”.
[9] Regrettably, in our opinion, that finding confirmed the error made by the assessment officer in failing to quantify the adjustment of the extra days of examinations. Had the extra days of examinations been taken into account at the agreed upon rate set out in the retainer, there would be nothing due from the solicitor to the client, as opposed to the sum of $7,543.50 found by the assessment officer to be due.
[10] The appeal is therefore allowed. The Order of Dyson J. is set aside and the report of the assessment officer is varied to show nothing due from the appellant’s solicitor to the client.
COSTS
[11] We have had the advantage of submissions as to costs. We are concerned at the extent that the manner in which the solicitor’s accounts were drawn added to the complexity and length of these proceedings confusing the assessment officer, Dyson J., and indeed, this panel.
[12] That situation could have been avoided had the solicitor drawn his accounts in accordance with his agreement with his client. He must bear the responsibility for that failure.
[13] Taking that into consideration, we do not make any award as to the costs of the motion to Dyson J. or the appeal to this Court.
[14] I endorse the Record as follows: “This appeal is allowed for oral reasons delivered today. No order as to costs”.
JENNINGS J.
KITELEY J.
SWINTON J.
Date of Reasons for Judgment: January 15, 2008
Date of Release: January 21, 2008
COURT FILE NO.: 622/06
DATE: 20080115
ONTARIO SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
JENNINGS, KITELEY AND SWINTON JJ.
B E T W E E N:
HAMOODY HASSAN of HASSAN LAW OFFICES Appellant/ Solicitor
- and -
AHMED FAROUK KOTHDIWALA Respondent/ Client
ORAL REASONS FOR JUDGMENT
JENNINGS J.
Date of Reasons for Judgment: January 15, 2008
Date of Release: January 21, 2008