COURT FILE NO.: 121/09
DATE: 20090914
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
jennings, lederman and aston jj.
B E T W E E N:
DOMENIC MARINI
Appellant
(Defendant)
- and -
TORKIN MANES COHEN ARBUS LLP
Respondent
(Plaintiff)
Jonathan H. Marler, for the Appellant (Defendant)
Jason H. Wang, for the Respondent (Plaintiff)
HEARD at Toronto: September 14, 2009
JENNINGS J.: (Orally)
[1] The motions judge was required to grant summary judgment unless:
(i) he could not decide the issues raised without cross examinations, or
(ii) it would have been unjust to decide the issues on the motion.
[2] There was no dispute that there was a written retainer that the charged amounts rendered pursuant to it were unchallenged by Mr. Marini and that he repeatedly agreed to pay those accounts rendered even after he received the time docket information that he requested.
[3] The appellant in essence submits that it would be unjust to ever grant summary judgment on a claim for solicitor’s fees because the client should be able to have the fairness and reasonableness of the account determined by either a trial judge or an assessment officer.
[4] We do not accept that submission where, as in this case, an assessment was not asked for either in the pleadings or in the notice of appeal. We are not to be taken as saying that in no case is a client unable to change his or her mind about paying a solicitor’s account. However, in this case the motions judge considered Mr. Marini’s affidavit evidence and concluded that “the very vague complaints described by the defendant in his affidavit are clearly afterthoughts intended to impede and delay the plaintiff’s claim.” That was a finding that the motions judge was entitled to make. This is reinforced because the defendant never explained in his material why he repeatedly promised to pay the accounts if he had concerns about the quality of the work done.
[5] We find that the motions judge correctly applied the test for summary judgment under Rule 76.07(9). Accordingly the appeal must be dismissed.
COSTS
I have endorsed the Appeal Book and Compendium, “For oral reasons delivered by Jennings J.
On consent, costs fixed at $7,500.00 inclusive. Judgment may issue in accordance with draft bearing my fiat.”
JENNINGS J.
LEDERMAN J.
ASTON J.
Date of Reasons for Judgment: September 14, 2009
Date of Release: September 17, 2009
COURT FILE NO.: 121/09
DATE: 20090914
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
DOMENIC MARINI
Appellant
(Defendant)
- and -
TORKIN MANES COHEN ARBUS LLP
Respondent
(Plaintiff)
ORAL REASONS FOR JUDGMENT
JENNINGS J.
Date of Reasons for Judgment: September 14, 2009
Date of Release: September 17, 2009