CITATION: Tonello v. Maher, 2012 ONSC 3758
DIVISIONAL COURT FILE NO.: 65/12
DATE: 20120625
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
SWINTON, NORDHEIMER AND CORBETT JJ.
BETWEEN:
A. EDWARD TONELLO
Solicitor
(Respondent in Appeal)
– and –
JOHN BRAD MAHER and ANN-MAURA DEVELOPMENT INC.
Clients
(Appellants)
In Person
Romesh Hettiarachchi, for the Clients (Appellants)
David B. Hamilton, Intervenor
HEARD at Toronto: June 25, 2012
NORDHEIMER J. (ORALLY)
[1] The appellants appeal from the decision of Low J. dated January 17, 2012 in which she dismissed the application by the appellants to reopen their dispute with the respondent/solicitor over fees to be paid to him.
[2] The application judge determined that the issue of the outstanding fees to be paid to the respondent had been resolved in the course of the assessment proceeding. A document signed by all of the parties and entitled “Minutes of Settlement” was filed at the time of that resolution.
[3] The application judge found that a solicitor and client relationship between the appellants and the respondent had been acknowledged at the time of the assessment hearing. She also found that the contents of the Minutes of Settlement removed any remaining argument by the appellants that the agreed upon fees were too high. The application judge concluded that both issues were res judicata and that it would be an abuse of process to now permit the appellants to raise either argument.
[4] Whether or not the issues are properly characterized as res judicata, it is clear from the Minutes of Settlement that the appellants acknowledge being clients of the respondent. The appellants are characterized as the “clients” in the settlement agreement and they both signed the agreement. The whole purpose of the settlement agreement was to agree on the amount of the fees that were to be paid. Given those acknowledgements, we agree with the application judge that it would be an abuse of process for the appellants to now be permitted to assert the opposite. Simply put, the settlement of an assessment under the Solicitor’s Act is not itself subject to assessment.
[5] The appellants also contend that it would bring the administration of justice into disrepute if the Court failed to scrutinize the settlement agreement for fairness and reasonableness. The appellants had their opportunity to have the issue of the fairness and reasonableness of the fees determined through the assessment process. They chose to resolve that process through their settlement. Contrary to appellants’ position, to now allow that issue to be revisited is the route that would bring the administration of justice into disrepute.
[6] The appellants also contend that the terms of the settlement agreement are ambiguous. We see no merit in that contention. The settlement agreement is clear. If the appellants paid $18,000 by specified dates the matter was concluded. If that amount was not paid as required then the respondent was entitled to enforce the certificate of assessment that was for a larger amount. In essence, the settlement provided the appellants with a discount if they paid their obligations in a timely fashion.
[7] In the end result, we agree with the conclusion reached by the application judge. The appeal is dismissed.
SWINTON J.
[8] I have endorsed the Appeal Book, “This appeal is dismissed for oral reasons delivered today by Nordheimer J. Costs to the respondent fixed at $2,500 all inclusive.”
NORDHEIMER J.
SWINTON J.
CORBETT J.
Date of Reasons for Judgment: June 25, 2012
Date of Release: June 27, 2012
CITATION: Tonello v. Maher, 2012 ONSC 3758
DIVISIONAL COURT FILE NO.: 65/12
DATE: 20120625
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
SWINTON, NORDHEIMER AND CORBETT JJ.
BETWEEN:
A. EDWARD TONELLO
Solicitor
(Respondent in Appeal)
– and –
JOHN BRAD MAHER and ANN-MAURA DEVELOPMENT INC.
Clients
(Appellants)
ORAL REASONS FOR JUDGMENT
NORDHEIMER J.
Date of Reasons for Judgment: June 25, 2012
Date of Release: June 27, 2012