Court File and Parties
CITATION: Kostyniuk v. Burnell, 2013 ONSC 6705
DIVISIONAL COURT FILE NO.: DC-13-0031
DATE: November 15, 2013
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
MATLOW, MARANGER AND TOSCANO ROCCAMO JJ.
BETWEEN:
KOSTYNIUK & BRUGGEMAN BARRISTERS
Plaintiff/Appellant
– and –
RANDALL KELLY BURNELL AND BURTRO LAWN SPRINKLERS LTD.
Defendants/Respondents
COUNSEL:
John W. Bruggeman, for the Plaintiff/Appellant
Simon Schneiderman, for the Defendants/Respondents
Heard at Brampton: October 22, 2013
ENDORSEMENT
Toscano Roccamo J.
[1] On October 22, 2013 this Court dismissed this appeal, with Reasons to follow, from the Order made November 28, 2012 by Snowie J., dismissing the Plaintiff’s action on a motion brought by the Defendants to amend pleadings and for summary judgment.
[2] The action commenced December 14, 2006 by way of Notice of Action, was for payment of the final account of Robert Kostyniuk delivered April 25, 2008 for legal services rendered between April 2001 and December 22, 2004. The Statement of Claim dated January 12, 2007 was not delivered until June 26, 2008. The Statement of Defence dated August 24, 2009 contains allegations that the action was statute-barred; specifically at para. 12, the Defendants admit that while they were in arrears of payment of the account for more than 30 days, the Statement of Claim was dated January 12, 2007 and the account for services was not delivered until 2008.
[3] The Plaintiff’s chief complaint is that Snowie J. erred by allowing the Defendants’ motion to amend the Statement of Defence so as to allow the Defendants to assert that the action was a nullity for non-compliance with s. 2(1) of the Solicitors Act, R.S.O. 1990, C. s.15. Section 2(1) of the Solicitor’s Act bars action for the recovery of fees and disbursements until one month after the account is rendered. The Plaintiff contends that the amended Statement of Defence offends rule 25.06 of the Rules of Civil Procedure, R.R.O. 1990 Reg. 194 for failure to specify the non-performance of a condition precedent, that being the requirement under the Solicitors Act to wait 30 days after delivery of the final account before an action is commenced. The Plaintiff further contends that the amendment caused prejudice for which there is no available remedy under rule 25.06, by reason of the passage of the two year limitation period in s. 4 of the Limitations Act, S.O. 2002, c. 24, Sched. B. The Plaintiff submits that, had it known that the Defendants would rely on s. 2 of the Solicitors Act, counsel for the Plaintiff could have simply re-issued the claim at the first opportunity in 2009, well within the two-year period following non-payment of their final account. The Plaintiff has alleged that delivery of its account was delayed by reason of an agreement with the Defendants to defer delivery of a final bill until the Defendants were in a position to pay. Due to the existence of the agreement, the Plaintiff states that its claim was not “discovered” until “sometime between 2008 and 2009.”
[4] For the following reasons, the appeal is dismissed.
[5] First, this appeal as it relates to the amendment of pleadings to assert that the action was a nullity, as well as other amendments of lesser importance allowed by Snowie J., constitutes an appeal from an interlocutory order for which leave to appeal is required by s. 19(1)(b) of the Courts of Justice Act, R.S.O. 1990 c. C. 43. Had leave been sought by the Plaintiff, leave would not have been granted, there being no error in law in her conclusion that the Defendants were not obliged to plead nullity, having regard to the allegations found at para. 12 of the Statement of Defence.
[6] Secondly, Snowie J. made no error in law in concluding that this action was barred as a nullity by s. 2 of the Solicitors Act. Longstanding authority establishes that a solicitor must prove that his account was delivered before an action is commenced or the action will be dismissed: see Ridout, One, v. Brown (1835), 4 U.C.Q.B. (O.S) 74; Gould v. Ferguson (1913), 1913 1218 (ON CA), 29 O.L.R. 161 (Ont. S.C. (A.D.)); and Boland v. Bunker Hill Extension Mines Limited, [1944] O. J. No. 28 (ONCA). The requirements of s. 2 of the Solicitors Act, and the prohibition against the charge of interest on unpaid accounts until one month after a bill is delivered, pursuant to s. 33(1) of the Solicitors Act, protects the public in their dealings with members of the legal profession.
[7] The Plaintiff relies on the decision of Lane J. in Clyne v. Armstrong, [1995] O. J. No. 1455 (Ct. J. (Gen. Div.)) granting leave nunc pro tunc to a solicitor to commence an action. This case considers the Court’s jurisdiction under s. 8 of the Solicitors Act, and is of no assistance to the Plaintiff, there being no evidence before Snowie J., as there was before Lane J., that the Defendants were about to abscond from Ontario. Furthermore, Lane J. was not faced with circumstances where the action was barred by the passage of a limitation period.
[8] Snowie J. made no error in law granting summary judgment to the Defendants under Rule 20. Although the Defendants did not file an affidavit in support of the motion for summary judgment, the Plaintiff’s own affidavit and transcripts of cross-examination provided ample basis for Snowie J. to conclude that the terms of an agreement, if any, to defer delivery of the Plaintiff’s account for services rendered were vague and could not be legally enforced for lack of certainty: see Simpson v. Canada (Attorney General), 2011 ONSC 5637; [2011] O. J. No. 4407. It was also open to Snowie J. to find as she did that the solicitor’s retainer was terminated on December 22, 2004 and that the limitation period began to run at that time, there being no evidence upon which she could conclude that the Defendants waived the limitation period. A cause of action arises when the material facts upon which it is based have been discovered or ought to have been discovered by the exercise of reasonable diligence: see Ahmed v. Ontario (2004), 134 A.C.W.S. (3d) 617; and E. P. v. Ontario (2004), 132 A.C.W.S. (3d) 570.
[9] Finally, Snowie J. properly applied the test for summary judgment under Rule 20 as laid out in Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764,108 O.R. (3d) 1. On a full appreciation of the discreet documentary record and other evidence before her, she correctly concluded that the material facts were not in contention, viva voce evidence was not required and that there was no genuine issue requiring a trial.
[10] With respect to costs of this appeal, the Plaintiff takes no issue with the hours spent by the Defendants’ counsel in this matter, as set out in a Costs Outline dated October 21, 2013. The Plaintiff, however, questions the partial indemnity rate of $375 per hour sought by the Defendants. The Plaintiff proposes a partial indemnity rate of $250.
[11] Rule 1.03 defines “substantial indemnity costs” as costs awarded in an amount that is 1.5 times what would otherwise be awarded for partial indemnity costs. Therefore, an appropriate partial indemnity rate having regard to the substantial indemnity rate of $455 per hour claimed would be in the range of $300 per hour. However, the maximum partial indemnity rate is reserved for the most complex of matters. This appeal was of moderate complexity and an hourly rate of $250 would be reasonable. Accordingly, costs are fixed at $5000 inclusive of disbursements and applicable taxes.
Toscano Roccamo J.
I agree _______________________________
Matlow J.
I agree _______________________________
Maranger J.
Released: November 15, 2013
CITATION: Kostyniuk v. Burnell, 2013 ONSC 6705
DIVISIONAL COURT FILE NO.: DC-13-0031
DATE: November 15, 2013
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
MATLOW, MARANGER AND TOSCANO ROCCAMO JJ.
BETWEEN:
KOSTYNIUK & BRUGGEMAN BARRISTERS
Plaintiff/Appellant
– and –
RANDALL KELLY BURNELL AND BURTRO LAWN SPRINKLERS LTD.
Defendants /Respondents
Endorsement
TOSCANO ROCCAMO J.
Released: November 15, 2013