CITATION: Maltz v. Colavecchia, 2014 ONSC 5348
COURT FILE NO.: SC-11-118243-00
Appeal File No.: 289-13
DATE: 20140916
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
MURRAY MALTZ
Plaintiff (Respondent)
– and –
FRANK COLAVECCHIA
Defendant (Appellant)
Murray Maltz, Plaintiff (Respondent), self-represented
Harvey J. Ash, for the Defendant (Appellant)
HEARD: September 15, 2014
PERELL, J.
REASONS FOR DECISION
[1] The Plaintiff (Respondent) Mr. Maltz practices law in Toronto. In September 2010, the Defendant (Appellant) Mr. Colavecchia retained Mr. Maltz for matrimonial proceedings. Mr. Colavecchia signed a retainer agreement that indicated that Mr. Maltz’s hourly rate was $385.00.
[2] Mr. Colavecchia paid a retainer of $4,000.00. Before Mr. Maltz was discharged, he billed Mr. Colavecchia $21,543.70 of which $14,684.70 remained outstanding. Mr. Maltz sued for the unpaid fees. At the trial, he submitted his account and his dockets and he testified. The accounts and the dockets tendered into evidence described the services provided by Mr. Maltz and the hours of work.
[3] Deputy Judge L. Richardson granted judgment to Mr. Maltz for $14,684.70 plus costs in the amount of $2,502.70.
[4] Mr. Colavecchia appeals. He submits that the Deputy Judge made five errors of law and that the standard of appellate review is one of correctness for errors of law. See Housen v. Nikolaisen, 2002 SCC 33.
[5] The five submitted legal errors are: (1) the Deputy Judge erred in not considering the nine factors set out in Cohen v. Kealey & Blaney, [1985] O.J. No. 160 (C.A.), which are the relevant factors in the assessment of a lawyer’s account; (2) the Deputy Judge erred by not permitting Mr. Colavecchia to testify about his financial situation, which is one of the factors relevant to the assessment of a lawyer’s account; (3) the Deputy Judge erred in finding that it was incumbent on Mr. Colavecchia to provide expert evidence to prove whether or not the legal services were performed in a competent and professional manner; (4) the Deputy Judge erred in making a finding that the Appellant was required to disclose in his financial statement that he had an interest in his mother’s bank account; and (5) the Deputy Judge erred in permitting extensive evidence with respect to the Appellant’s mother’s bank account when that evidence was not relevant to the issues at hand, namely, the assessment of Mr. Maltz’s accounts.
[6] There is no merit to this appeal. The Deputy Judge made no legal error. If the Deputy Judge made any errors, and I conclude he did not, they were errors of fact or of mixed fact and law.
[7] The standard of review for findings of fact is that the findings ought not to be reversed unless it is established that the trial judge made a palpable and overriding error: Housen v. Nikolaisen, supra. The palpable and overriding error test is met if the findings are clearly wrong or can properly be characterized as unreasonable and unsupported by the evidence: H.L. v. Canada (A.G.), 2005 SCC 25 at paras. 55-56. The standard of review for findings of mixed fact and law is on a spectrum between correctness and palpable and overriding error: Housen v. Nikolaisen, supra, and in the case at bar, if there was an error of mixed fact and law, it was factual and not legal in nature.
[8] In Cohen v. Kealey & Blaney, supra, the Court of Appeal held that in assessing the appropriateness of the fee charged by a lawyer to his or her client, the assessment officer normally may consider a variety of issues including: (1) the time expended by the lawyer; (2) the legal complexity of the matters dealt with; (3) the degree of responsibility assumed by the lawyer; (4) the monetary value of the matters in issue; (5) the importance of the matters to the client; (6) the degree of skill and competence demonstrated by the lawyer; (7) the results achieved; (8) the ability of the client to pay; and (9) the expectation of the client as to the amount of the fee.
[9] Mr. Maltz was under no evidentiary obligation to lead evidence on each of the factors listed in Cohen v. Kealey & Blaney, and the Deputy Judge made a finding of fact that Mr. Maltz had performed legal services and that there was an unpaid balance. There was no palpable and overriding error. In any event, the Deputy Judge’s reasons for judgment reveal that he was aware of the factors, some of which were obvious, such as the seriousness of the matter to Mr. Colavecchia and the degree of responsibility assumed by Mr. Maltz.
[10] There was no obligation on Mr. Maltz to lead evidence that his services met the standard of a reasonably competent lawyer, and the Deputy Judge made no error in his treatment of Mr. Colavecchia’s allegation that the legal services were not performed in a competent and professional manner.
[11] Mr. Colavecchia’s inconsistent complaints that the Deputy Judge erred in making a finding that he was required to disclose in his financial statement in the matrimonial proceedings that he had an interest in his mother’s bank account, and that the Deputy Judge erred in permitting extensive evidence to be led on this allegedly irrelevant issue, do not reveal a reviewable error.
[12] The evidence about the matter of the joint account seems to explain, in part, why there was a falling out between Mr. Maltz and Mr. Colavecchia, but ultimately nothing turns on this collateral issue. Mr. Colavecchia eventually settled with his wife and the issue of the joint account never came up in resolving the claim.
[13] The appeal is dismissed. It is dismissed without costs because Mr. Maltz appeared as a self-represented litigant and he did not prepare a factum and rather only submitted oral argument.
Perell, J.
Released: September 16, 2014
CITATION: Maltz v. Colavecchia, 2014 ONSC 5348
COURT FILE NO.: SC-11-118243-00
Appeal File No.: 289-13
DATE: 20140916
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
MURRAY MALTZ
Plaintiff (Respondent)
– and –
FRANK COLAVECCHIA
Defendant (Appellant)
REASONS FOR DECISION
PERELL J.
Released: September 16, 2014