Maplecrete Group Ltd. v. Belsito, Baichoo & Ruso, 2015 ONSC 4217

CITATION: Maplecrete Group Ltd. v. Belsito, Baichoo & Ruso, 2015 ONSC 4217

DIVISIONAL COURT FILE NO.: 544/14 DATE: 20150629

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

LEDERMAN, SWINTON AND SACHS JJ.

BETWEEN:

MAPLECRETE GROUP LTD. Applicant/Respondent on Appeal

– and –

BELSITO, BAICHOO & RUSO Respondent/Appellant

Sandra L. McNeely, for the Applicant/ Respondent on Appeal

Justin P. Baichoo, Appellant In Person

HEARD at Toronto: June 29, 2015

SWINTON J. (ORALLY)

[1] An appeal lies from the order of a judge, not the reasons. This is an appeal from an order of Whitaker J. dated October 24, 2014, dismissing the appellant’s motion to set aside the order obtained by requisition pursuant to s. 3 of the Solicitors Act, R.S.O. 1990, c. S-15 (“the Act”) referring accounts rendered by the appellant to the respondent for an Assessment Hearing. The appellant argues that the assessment proceeding should be quashed because of flaws in the requisition. The motions judge disagreed. He found that an assessment was required, even if there were technical flaws in the requisition, and he exercised his inherent jurisdiction to permit the assessment to proceed. He also declined to order the respondent to post security for costs and awarded costs of $6,000 for the motion to the respondent.

[2] Section 3(b) of the Solicitors Act reads:

Where the retainer of the solicitor is not disputed and there are no special circumstances, an order may be obtained on requisition from a local registrar of the Superior Court of Justice,

(b) by the client, for the assessment of a bill already delivered, within one month from its delivery. …

[3] The motions judge failed to determine whether the respondent was entitled to proceed under s. 3 of the Solicitors Act. There are four preconditions that a client must satisfy to come within s. 3, as set out by the Court of Appeal in Davies, Ward & Beck v. Union Industries, Inc. (2000), 2000 5722 (ON CA), 48 O.R. (3d) 794 at para. 12:

This section allows a client to obtain an order on requisition only when four statutory preconditions have been satisfied: (a) the retainer is not in dispute (not an issue in this case); (b) there are no special circumstances; (c) the bill is already delivered; and (d) the requisition is made within one month of the delivery of the bill. See Re Solicitor, 1940 356 (ON SC), [1940] 4 D.L.R. 712, [1940] O.W.N. 438 (S.C.), affirmed without reasons 1940 324 (ON CA), [1940] 4 D.L.R. 821 (Ont. C.A.) which confirmed that the authority of the registrar to issue an order for assessment is confined by the statutory preconditions.

[4] The appellant argues that the retainer is disputed. However, he did not make this argument before the motions judge and, in any event, there is no merit to this argument. The accounts were issued in the name of Belsito, Baichoo and Ruso, and the cheques made out by the respondent to them were cashed. There is no dispute about the scope of the work or rate or the lawyer who was to do the work.

[5] The second precondition is that there are no special circumstances. The appellant argues that the accounts were each final, and only the May 30, 2013 account could be the subject of a requisition.

[6] The motions judge seems to have found that the May 30 account was a final account (see para. 1 of his endorsement). By implication, the other accounts were interim. In our view, that finding is correct. As the Court of Appeal stated in Price v. Sonsini (2002), 2002 41996 (ON CA), 60 O.R. (3d) 257, para. 15:

Where interim accounts are rendered in connection with the same matter, the limitation period for assessment under the Solicitors Act begins to run from the date of the final account, even if some of the interim accounts have been paid.

The Court went on to say at para. 16:

Interim accounts are necessary as a matter of commercial reality, even though it may be difficult to assess the value of legal services before the solicitor’s work is completed. A rule that required clients to move for immediate assessment of interim accounts would force clients into the invidious position of straining, if not rupturing, the solicitor-client relationship before the retainer has ended. Clients should not be forced to choose between harming the solicitor-client relationship and foregoing the right to have an interim account assessed. Rather, under s. 3, clients should be entitled to move for an assessment of an interim account within one month of delivery of the final account.

[7] In the present case, none of the accounts were marked as final, and there is no dispute that each invoice was rendered as part of a single continuing matter. Indeed, as part of his submissions before the motions judge, the appellant provided a summary of the account with the respondent that reflected the fact that these accounts were all in relation to one ongoing matter. Thus, it is clear from the record that the requisition was made within one month of the delivery of the final account on May 30, 2013.

[8] Unlike in Davies, Ward & Beck, above, there were “no unusual circumstances revealed in the material presented to the registrar [that] brought into question precondition (b), namely, whether there were ‘special circumstances’” (see para. 19).

[9] In this regard, the fact that all the appellant’s accounts had been paid does not deprive the respondent of the right to have the assessment directed by the registrar, as the requisition was made within thirty days of the delivery of the final account (see Kulidjian & Associates v. Gareene Homes Inc., 2011 ONCA 224 at para. 7). Accordingly, the respondent was entitled to proceed by way of requisition under s. 3 of the Act.

[10] Even if we are wrong in this conclusion, the motions judge properly invoked his inherent jurisdiction to control the conduct of solicitors. See Price, above at para. 19, where the Court of Appeal stated:

The court has an inherent jurisdiction to control the conduct of solicitors and its own procedures. This inherent jurisdiction may be applied to ensure that a client’s request for an assessment is dealt with fairly and equitably despite procedural gaps or irregularities.

[11] The motions judge concluded that there were a number of “other circumstances” that justified an assessment of the account. The “other circumstances” set out in para. 21 of the respondent’s factum filed before him, which he considered and relied upon, mirrored the kind of factors which would support a decision to refer these accounts for an assessment.

[12] For these reasons, we order that all the accounts should proceed for an assessment hearing on a date to be fixed by the Assessment Office.

[13] With respect to the second ground of appeal, the refusal to order security for costs, we note that leave was not sought to appeal this interlocutory order. In any event, the motions judge made no error of principle when he exercised his discretion not to make an order for security for costs in the present circumstances, where all the accounts have been paid.

[14] With respect to the appeal as to costs, the motions judge reasonably exercised his discretion to award costs to the respondent as the successful party.

[15] For these reasons, the appeal is dismissed.

LEDERMAN J.

COSTS

[16] I have endorsed the Appeal Book to read, “This appeal is dismissed for oral reasons delivered by Swinton J. The respondent will have its costs of the appeal fixed at $7,500, all inclusive.”

___________________________ SWINTON J.

LEDERMAN J.

SACHS J.

Date of Reasons for Judgment: June 29, 2015

Date of Release: July 3, 2015

CITATION: Maplecrete Group Ltd. v. Belsito, Baichoo & Ruso, 2015 ONSC 4217

DIVISIONAL COURT FILE NO.: 544/14 DATE: 20150629

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

LEDERMAN, SWINTON AND SACHS JJ.

BETWEEN:

MAPLECRETE GROUP LTD. Applicant/Respondent on Appeal

– and –

BELSITO, BAICHOO & RUSO Respondent/Appellant

ORAL REASONS FOR JUDGMENT

SWINTON J.

Date of Reasons for Judgment: June 29, 2015

Date of Release: July 3, 2015