Court File and Parties

CITATION: Teitel v. Serniak, 2020 ONSC 4428

DIVISIONAL COURT FILE NO.: 19/272 COURT FILE NO.: 96-MU-013657

DATE: 20200723

SUPERIOR COURT OF JUSTICE – ONTARIO DIVISIONAL COURT

RE: MURRAY TEITEL; NEWMAN, WEINSTOCK; and GREEN AND SPIEGEL, Solicitors (Appellant)

AND:

PHILIP SERNIAK in his capacity as litigation administrator of the ESTATE OF MARY SERNIAK, deceased, Client (Respondent)

BEFORE: Swinton, Lederer and Penny JJ.

COUNSEL: Murray Teitel, self-represented Appellant Bryan C. McPhadden, for the Client (Respondent)

HEARD at Toronto (by videoconference): July 15, 2020

ENDORSEMENT

[1] This appeal was heard on July 15, 2020 and dismissed with reasons to follow. These are those reasons.

[2] Murray Teitel appeals the order of Spies J. dated April 12, 2019 that dismissed his appeal from the order of Assessment Officer Brough dated August 19, 2016.

[3] The assessment process had begun in 1998 and encompassed more than 25 hearing days plus six days of motions and appeals that ended in 2011. The assessment officer who presided over the hearing retired before rendering a decision, and a second assessment officer assigned to this matter also left employment with the court before issuing a decision. The Assessment Officer assessed accounts totaling $24,992.55 for legal services performed between 1993 and 1995 and ordered that the Appellant refund $2,166.57 to the client, Ms. Serniak. The Assessment Order also rejected the Appellant’s claim for costs of $118,652.53, concluding that both parties were responsible for causing delay and contributed to the “doubtlessly extreme costs of this assessment.”

[4] The appeal judge found no error of principle in the Assessment Officer’s determination that a refund should be made based on the Assessment Officer’s conclusion that the hours claimed were excessive. She found that there was no error of principle in the Assessment Officer refusing to award costs given his finding that both parties caused delay and “were responsible for the ridiculously high costs of this assessment.”

[5] The Appellant raises a number of issues: misapprehension of evidence by the appeal judge, reasonable apprehension of bias by the appeal judge, failure to read his factum, inadequacy of reasons, failure to consider the impact of the findings on his professional reputation, and a denial of procedural fairness in awarding costs of the appeal.

[6] There is no merit to this appeal.

[7] The refund decision was made largely because the Assessment Officer found that there were unnecessary and excessive costs incurred in negotiations between October 1993 and November 1994. Mr. Teitel argues that, on a proper assessment of the evidence, the Assessment Officer should not have reached this conclusion. However, an appeal is not an opportunity to re-argue the merits and to ask the court to come to a different conclusion on the evidence. To succeed on an appeal involving an assessment of the facts, the Appellant must show there was no evidence to support the impugned finding. The Appellant in this case has not demonstrated there was no evidence capable of supporting the Assessment Officer’s, and the appeal judge’s, conclusion. That decision was justified on the record, and the appeal judge made no error of principle or fact in upholding it.

[8] The Assessment Officer exercised his discretion to refuse to award costs in the circumstances. We agree with the appeal judge that the Appellant has failed to identify any error in principle by the Assessment Officer, or any basis for appellate intervention. Both parties were held to have contributed to the length, and the cost, of the assessment and so neither party was entitled to costs. There was evidence capable of supporting that conclusion as well.

[9] Proportionality is a very significant factor in any decision concerning costs. Mr. Teitel concedes that, in spite of his fears at the time, there was no legal basis upon which any assessment order could involve more than $24,992.55. Any allocation of fault for allowing the assessment to become an inquiry into alleged wrongdoing by Mr. Teitel’s client or by Mr. Teitel himself, (all irrelevant issues on the assessment) must lie, to some extent, with the original assessment officer. Responsibility must be shared by Ms. Serniak as well, for making and insisting on pursuing these allegations. But Mr. Teitel also contributed to this detour into irrelevant matters by calling evidence and cross-examining on these issues. It is no less than unconscionable that this assessment, over a mere $25,000, descended into the mire of a 25 day hearing at what the appeal judge accurately described as “ridiculously high costs” of over $118,000. The Assessment Officer, and the appeal judge, were both alive to the proportionality issue. There was support in the record for the exercise of the Assessment Officer’s exercise of discretion.

[10] The Appellant has not met the test to show reasonable apprehension of bias. He is not happy with the outcome of the appeal and some of the comments by the appeal judge, and he suspects that she did not read his factum or parts of it, or at least did not reflect his arguments in her decision. However, there is a presumption of impartiality on the part of a judge, and the Appellant has not led evidence that rebuts that presumption. A reasonable person, informed of the circumstances, would not conclude that the appeal judge would not decide the case fairly. She gave detailed and careful reasons that were supported by the record and the governing legal principles. It is clear from the appeal judge’s reasons that she had read his factum and reply factum.

[11] We reject the argument that the reasons of the appeal judge were inadequate. They identified the issues and explained the judge’s conclusions in a manner that permits meaningful appellate review.

[12] The Appellant makes much, in his material, of the question whether the commencement of the appeal by way of motion caused delay. This is not an important nor a relevant issue for purposes of determining the appeal before this Court. Our task is to determine whether the appeal judge erred in upholding the Assessment Officer’s decision.

[13] We also see no error by the appeal judge in rejecting the Appellant’s argument that his conduct was justified in the assessment proceeding because he was protecting his professional reputation. The issue on the assessment was a narrow one about the reasonableness of the fees of $25,000. It did not warrant some 25 days of hearings.

[14] With respect the appeal judge’s order of costs, the Appellant argues that he was denied procedural fairness because he was not given an opportunity to respond to the Respondent’s Bill of Costs. The Respondent submits that there were submissions on costs during the hearing before the appeal judge. Moreover, there is no presumptive right to provide reply argument on costs, and it is uncommon to permit a party to do so.

[15] The costs award was, in any event, reasonable. The appeal judge awarded the Respondent $20,000 in the face of a request for over $40,000. The Appellant had sought $13,791. Costs were within her discretion. She reduced the fees claimed, given that some of the work could have been done by a more junior lawyer. She also took into account the voluminous material to which the Respondent had to respond. Her costs award was reasonable and shows no error in principle.

[16] Accordingly, the appeal is dismissed. Costs are awarded to the Respondent in the all-inclusive amount of $6,000.

Swinton J.

Lederer J.

Penny J.

Date: July 23, 2020