Court of Appeal for Ontario

Date: 2017-07-24 Docket: C63084

Judges: Sharpe, Lauwers and Roberts JJ.A.

Between

Pauline Lala Respondent

and

Basman Smith LLP Appellant

Counsel

Kevin W. Fisher, for the appellant

Adam Pantel, for the respondent

Heard: July 17, 2017

On appeal from the order of Justice W. M. Matheson of the Superior Court of Justice dated November 17, 2016.

Reasons for Decision

[1] The appellant law firm appeals an order of the motion judge setting aside a report and certificate of assessment. The motion judge ruled that the assessment officer had erred by failing to grant an adjournment when the respondent client did not attend the first day of a scheduled five-day hearing due to a communication error by court staff and that, as a result, the officer deprived the respondent of her right to a fair hearing.

[2] The respondent had initiated the assessment in February 2014 to question the appellant's account. At a preliminary appointment on June 9, 2014, a mediation was scheduled at the respondent's request for August 15, 2014 with a hearing to be scheduled pending the outcome of the mediation. The respondent was ordered to provide the appellant with a list of her issues or concerns regarding the account at least 30 days prior to the mediation. She failed to do so. The respondent then cancelled the mediation one day prior to its scheduled date.

[3] Over the following months, the assessment office and the appellant made several unsuccessful attempts to contact the respondent to schedule a hearing date. Eventually, in February 2015, the office scheduled a five-day assessment hearing. Due to a backlog in the assessment office, the hearing was scheduled to begin more than one year later, on March 14, 2016. During the interim, the appellant made offers to settle to which the respondent did not respond.

[4] The respondent retained counsel (not counsel on this appeal) two weeks prior to the scheduled date for the assessment hearing. Although her counsel communicated with the appellant, he was never entered as counsel of record.

[5] On the Wednesday before the Monday on which the assessment hearing was to commence, respondent's counsel called the assessment office. In her reasons, the assessment officer indicated that she had checked with the staff and determined that respondent's counsel was told that the assessment would "likely not proceed" on the scheduled date. Respondent's counsel insisted in his submissions that he was told that the assessment would not proceed. He faxed a letter to that effect to the appellant but the appellant insists that it did not receive the letter.

[6] On the first day of the hearing, neither the respondent nor her counsel attended. The assessment officer waited 30 minutes and then called and left voicemail messages for the respondent. She then proceeded with the hearing. The respondent later returned the assessment officer's telephone calls and advised the assessment officer that she had been told the hearing was cancelled and that she would have her lawyer call. The assessment officer then spoke to respondent's counsel by telephone at approximately 3:00 p.m. and, after a lengthy discussion regarding the miscommunication, the assessment officer adjourned the remainder of the first day of hearing and asked counsel to attend the following day.

[7] Respondent's counsel attended the next day but the respondent did not. Counsel did not provide an adequate explanation for the failure of the respondent to attend. The assessment officer indicated that some accommodation would be made to permit counsel to cross-examine the witnesses who had already testified on the first day of the assessment. Counsel refused to discuss any accommodation and insisted that the matter had to be adjourned, which the appellant opposed. The assessment officer refused to adjourn the assessment hearing and respondent's counsel left the hearing refusing to participate any further.

[8] On March 18, 2016, the assessment officer issued oral reasons approving the appellant's accounts and the report and certificate of assessment. On March 29, 2016, respondent's counsel issued and served a notice of motion to oppose confirmation of the report and certificate of assessment, returnable September 22, 2016. The appellant wrote to respondent's counsel requesting that the motion be heard at an earlier date and that respondent's counsel provide materials in support of the motion. No materials were provided and that motion was not heard.

[9] The respondent then retained new counsel and, on October 28, 2016, her new counsel issued a new notice of motion to oppose confirmation of the report and certificate of assessment. Respondent's new counsel later indicated that the previously scheduled motion had been "adjourned on consent" but the appellant insists that it was not advised of any adjournment and had proceeded as if the motion was deemed abandoned. The motion to oppose confirmation was finally heard on November 17, 2016 and forms the subject of this appeal.

[10] The motion judge ruled that the assessment officer had erred in refusing an adjournment and that the respondent had thereby been denied procedural fairness.

[11] We respectfully disagree with that ruling. It is clear from the transcript that the assessment officer was alert to the problems created by the miscommunications of the assessment office. She was prepared to give the respondent and her counsel the benefit of the doubt on that issue, without making a specific finding that the respondent's version is what actually happened. However, the fact that the respondent may have had an excuse for not attending the first day of the hearing did not automatically give rise to the right to an adjournment or a re-hearing of a five day assessment that had been scheduled a year earlier. The unfortunate miscommunication clearly had to be taken into account, but we agree with the assessment officer that the situation was not irretrievably lost because of that miscommunication.

[12] In our view, the assessment officer quite properly based her decision to refuse an adjournment on her overall consideration of the conduct of both parties, of the inconvenience and cost of a further delay in the assessment, and of the steps that could have been taken to relieve any procedural unfairness to the respondent.

[13] The assessment officer had to balance all of the circumstances to decide what to do in the interests of justice for both parties, given that the appellant was innocent of any miscommunication. The assessment officer was entitled to take into account the following additional facts in deciding whether to grant or refuse an adjournment: that the respondent had failed to ever provide a list of issues or concerns regarding the account to the appellant as she was ordered to do in June 2014; that the respondent had herself requested a mediation before a hearing date was set and then subsequently cancelled the mediation on one day's notice; that she had only retained counsel two weeks prior to the scheduled hearing date and without him being entered as counsel of record; and that, in view of the backlog in the assessment office, there would be another lengthy delay in rescheduling the hearing: see Igbinosun v. Law Society of Upper Canada, 2009 ONCA 484, 96 O.R. (3d) 138, at para. 37.

[14] The assessment officer asked for submissions about what to do and suggested various options. However, respondent's counsel was not prepared to engage in any discussion or to entertain any possibility other than that the matter be adjourned and restarted from square one. He left refusing to participate any further in the process. In the assessment officer's view, respondent's counsel failed to articulate what, if any, prejudice would adversely impact his client if the hearing were to continue in some fashion.

[15] This was not a case where the assessment officer was rigidly imposing one way of proceeding; on the contrary, she was clearly open to suggestions from the parties about what to do. In the circumstances of this case, it was reasonable for her not to accept the only option proposed by the respondent namely to adjourn and restart the hearing.

[16] We note as well that this was an assessment hearing, not a trial, and that the proceedings are inquisitorial in nature. While adequate preparation is no doubt important, the fact that respondent's counsel was only retained two weeks earlier and that he had apparently done no preparation before his telephone call to the assessment office just a few days before the scheduled date indicates that even had the matter proceeded, he would have done little preparation.

[17] In our view, the assessment officer's decision to refuse an adjournment was reasonable and the motion judge failed to give adequate deference to that decision.

[18] Accordingly, we allow the appeal and set aside the motion judge's order setting aside the report and certificate of assessment. The motion judge made no order as to costs due to the miscommunication from the assessment office and we do the same on appeal.

Robert J. Sharpe J.A.

P. Lauwers J.A.

L.B. Roberts J.A.