COURT FILE NO.: CV-15-00519879-0000 DATE: 20230209 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Christina Atkinson, Applicant AND: Whaley Estate Litigation, Respondent
BEFORE: Justice Michael Dineen
COUNSEL: J. Kary, for Ms. Atkinson N. Hojjati, for Whaley Estate Litigation
HEARD: January 17, 2023
Endorsement
Introduction
[1] Ms. Atkinson moves to set aside the assessment order of assessment officer Boehm, who upheld the account of her former lawyers Whaley Estate Litigation (“WEL”) in full after a four-day hearing. WEL moves to dismiss Ms. Atkinson’s motion and to confirm the assessment, arguing that Ms. Atkinson’s failure to make objections to the assessment pursuant to Rule 58.10 means that there is no jurisdiction to consider her challenge to the order.
Factual background
[2] Ms. Atkinson retained WEL in October, 2014, to assist her on issues relating to the care of her father Merrick Atikinson. Specifically, she was concerned that he was not receiving appropriate medical care at the Upper Canada Lodge nursing home where he was living, which was located near the residence of his wife Martine in Niagara region. She was further concerned that her father was subject to abuse from his wife. At the time, Martine had a power of attorney for personal care for Merrick, who suffered from dementia and other medical conditions.
[3] Ms. Atkinson urgently sought to obtain control over her father’s care decisions and to move him to a home closer to her own residence in Toronto. She believed Martine was refusing to ensure that her father was treated when he was ill.
[4] WEL first retained an independent counsel to seek to conduct a capacity assessment in order to facilitate having Merrick appoint Ms. Atkinson as his attorney for personal care in place of Martine, based on Ms. Atkinson’s belief that this was her father’s wish. Merrick refused to meet with this counsel.
[5] WEL then prepared a guardianship application and, following an urgent scheduling motion, Patillo J. made an interim order prohibiting Martine from moving Merrick without Ms. Atkinson’s agreement and ensuring Ms. Atkinson’s ability to visit her father. The guardianship motion was scheduled to proceed on February 15, 2015. Martine retained her own counsel and disputed Ms. Atkinson’s allegations of mistreatment, making allegations of her own that Ms. Atkinson had acted improperly under her power of attorney over Merrick’s assets.
[6] In November, Merrick fell ill with pneumonia and Ms. Atkinson and Martine clashed over the appropriate treatment, with Ms. Atkinson of the view that Martine prematurely sought palliative care for Merrick. When this health crisis resolved, Martine’s counsel initiated settlement discussions, offering terms that included consenting to Ms. Atkinson’s assumption of responsibility over Merrick’s personal care. A mediation date was set for December 15.
[7] Correspondence exchanged between Ms. Atkinson and her counsel in the lead-up to the mediation show that the solicitor-client relationship was increasingly under strain. Ms. Atkinson wished to adjourn the mediation in order to gather further evidence in support of her position. Her lawyers sent her strongly worded correspondence advising against this course of action, explaining that it would both delay her ability to take responsibility for her father’s care and expose her to costs consequences. Ms. Atkinson ultimately agreed to participate in the mediation.
[8] On December 15, a settlement was reached. The terms included a division of property and also, of most significance to Ms. Atkinson, terms intended to allow her to immediately move her father to her preferred nursing home and be responsible for decisions about his care. The settlement sought to achieve this goal by having Martine and a friend of Merrick’s who served as substitute power of attorney immediately resign their positions. It was intended that by operation of law this would leave Merrick’s next-of-kin – Ms. Atkinson and her brother Merrick Jr. – responsible for his personal care decisions. The settlement expressly provided that Martine did not oppose the move to a different nursing home.
[9] Merrick Jr. took part in the mediation, and everyone’s understanding at the time seemed to be that he was content to leave personal care decisions to his sister. Following the settlement, Ms. Atkinson immediately took steps to move her father. Emails exchanged at the time show that a lawyer for Niagara region responsible for approving the move was initially not satisfied that the minutes of settlement were sufficient to permit the move until they were confirmed by a court order, but correspondence from WEL appears to have persuaded him otherwise.
[10] However, in a turn of events seemingly unanticipated by both Ms. Atkinson and WEL, Merrick Jr. at this point took the position that he was opposed to the proposed move and he refused to agree to Ms. Atkinson’s wishes with respect to their father’s care. Merrick ultimately died on February 5, 2015, still residing at the Upper Canada Lodge.
Procedural history and the decision of the Assessment Officer
[11] Ms. Atkinson dismissed WEL in January, 2015 and retained new counsel. The parties have been engaged in a dispute about WEL’s bill ever since. Ms. Atkinson paid $29,013.01 and WEL delivered a further final account of $20,269.66 which Ms. Atkinson sought to assess.
[12] WEL brought a motion to have its outstanding account paid from the estate. On October 28, 2015, Hainey J. dismissed the motion on the basis that Ms. Atkinson had applied to assess the account. The parties engaged in further litigation when Ms. Atkinson unsuccessfully sought to enforce a purported settlement before Perell J. (see 2019 ONSC 2383 and 2019 ONSC 3708), before the assessment hearing proceeded before Assessment Officer Boehm over four days.
[13] The Assessment Officer delivered reasons upholding the entirety of WEL’s bills. He set out the history of the proceedings and expressly considered each of the nine factors outlined in Cohen v. Kealey Blainey (1985) 10 O.A.C. 344 (C.A.) relevant to the assessment of a legal account.
[14] In particular, he accepted that all of the dockets rendered by WEL reflected work validly performed at rates set out in the initial retainer agreement. He found the evidence given by the WEL lawyers to be credible and made adverse credibility findings against Ms. Atkinson. Specifically, he rejected her evidence that she had not been warned by WEL that her brother would share decision-making authority under the proposed settlement.
[15] In this proceeding, Ms. Atkinson takes particular issue with the assessment officer’s treatment of the skill and competence shown by Whaley and the result achieved. The assessment officer said the following:
Counsel further argues that the services of WEL were lacking because the MOS were “over-complicated, faulty and poorly-drafted” in that (1) They were dependant on the resignation of the substitute decision maker, who was not bound by the MOS; (2) They resulted in the Client sharing decision-making authority with Merrick Jr., who appears to not be bound by certain provision of the MOS, and, further, was a “wild card;” and (3) They contained a timeline requiring the Client to make payment from Merrick’s estate prior to obtaining Court approval, leaving the Client exposed to potential liability.
I have considered these arguments. However, a lack of competence on the part of WEL’s counsel is a serious assertion and for me to give it credence would require expert evidence addressing the standard of care under these or like circumstances and whether the Solicitor’s handling of the matter fell below that standard of care.
Although counsel for the Client made interesting arguments in this regard, there is no compelling evidence before me to suggest a lack of skill or competence on the part of WEL’s counsel. There will be no reduction under this factor.
The result achieved was a negotiated settlement between the Client and Martine. As authorized by the Client, the MOS provided for payment to Martine from Merrick’s estate; the Client and Merrick Jr. became co-equal caretakers of Merrick; and the parties executed mutual general releases.
I find that the results justify the legal costs assessed herein. (Emphasis in original)
[16] Ms. Atkinson further objects to the assessment officer’s treatment of billing for travel time. Noting that this was a very small amount of the total bill, he accepted that “time expended on travel is as valuable to a solicitor as time spent on legal work.”
[17] Following the release of the assessment officer’s reasons on January 8, 2021, the parties exchanged costs submissions and a costs endorsement was made on March 1, 2021. Atkinson did not make objections under Rule 58.10 to the assessment order, instead moving to oppose confirmation of the order.
The legal framework
[18] In RZCD Law Firm LLP v. Williams, 2016 ONSC 2122, Perell J. held for a panel of the Divisional Court that the ability to challenge the decision of an assessment officer ordinarily depends on the delivery of objections:
[30] Section 6 (9) of the Solicitors Act provides that a motion to oppose confirmation of the certificate shall be made to a judge of the Superior Court of Justice.
[31] Section 17 (b) of the Courts of Justice Act provides for appeals to the Superior Court of Justice from a certificate of assessment in respect of which an objection was served under the Rules of Civil Procedure. Section 17 (b) states:
- An appeal lies to the Superior Court of Justice from, … (b) a certificate of assessment of costs issued in a proceeding in the Superior Court of Justice, on an issue in respect of which an objection was served under the rules of court.
[32] Rule 58.11 provides that an appeal under s. 17 (b) of the Courts of Justice Act from a certificate of assessment in respect of which an objection was served is governed by rule 62.01 (which is the rule that provides the procedure for appeals from an interlocutory order). Rule 58.11 states:
APPEAL FROM ASSESSMENT 58.11 The time for and the procedure on an appeal under … 17 (b) … of the Courts of Justice Act from a certificate of an assessment officer on an issue in respect of which an objection was served is governed by rule 62.01.
[33] As may be noted, appeals or opposition to the confirmation of a certificate of an assessment officer involve the delivery of objections. The procedure with respect to serving objections is a procedure designed to provide the assessment officer with an opportunity to reconsider and review his or her assessment in light of the objections and to amend his or her decision and certificate accordingly. The procedure is set out in rules 58.09 and 58.10, which state:
CERTIFICATE OF ASSESSMENT 58.09 On the assessment of costs, the assessment officer shall set out in a certificate of assessment of costs (Form 58C) the amount of costs assessed and allowed.
OBJECTIONS TO ASSESSMENT 58.10 (1) On request, the assessment officer shall withhold the certificate for seven days or such other time as he or she directs, in order to allow a party who is dissatisfied with the decision of the assessment officer to serve objections on every other interested party and file them with the assessment officer, specifying concisely the grounds for the objections. (2) A party on whom objections have been served may, within seven days after service or such other time as the assessment officer directs, serve a reply to the objections on every other interested party and file it with the assessment officer. (3) The assessment officer shall then reconsider and review the assessment in view of the objections and reply and may receive further evidence in respect of the objections, and the assessment officer shall decide on the objections and complete the certificate accordingly. (4) The assessment officer may, and if requested shall, state in writing the reasons for his or her decision on the objections.
[34] When an appeal is about the assessment officer’s jurisdiction; i.e., an appeal about the principle upon which the assessment proceeded or the fairness or natural justice of the assessment procedure rather than an appeal about particular items, then the appeal may proceed without objections having been made to the assessment officer: Borden & Elliot v. Deer Home Investments Ltd., [1992] O.J. No. 2152 (Gen. Div.); Wilson v. Gunn & Associates, [1999] O.J. No. 658 (Gen. Div.); Ramos v. Eastern Airlines Inc., [1994] O.J. No. 2033 (Gen. Div.); Rowland v. Sackmar, [1960] O.W.N. 455 (leave to appeal) and Rowland v. Sackmar, [1960] O.W.N. 522 (C.A.); Clark v. Virgo (1896), 17 P.R. 260.
[35] However, where the appeal from a certificate of assessment is confined to specific items in the solicitor’s bill, objections should be delivered, and if objections are not delivered, the appeal court may dismiss the appeal upon preliminary motion: Brooker v. 626381 Ontario Ltd., [2009] O.J. No. 138 (S.C.J.); Re Avery, [1952] O.J. No. 129 (H.C.J.); Robinson v. England (1906), 11 O.L.R. 385 (Div. Ct.), aff’g Robinson v. England, [1906] O.J. No. 334 (H.C.J.); Campbell v. Baker (1905), 9 O.L.R. 291; Snowden v. Huntington (1887), 12 P.R. 248.
[36] Instead of dismissing the appeal, the court has a rarely exercised discretion to set aside the certificate and to allow objections to be made nunc pro tunc: Robinson v. England, supra; Basman v. Beck, [1989] O.J. No. 274 (Surr. Ct.), but, generally speaking, appeals on specific items in the lawyer’s bill should be based on objections delivered to the assessment officer.
[19] Where a motion to oppose confirmation of an assessment officer’s decision is properly before the Court, a deferential standard of review is appropriate. See RZCD, supra, cited with approval on this issue in Newell v. Sax, 2019 ONCA 455:
[46] A motion to oppose an assessment officer’s certificate is in the nature of an appeal, and the court is concerned only with errors in principle and not mere questions of amount, unless the amounts are so inappropriate as to suggest an error in principle; thus, the decision of the assessment officer can be disturbed only if: (a) there is absence or excess of jurisdiction; (b) there has been some error in principle; or (c) there has been some patent misapprehension of the evidence. See: Samuel Eng and Associates v. Ho, 2009 ONCA 150; Rabbani v. Niagara (Regional Municipality), 2012 ONCA 280; John Dryden v. Oatley Vigmond LLP, 2011 ONSC 7303; Nicholas C. Tibollo Professional Corp. v. Wasserman Associates Inc., 2011 ONSC 4742, aff’d 2013 ONSC 2685 (Div. Ct.); Labelle v. Howe, [1996] O.J. No. 759 (Div. Ct.); Eastwalsh Homes Ltd. v. Anatal Development Corp., [1995] O.J. No. 608 (C.A.); Foster v. Kempster, [2000] O.J. No. 5022 (S.C.J.).
[47] On an appeal of a certificate of assessment, the court will not interfere with the exercise of discretion of the assessment officer where the dispute involves no matter of principle but only a question of amount, unless the amount in question is so grossly large or small as to be improper beyond all question: John Dryden v. Oatley Vigmond LLP, supra; Schwisberg v. Kennedy, [2004] O.J. No. 3478 (S.C.J.); Kelleher, Hoskinson v. Knipfel (Executors of the Estate of), [1982] O.J. No. 3283 (C.A.); Re Solicitor, [1908] O.J. No. 454 (H.C.J.).
[48] The court hearing the motion appealing a certificate of assessment should not retry the matter or interfere with the result, unless the reasons demonstrate some error in principle or unless there has been some absence or excess of jurisdiction or some patent misapprehension of the evidence: Ledroit v. Rooplall, 2011 ONSC 2751; In Re Solicitor (1976), 3 C.P.C. 148 (Ont. C.A.); Borden & Elliot v. Deer Home Investments Ltd., [1992] O.J. No. 2152 (S.C.J.).
Analysis
[20] In this case, Ms. Atkinson did not deliver objections to the assessment officer’s decision. Her counsel submits that she should nonetheless be permitted to challenge the decision, and in particular takes issue with the Assessment Officer’s credibility findings, his assessment of the skill and competence of WEL’s work and the result obtained, and the amount billed for travel time. He submits that these are issues of “principle” rather than accounting and are not suited to the objections process, and that the decision in RZCD does not require objections for this type of argument. I disagree.
[21] It is true that paragraph 34 of RZCD says that “an appeal about the principle upon which the assessment proceeded” is permissible without objections. Read in context however, I see this phrase as meaning something much narrower than what Ms. Atkinson’s counsel suggests. It is expressly linked to “the assessment officer’s jurisdiction,” and the arguments advanced in this case are not jurisdictional.
[22] I am reinforced in this interpretation by the fact that in the decision under appeal in that case, reported at 2015 ONSC 1792, the application judge found that the assessment officer had made an error in principle in assessing the nine Cohen factors, specifically in assessing the result achieved. The Divisional Court held that this argument, which is in my view comparable to the arguments advanced by Ms. Atkinson before me, was not properly considered given that objections had not been delivered.
[23] I also disagree with the submission of Ms. Atkinson that her challenges to the Assessment Officer’s decision are not suited to the objection process. Her factum repeatedly argues that the reasons of the Assessment Officer are insufficient on specific issues. The objection process is one that is, in part, designed to allow both reconsideration of issues and the issuance of supplementary reasons to cure any insufficiency. Her complaint about the rate charged for travel time is also one that could easily have been pursued through the delivery of an objection at much less cost than this motion.
[24] In oral argument, counsel for Ms. Atkinson submitted that the holding in RZCD that objections are required before an appeal may be brought is wrongly decided and that Rules 58.09 and 58.10 should not be read as applying to the assessment of a lawyer’s accounts, but only to the assessment of party and party costs. There is some authority supporting this interpretation (See Moore v. John. A. Annen Barrister Professional Corporation, 2017 ONSC 7720 at paragraph 10). However, the RZCD decision was rendered by a three-judge panel of the Divisional Court and it accordingly binds me.
[25] I would therefore dismiss Ms. Atkinson’s challenge to the Assessment Officer’s decision. While I do possess the discretion to consider her arguments on the merits notwithstanding her failure to make use of the objections procedure, I would not exercise that discretion in the circumstances.
[26] Even if I were to do so, while I acknowledge that there is some force to the criticisms of the assessment officer’s reasons made by counsel for Ms. Atkinson, I am not satisfied that there is a basis to interfere with his decision. I will briefly address the main arguments advanced by Ms. Atkinson and explain my reasons for this conclusion.
The assessment officer’s credibility findings
[27] A substantial obstacle for Ms. Atkinson in this proceeding is the adverse credibility findings made by the Assessment Officer. Ms. Atkinson’s challenge to those findings centres on paragraph 28 of the decision below, where the officer rejected Ms. Atkinson’s evidence that her lawyers failed to explain to her that the minutes of settlement would lead to her sharing responsibility for decisions relating to her father’s care with her brother. He did so on two bases: that this claim had not been raised before the hearing, and that it was “simply inconceivable that counsel of the caliber” of the WEL lawyers could have failed to explain such a fundamental point.
[28] Counsel for Ms. Atkinson submits that the Assessment Officer’s view about the “caliber” of WEL reflects a belief that lawyers deemed to be “high caliber” enjoy a presumption of truthfulness and competence, and that this belief was not limited to his finding on this specific factual point but permeates his reasons and overall credibility findings. He further argues that it gives an appearance that the Assessment Officer relied on information outside the record in assessing the perceived stature of WEL.
[29] I do not read the reasons that way. I agree with Ms. Atkinson that an assessment of a lawyer’s account should not proceed from an assumption that a lawyer is credible based on his or her professional stature. But I am not convinced that the Assessment Officer did this. As I read the reasons, he simply found it implausible that WEL failed to inform their client of a key aspect of the settlement that they negotiated in her presence and that she endorsed. I see no reason to assume that his reference to their “caliber” referred to anything other than the evidence before him of their experience in the area and the apparent approach they brought to their representation of Ms. Atkinson as documented in their correspondence and file and described in their evidence. Given the very high degree of deference owed to findings of credibility and fact, I see no basis to interfere.
The assessment officer’s treatment of the nine Cohen factors
[30] Counsel for Ms. Atkinson submits that the Assessment Officer failed to meaningfully address two of the critical Cohen factors: the skill shown by the lawyers and the result achieved. He submits that the Assessment Officer abdicated his responsibility to meaningfully assess WEL’s performance in paragraphs 47-50 of his decision, quoted above at paragraph 15.
[31] To the extent that those paragraphs could be read as suggesting that a client is required to call expert evidence on the standard of care before advancing any criticisms of counsel’s skill in the context of an assessment of an account, then I do not agree with them. This case already featured a four-day hearing to resolve a dispute over approximately $20,000. To demand expert evidence as a prerequisite to arguments about the lawyer’s performance would be to risk making the assessment procedure entirely inaccessible to clients of modest means.
[32] When read in context, however, I am not satisfied that this is what the Assessment Officer held. I understand him to have found that nothing on the record in the conduct of WEL demonstrated any apparent lack of skill or competence, and that to the extent that Ms. Atkinson wished to argue that they showed a lack of skill that would only be discernable to someone with special expertise, it was incumbent on her to establish this. I do not see this as a reversal of the burden of proof, as urged by Ms. Atkinson. Rather, I read it as a finding that there was no evidentiary foundation for her arguments. I would not interfere with this conclusion.
[33] In some cases it will be obvious that there are issues with the competence of a lawyer’s representation of a client. In many situations however, experienced and skilful lawyers may disagree about the best approach to a particular legal problem. I would not criticize the Assessment Officer for finding no basis to second-guess the decisions made in this case. I accept counsel for Ms. Atkinson’s submission that there is a difference between arguing that a lawyer was incompetent or negligent on the one hand, and arguing that they did not show exceptional skill justifying a very large bill on the other, but I cannot say that the Assessment Officer erred in finding the account in this case was justified.
[34] Counsel for Ms. Atkinson also forcefully challenges the Assessment Officer’s conclusion that the result delivered for the client justified the legal costs. He submits that in reaching this conclusion, the Assessment Officer focused on the legal steps taken and not on the substantive outcome. Ms. Atkinson’s goals were to obtain guardianship for her father and move him to a different nursing home, and these were not achieved. WEL’s chosen route to these goals through the settlement they negotiated ultimately failed when Merrick Jr. unexpectedly resiled from his position that he was content to allow his sister to make personal care decisions and instead actively opposed her position.
[35] I have sympathy for this argument and can well understand why Ms. Atkinson feels with hindsight that these legal fees were wasted. However, I do not believe that perfect hindsight is the right lens through which to value the legal work that was done.
[36] WEL offered an explanation for their decision to rely on the resignation of the existing holders of Merrick’s Power of Attorney and the resulting joint responsibility between Ms. Atkinson and her brother. Their concern was that a settlement consenting to Ms. Atkinson’s appointment as sole guardian would not be effective until formalized in a court order, which could potentially have taken months. By contrast, the resignation of Martine and her substitute would give Merrick’s children responsibility with immediate effect. They understood Merrick Jr. (who accompanied Ms. Atkinson to her initial meeting with WEL and to the mediation) to be aligned with his sister.
[37] On the Assessment Officer’s findings of fact, Ms. Atkinson was aware of her brother’s proposed joint responsibility when she approved the settlement. Merrick Jr.’s abrupt change of position seems, on the record, to have been reasonably unforeseeable at the time and not anticipated by lawyer or client.
[38] It is easy with hindsight to say, as Ms. Atkinson now does, that WEL should have structured the settlement in a different way to prevent Merrick Jr. from blocking Ms. Atkinson’s decisions, such as providing that Martine consent to the nursing home transfer before resigning her Power of Attorney. I find it difficult to fault WEL for perceiving Martine to be a more likely obstacle to Ms. Atkinson’s future decisions than Merrick Jr. given the information they had. The result they negotiated appeared at the time to achieve their client’s goals. It failed only because of a reasonably unforeseeable change in family dynamics. This is understandably frustrating for Ms. Atkinson but does not in my view affect the value of the legal services she bargained for.
[39] I understand the submission of counsel for Ms. Atkinson that this change in family dynamics is the type of event that careful lawyers should plan for. But, particularly in view of the speed with which Merrick Jr. changed his mind, I cannot say the Assessment Officer was wrong not to criticize WEL for failing to anticipate that this re-alignment of the siblings might occur before they were able to carry out the planned change of residence.
Travel time
[40] Ms. Atkinson challenges the assessment officer’s finding that it is “novel” to suggest that travel time be billed at something other than the lawyers’ full hourly rates and his approval of the small amount of travel time billed. There is no invariable rule for how travel time should be billed. I see no basis to interfere with the assessment officer’s decision on this expense.
Conclusion
[41] For these reasons, I dismiss Ms. Atkinson’s motion and grant WEL’s motion to confirm the Certificate of Assessment. If the parties are unable to agree on costs, WEL may file submissions within 14 days of these reasons and Ms. Atkinson may respond within 14 further days.
Dineen J.