Court File and Parties

COURT FILE NO.: CV-22-00089175 DATE: 2023/04/21 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: 11138120 Canada Inc. o/a Nextrue Group Inc., Ahmad Alashi, Mohammed Alashi and Racha Ayyache, Applicants AND Sherif Rizk, Respondent

BEFORE: Justice R. Ryan Bell

COUNSEL: Tanya Hewitt, for the Applicants Sherif Rizk, self-represented Respondent

HEARD: April 13, 2023

Endorsement

Overview

[1] The applicants have applied to assess the accounts of their former solicitor, Mr. Rizk. The solicitor relies on s. 4(1) of the Solicitors Act and moves for an order that the accounts preceding May 4, 2021 be excluded from the assessment. The applicants submit that the solicitor’s motion should be dismissed because “special circumstances” exist that warrant the assessment of all of the accounts.

[2] For the following reasons, the solicitor’s motion is dismissed.

Background

[3] The applicants entered into three written retainer agreements with the solicitor. The accounts at issue relate to only two of the retainers: (i) a retainer dated September 28, 2019, in relation to a dispute with Brawn Construction Inc. concerning the substantial completion of construction work and a counterclaim for lost revenue; and (ii) a retainer dated January 8, 2020 for general legal services for the company.

[4] The retainer agreements were terminated on November 27, 2021.

[5] Six of the accounts are in relation to the Brawn Construction retainer. These accounts are dated between September 30, 2019 and March 30, 2022. It is Mr. Alashi’s evidence that he raised with the solicitor a concern that the amount of one of the accounts was excessive. The amount was then reduced. Only the last account dated March 30, 2022 was marked final. The March 30, 2022 account was issued following the termination of the solicitor-client relationship.

[6] The remaining 19 accounts at issue are in relation to the general legal services retainer. These accounts are dated between February 25, 2020 and October 13, 2021. Mr. Alashi’s evidence is that he was never informed that any of these accounts were final.

[7] Following the termination of the solicitor-client relationship, the applicants sought to have the files transferred to their new (and present) counsel. Mr. Alashi’s evidence is that he only learned of the process to challenge a solicitor’s account when he retained his new counsel in 2022. Mr. Alashi states that although he had reservations about the accounts rendered by the solicitor, he continued to pay them because he thought he was legally obligated to do so, and he did not want the solicitor to stop working on his matters.

Analysis

[8] The sole issue to be determined is whether there are special circumstances such that the accounts delivered prior to May 4, 2021 can be considered for assessment.

[9] Section 3 of the Solicitors Act provides:

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,

(a) by the client, for the delivery and assessment of the solicitor’s bill;

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

(c) by the solicitor, for the assessment of a bill already delivered, at any time after the expiration of one month from its delivery, if no order for its assessment has been previously made.

[10] Section 4(1) provides:

No such reference shall be directed upon an application made by the party chargeable with such bill after a verdict or judgment has been obtained, or after twelve months from the time such bill was delivered, sent or left as aforesaid, except under special circumstances to be proved to the satisfaction of the court or judge to whom the application for the reference is made.

[11] The payment of a bill does not preclude assessment if the special circumstances of the case, in the court’s opinion, appear to require the assessment: Solicitors Act, s. 11.

[12] The words “special circumstances” imply that the court has a broad discretion to determine the matter having regard to all the circumstances in the case; “‘[s]pecial circumstances’ are those in which the importance of protecting the interests of the client and/or public confidence in the administration of justice, demand an assessment”: Clatney v. Quinn Thiele Mineault Grodzki LLP, 2016 ONCA 377, at paras. 84 and 86. In Clatney, at para. 87, the Court of Appeal for Ontario identified the relevant circumstances as including but not limited to:

• the sophistication of the client;
• the adequacy of communications between solicitor and client concerning the accounts;
• whether there is evidence of increasing lack of satisfaction by the client regarding the services relating to the accounts;
• whether there is overcharging for services provided;
• the extent of detail of the bills;
• whether the solicitor-client relationship is ongoing; and
• whether payments can be characterized as involuntary.

[13] I am satisfied that the special circumstances of this case appear to require the assessment of all of the identified accounts, including those preceding May 4, 2021.

[14] The applicants allege that the total fees charged by the solicitor were excessive. They provide a specific example in relation to the general legal services retainer: Mr. Alashi’s evidence is that although the applicants were charged for work on an employee handbook, no draft or final handbook was ever provided.

[15] Some of the accounts do not include an itemized list of the work completed, for example, “monthly retainer amount, per terms of retainer agreement.” The applicants say they are not, at present, in a position to determine if there are additional examples of work that was not completed by the solicitor or for which the applicants were overcharged.

[16] Only the March 30, 2022 account, rendered after the termination of the solicitor-client relationship, is marked as final. The earlier accounts related to Brawn Construction were rendered in the context of a single, ongoing litigation file and are clearly interim in nature.

[17] The accounts rendered by the solicitor in relation to the general legal services retainer appear in some instances to relate to ongoing and overlapping matters. They, too, appear to be interim accounts.

[18] It is simply not realistic to expect that a client should seek to have a bill assessed during the course of an ongoing matter: Enterprise Rent-a-Car Co. v. Shapiro, Cohen, Andrews, Finlayson, at para. 21; Gardiner Roberts v. Cana International Distributing Inc., 2018 ONSC 3164, at para. 41. Even if the applicants had been aware of the procedure to challenge the solicitor’s accounts – and the uncontroverted evidence before me is they did not know - it cannot be expected that the applicants ought to have objected and taken out orders of assessment after each account was rendered. As the court observed in Farlinger v. Maurice J. Neirinck Associates, at para. 12, such an approach “would have resulted in a breakdown of the solicitor-and-client relationship.” Mr. Alashi’s evidence is he did not want the solicitor to stop working on his matters.

[19] In my view, there are special circumstances present in this case – including, the ongoing nature of the matters, the interim nature of the accounts, the applicants’ lack of knowledge that the solicitor’s account could be challenged, and the absence of detail in some of the accounts – that warrant the identified accounts preceding May 4, 2021 being included in the assessment.

[20] The solicitor’s motion is therefore dismissed. The applicants are entitled to their costs of the motion. The applicants’ costs outline discloses partial indemnity costs of approximately $3,300. The solicitor submitted that he would be seeking $2,500 in costs. I find a fair and reasonable amount for the costs of the motion to be $2,500 all inclusive. This amount is to be paid by the solicitor to the applicants within 30 days.

Justice R. Ryan Bell Date: April 21, 2023