COURT OF APPEAL FOR ONTARIO

DATE: 20000224

DOCKET: C29805

RE: JONES, ROGERS (Respondent) –and– HERBERT E. HALLATT and MARION E. HALLATT (Appellants)

BEFORE: FINLAYSON, LABROSSE and GOUDGE JJ.A.

COUNSEL: John A. Gamble, Q.C., for the appellants

Richard B. Jones and M. Cath Collins, for the respondent

HEARD: February 22, 2000

On appeal from the judgment of Epstein J. dated April 16, 1998.

E N D O R S E M E N T

[1] At the opening of the appeal, Douglas Burns appeared with counsel for the appellant and stated that he had an affidavit from a former solicitor, Noel Bates, which he wished to introduce in the form of fresh evidence. The counsel of record for the appellants had not seen the affidavit. A copy had been given to counsel for the respondent who objected to its acceptance by the court. The court had no material whatsoever dealing with this fresh evidence application. In the circumstances, we instructed counsel of record for the appellants to proceed with the argument without hearing further from Mr. Burns.

[2] So far as the merits of the appeal are concerned, counsel for the appellants embarked upon a re-argument of the issues heard both by the assessment officer and Epstein J. in appeal. It is clear that the Hallatts, particularly Mr. Hallatt, took strong exception to the manner in which the respondent’s solicitors represented them. The assessment officer was alive to these differences and was not uncritical of the conduct of the solicitors in aggressively pursuing the retainer in this case. However, clearly, there was a retainer as found both by the assessment officer and by Epstein J. in appeal. We would not interfere with this finding.

[3] The assessment officer carefully reviewed the accounts and taxed them. With one exception, Epstein J. agreed with him. There is ample evidence to support this assessment as varied and no error in law has been pointed out to us.

[4] Accordingly, the appeal is dismissed with costs.

Signed: “G.D. Finlayson J.A.”

“J.M. Labrosse J.A.”

“S.T. Goudge J.A.”