Harper Jaskot LLP v. Bosanac
[Indexed as: Harper Jaskot LLP v. Bosanac]
62 O.R. (3d) 635
[2002] O.J. No. 4884
Docket No. C38156
Court of Appeal for Ontario,
O'Connor, Weiler and Rosenberg JJ.A.
December 19, 2002
Civil procedure -- Costs -- In matrimonial proceedings, client awarded fixed costs -- Client applying for assessment of own solicitor's account that was based on costs awarded -- Doctrines of issue estoppel and abuse of process not applying -- Client entitled to have account assessed.
In matrimonial proceedings, the appellant, SB, was awarded fixed costs. Her solicitor in those proceedings, the respondent HJ LLP, claimed the fixed costs as its solicitor and client account, but SB applied to have the solicitor's account assessed. Whitten J. ruled that the doctrine of issue estoppel applied. SB appealed.
Held, the appeal should be allowed.
Neither the doctrine of issue estoppel nor the doctrine of abuse of process applied. In the matrimonial action, when costs were assessed, the solicitor was allied in interest with the client, and their common interest was in maximizing the costs awarded. However, on their solicitor-and-client assessment, they were opposed in interest. Accordingly, the parties and privies were not the same in the two matters, and at least one of the requirements for issue estoppel was not satisfied. There was no abuse of process. In this case, the duty of care that a solicitor owes to his or her client and the ability to pay and any special arrangements were factors in an assessment of the solicitor's account that would not be raised in the party and party proceedings before the trial judge. It was not unfair to allow the client to have the bill assessed although costs had been fixed and awarded at trial. The fact that the assessment could be less than the award of costs at trial does not change the client's entitlement to have his or her account assessed, although this could lead to a circumstance in which the client would be obliged to refund some of the amount that has been paid as a result of the party and party assessment since the purpose of costs is to indemnify the successful party. Accordingly, the appeal should be allowed.
APPEAL from orders made in the assessment of a solicitor and client account.
Cases referred to Canam Enterprises Inc. v. Coles (2002), 2002 SCC 63, 24 C.P.C. (5th) 1, revg (2000), 2000 8514 (ON CA), 51 O.R. (3d) 481, 194 D.L.R. (4th) 648, 5 C.P.C. (5th) 218 (C.A.), affg (2000), 2000 22340 (ON SC), 47 O.R. (3d) 446 (S.C.J.); Price v. Sonsini (2002), 2002 41996 (ON CA), 60 O.R. (3d) 257, 215 D.L.R. (4th) 376, 22 C.P.C. (5th) 1, [2002] O.J. No. 2607 (Quicklaw) (C.A.) [page636]
Paul R. Sweeny, for respondent. Ted R. Laan, for appellant.
[1] BY THE COURT: -- This appeal raises the issue of the applicability of the doctrine of issue estoppel where a solicitor's costs have been fixed by the court at the conclusion of litigation and the client then seeks to have the solicitor's bill taxed.
[2] The doctrine of issue estoppel prevents a party from relitigating an issue already decided in an earlier proceeding. The requirements for issue estoppel are well-settled. One of these requirements is that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel was raised, or their privies. A privy is a person having an identity of interest with the party.
[3] In an action, the solicitor, although not a party to the action, is allied in interest with his client when costs are fixed at the conclusion of proceedings. The interest of a party awarded costs at the conclusion of proceedings is to maximize them. On a solicitor-and-client assessment, they are opposed in interest. On an assessment, the interest of that party -- as the client -- is to minimize obligations for solicitor-and- client costs. The parties or their privies are not the same and, thus, at least one of the requirements for issue estoppel is not met.
[4] The doctrine of abuse of process is also inapplicable. As stated by Goudge J.A. in dissent in Canam Enterprises Inc. v. Coles (2000), 2000 8514 (ON CA), 51 O.R. (3d) 481, 194 D.L.R. (4th) 648 (C.A.) (appeal allowed, for the reasons given by Goudge J.A., at 2002 SCC 63, 24 C.P.C. (5th) 1), abuse of process refers to the court's inherent power to prevent misuse of its procedure in a way that would be manifestly unfair to a party to the litigation before it. In this case, the duty of care that a solicitor owes to his or her client and the ability of a client to pay and any special arrangements are factors in an assessment of the solicitor's account that would not be raised in the party and party proceedings before the trial judge. It is therefore not unfair to allow the client to have a solicitor's bill assessed although costs had been fixed and awarded at trial.
[5] In this particular case, the solicitor is claiming as his fee the amount of solicitor-and-client costs awarded. The purpose of costs is to act as an indemnity to the successful party. The respondent submits that the client cannot, in these circumstances, be entitled to pay a lesser amount than the costs [page637] awarded and, as a result, it is not unfair to disallow the assessment as an abuse of process. In our opinion, the fact that the assessment could be less than the award of costs at trial does not change the client's entitlement to have his or her account assessed as against his or her solicitor, although this could lead to a circumstance in which the client would then be obligated to refund some of the amount that has been paid as a result of the party and party assessment.
[6] With respect to the number of bills that may be referred, in our opinion, the bills rendered were all interim accounts. See Price v. Sonsini (2002), 2002 41996 (ON CA), 60 O.R. (3d) 257, [2002] O.J. No. 2607 (Quicklaw) (C.A.).
[7] Accordingly, the appellant is entitled to have all of the accounts relating to the matrimonial litigation assessed. We would allow the appeal and set aside the order of Whitten J. with costs.
Order accordingly.