DATE: 20030516

DOCKET: C38504

COURT OF APPEAL FOR ONTARIO

IN THE MATTER OF THE SOLICITORS ACT R.S.O. 1990

RE:

MICHELE SAMUELS (Client/Applicant/Respondent in Appeal) ‑ and ‑ DAVID & DAVID (Solicitors/Respondent/Appellant in Appeal)

BEFORE:

MCMURTRY C.J.O., WEILER and MACPHERSON JJ.A.

COUNSEL:

Hedy L. Epstein

for the appellant

Guy Rasquin

for the respondent

HEARD:

May 14, 2003

On appeal from the order of Justice Victor Paisley of the Superior Court of Justice dated October 12, 2001.

E N D O R S E M E N T

[1] The appellant law firm appeals from the order of Paisley J. on three grounds.

[2] First, the appellant asserts that the motion judge erred by ordering that all of the law firm’s accounts to the respondent be assessed.

[3] We agree. The accounts rendered to the respondent between 1993 and 1995 were all paid, without objection. They related to the accident benefits component of the respondent’s claims. The motion judge did not consider, and we cannot see, any “special circumstances” (Solicitor Act, s. 4(1)) that would entitle the respondent to have these accounts assessed more than six years after they were rendered, accepted and paid. Of course, the assessment of the account relating to the motor vehicle action rendered on September 11, 2000 should proceed, as ordered by the motion judge.

[4] Second, the appellant submits that the motion judge erred by not imposing a solicitor’s lien on the personal loan the solicitor made to the respondent.

[5] We disagree. A charging order pursuant to s. 34(1) of the Solicitor’s Act must be made in relation to legal services provided by a solicitor, not personal loans made to clients.

[6] Third, the appellant contends that the motion judge erred by awarding the respondent costs of $2500 on a solicitor and client basis.

[7] We disagree. Costs are discretionary and we see no basis for interfering with the motion judge’s exercise of discretion with respect to the scale and quantum of costs. The fact that the appellant has been successful on one ground of appeal does not alter our conclusion that the motion judge’s costs award should be affirmed.

[8] The appeal is allowed on the assessment of costs issue and dismissed on the other issues. Each party should bear its own costs of the appeal.

“R. Roy McMurtry C. J. O.’

“K. M. Weiler J.A.”

“J. C. MacPherson J.A.”