Tripkovic et al. v. Glober et al.

Tripkovic et al. v. Glober et al. [Indexed as: Tripkovic v. Glober]

64 O.R. (3d) 481

[2003] O.J. No. 1930

Docket No. C37915

Court of Appeal for Ontario

Laskin, Gillese and Armstrong JJ.A.

May 20, 2003

Professions -- Barristers and Solicitors -- Accounts -- Assessment -- Paid bills -- Time limitation in s. 11 of Solicitors Act operative even though bill not particularized -- Solicitors Act, R.S.O. 1990, c. S.15, ss. 2, 3, 4, 11.

In 1994, Joanne Tripkovic retained Saul Glober to act for her and her husband with respect to a tort action arising from a motor vehicle accident. Glober subsequently provided services with respect to the tort action, as well as several related and unrelated matters. In 1996, acting under a written authorization, Glober settled the tort action. On July 31, 1996, Glober mailed his account to the Tripkovics and thereafter transferred the balance of the settlement funds to pay for his fees and disbursements. The bill had few details of his services. In an accompanying letter, Glober stated that the bill was brief because he had discussed the fees and disbursements in person. He offered to provide a more detailed bill. The Tripkovics made no inquiry about the bill, and Glober continued to provide legal services. In 1997, Trikovic obtained an order of assessment of Glober's bills. After several adjourned attendances before an assessment officer, Glober took the position that the order for assessment was defective. On an application by the Tripkovics, J.W. Quinn J. held that the bill for the tort action lacked sufficient particularity to qualify as a bill under s. 11 of the Solicitors Act, which precludes a court from referring for assessment a bill that has been paid unless an application is made within 12 months after payment of the bill and, accordingly, the Tripkovics were entitled to have the bill referred for assessment. Glober appealed.

Held, the appeal should be allowed.

By its language, s. 11 of the Solicitors Act applied. Decisions that stand for the proposition that s. 11 is not to be given its plain meaning, and decisions that have held that a bill that is insufficiently particularized so as to meet the requirements of s. 2(3) of the Act does not count for a bill under s. 11 were incorrectly decided. A consideration of ss. 2(3), 3 and 11 of the Act and of the particular circumstances of the case at bar, where it was understandable why a detailed bill was not provided, showed that a plain reading of s. 11 is warranted. The proposition that a bill lacking in sufficient particularity is not a bill produced unworkable and unrealistic results. In the immediate case, it was unreasonable and unjust to order the assessment of a bill years after the bill was paid, at the request of a sophisticated client who was fully apprised of all steps taken in her proceedings, never sought particulars of the bill although invited to do so, made no inquiry about the bill within the statutorily ordained period, actively condoned payment of the bill and permitted the solicitor to work on her behalf in reliance on that condonation.

APPEAL of a judgment of J.W. Quinn J. (2002), 16 C.P.C. (5th) 163, [2002] O.J. No. 1579 (QL) (S.C.J.) that a solicitor's bill be assessed.

Cases referred to Boland v. Bunker Hill Extension Mines Ltd., 1944 333 (ON CA), [1944] 1 D.L.R. 692, [1944] O.W.N. 99 (Ont. C.A.); Ek-Udofia v. Hopkins, [1997] O.J. No. 76 (QL) (Gen. Div.); Fellowes, McNeil v. Kansa Canadian Management Services Inc. (1997), 1997 733 (ON CA), 34 O.R. (3d) 301 (C.A.), 50 C.P.C. (3d) 239 (Ont. Gen. Div.); Kopij v. Toronto (Metropolitan), [1999] O.J. No. 239 (QL) (C.A.); Matravers v. Bookman & Harris (1980), 1980 1876 (ON SC), 28 O.R. (2d) 607, 111 D.L.R. (3d) 230 (H.C.J.); McLaren v. Caldwell (1882), 1882 3 (SCC), 8 S.C.R. 435, revg (1881), 6 O.A.R. 456 (C.A.); Petty v. Murphy, 1926 327 (ON SC), [1926] O.J. No. 25 (QL), 59 O.L.R. 209 (Sup. Ct.); [page482] St. Jean v. Girones, Ciccone, Wallbridge and Wallbridge, [1993] O.J. No. 2662 (QL) (Gen. Div.); Sternig (Re), [1977] O.J. No. 431 (QL), 4 C.P.C. 221 (Sup. Ct.); Wells v. Biback, [1996] O.J. No. 2337 (QL), 9 O.T.C. 230 (Gen. Div.); Wright v. Wright (1984), 1984 341 (BC CA), 48 C.P.C. 42, 58 B.C.L.R. 89, [1984] B.C.J. No. 1892 (QL) (C.A.) Statutes referred to Solicitors Act, R.S.O. 1990, c. S.15, ss. 2(3), 3, 4, 11

Eric R. Murray, Q.C., for appellant Saul I. Glober. Earle A. Blackadder, Q.C., for respondents.

The judgment of the court was delivered by

[1] GILLESE J.A.: -- Are clients entitled to an assessment of a solicitor's bill, on the basis that the bill was not sufficiently particularized, several years after the bill was paid? It is that question that lies at the heart of this appeal.

Background

[2] The applicant, Joanne Tripkovic ("Tripkovic"), resides in St. Catharines with her husband, Danny Tripkovic. Tripkovic suffered soft tissue injuries in a motor vehicle accident in December 1988.

[3] Tripkovic retained Harry Daniel, Q.C. to act on behalf of herself and her husband. Daniel issued two claims, one in respect of Tripkovic's tort claim and one against her insurer for no-fault benefits.

[4] In February of 1994, Tripkovic alleged that Daniel overcharged her when taking fees from an advance payment from the tort defendant and stated that she was suspicious of Daniel's motives because Daniel often acted for Pilot Insurance Company, the no-fault defendant. She dismissed Daniel and retained the appellant, Saul I. Glober.

[5] Tripkovic was an extraordinarily demanding client. Throughout the time in which Glober acted for the Tripkovics, Tripkovic was intimately and extensively involved in every step of the proceedings. At her insistence, virtually nothing was done and no step taken without thoroughly canvassing the same with her. She received copies of all documents and was, at all times, fully involved in the conduct of the two lawsuits.

[6] Once Glober was retained, he wrote to Daniel requesting the files. Daniel responded with an account for the tort action in [page483] the amount of $10,700 for fees and $2,627.70 in disbursements. Tripkovic insisted that Glober seek a reduction in Daniel's account.

[7] Glober negotiated with the Daniel firm and, at an assignment court at which the parties attended in order to set the date for an assessment of the account, settled the matter when the Daniel firm agreed to reduce its fee account to $5,000 plus the disbursements of $2,627.70 for a total of $7,627.70.

[8] Glober did not render a separate account for those services.

[9] Tripkovic also retained Glober to resolve a claim by Rose City Dodge Chrysler Limited against her in which it was alleged that she owed $2,290 on the purchase of an automobile. Glober defended the suit in Small Claims court and eventually settled for $1,000, which was to be paid by Tripkovic from funds received in the tort action.

[10] Glober did not render a separate account for those services.

[11] Tripkovic further retained Glober to act on her behalf in respect of a dispute with Canada Pension Plan. Initially the Plan granted her a disability pension due to the accident but later, it discontinued the pension. Glober performed extensive services on this matter.

[12] Glober received no payment for his services on this matter nor did he render a separate account for such services.

[13] In the spring and summer of 1996, as the tort action approached trial and after multiple pre-trials, intensive settlement negotiations took place. The Tripkovics were kept fully apprised of the negotiations.

[14] By written Offer to Settle dated June 26, 1996, the tort defendant offered to settle all claims plus interest for $250,000, with costs to be agreed on or settled.

[15] In early July 1996, the Tripkovics executed an Authorization and Direction in respect of the tort action. Under its terms, Glober was to settle the tort claim on a basis that would yield the Tripkovics the sum of $275,000 and Glober's fees and disbursements were to be fully paid by the insurer.

[16] Following further negotiations, the tort action was settled later that month (i.e. July of 1996) for $383,852.99.

[17] On July 30, 1996, Glober met with the Tripkovics and advised them of the settlement. The Tripkovics signed a full and final release that disclosed that the settlement was for $300,000 plus $83,852.99 for costs. Glober gave the Tripkovics a cheque for $274,000, which was the previously agreed upon sum of $275,000 less the $1,000 owing under the Small Claims court settlement.

[18] The following day, Glober prepared his account, mailed it to the Tripkovics and thereafter transferred the balance of the [page484] settlement funds to his general account to pay for his fees and disbursements. The amount he received fell considerably short of his solicitor and client fees.

[19] The bill that Glober sent to the Tripkovics reads as follows:

ACCOUNT

FOR PROFESSIONAL SERVICES rendered on your behalf from time to time including all matters connected with your automobile accident of December 16, 1988, against Kathy Fisher and Gerry Fisher exclusively and not related in any way to the related case of Tripkovic vs. State Farm Insurance. This account includes all necessary consultations, correspondence and attendances with respect to the above, and in particular, as to the specific agreement this date with you,

OUR FEE IN ALL $88,000.00

GST 6,160.00

TOTAL FEE $94,160.00

Disbursements

Pd. Minister of Finance $50.00

Pd. Minister of Finance $268.00 (Trial Record)

Pd. DSL Discovery Services $137.00

Pd. Filing fees $25.00

Pd. Photocopies, fax, courier and long distance charges $148.00

DISBURSEMENTS $628.07 $628.07

TOTAL FEES AND $94,788.07 DISBURSEMENTS

Transferred from trust $94,788.07

Balance due & owing NIL

[20] The bill was accompanied by a letter from Glober to the Tripkovics which reads as follows:

As discussed in person, I confirm the settlement of your claim against Kathy Fisher and Gerry Fisher, which was completed pursuant to your Authorization and Direction. I confirm that we are still proceeding with the matter against State Farm for your no-fault benefits, and I will, of course, keep you up to date as that matter progresses.

I am enclosing, for your records, as requested, a copy of my brief account for services rendered on your behalf, as well as the Authorization and Final Release. I have made the Account quite brief, as my fees and disbursements have been discussed with you in person. If there is any more detail required, please let me know and I will be happy to discuss this further. Trusting this is satisfactory, I remain, . . . [page485]

[21] In the year that followed settlement of the tort action, Glober dealt with Tripkovic on a regular basis as he continued to work on the no-fault action and the Canada Pension Plan dispute. She made no inquiry about his bill for the tort action.

[22] On January 28, 1997, on the eve of trial, the no-fault action was settled for $55,000 plus a cost contribution of $7,500 plus GST and disbursements. Tripkovic signed a handwritten Authorization to Settle the no-fault action.

[23] The Tripkovics executed a full and final release in respect of the no-fault action on March 4, 1997. In April of 1997, the Tripkovics received a cheque for $55,000 from Glober. Glober did not bill the Tripkovics for the full cost of his services on the no-fault action. Instead, he accepted the $7,500 cost contribution from the insurer in full satisfaction of his fees on the no-fault action.

[24] Glober prepared a bill for the no-fault action that was dated March 26, 1997, and sent to the Tripkovics on July 4, 1997.

[25] In the spring of 1997, Tripkovic drew to Glober's attention that he had paid the disbursements of $2,627.70 to Daniel's firm despite the fact that she had already paid for those disbursements. Glober confirmed that an error had been made, obtained the overpayment from Daniel and reimbursed Tripkovic.

[26] In August of 1997, Glober received a letter from the Complaints Department of the Law Society of Upper Canada indicating it had received a complaint from Tripkovic that included an allegation that she had never received a copy of his bill in the tort action. Glober provided the Law Society with a copy of the original account that he had sent to the Tripkovics on or about July 31, 1996 and the trust reconciliation, which showed the repayment of $2,627.70 that had been recovered from Daniel.

[27] On September 25, 1997, the Law Society forwarded a copy of the same to the Tripkovics.

[28] On August 11, 1997, unbeknownst to Glober, Tripkovic obtained an order for assessment of Glober's bills for both the tort and no-fault actions.

[29] In January 1998, the Tripkovics retained the services of Mr. Hanna to represent them as counsel on the assessment of Glober's two bills. Hanna demanded that Glober deliver to him the Tripkovics' files. Glober initially refused to do so.

[30] Glober provided Hanna with the files in December of 1998. He did not keep a copy of the files.

[31] There were various attendances before assessment officers over a two-year period, each of which led to an adjournment.

[32] In the transcript of an attendance before Assessment Officer Thomas dated June 19, 1998, Thomas stated that Tripkovic was a [page486] sophisticated client. The applications judge accepted the accuracy of that statement.

[33] In April of 1999, Glober took the position that the order for assessment was defective. On April 26, 1999, Assessment Officer Cumming adjourned the matter to October 26, 1999, and advised Hanna to proceed with an application to a judge in Toronto for an order for assessment.

[34] By letter dated June 5, 2001, the Tripkovics fired Hanna. In July of 2001 they retained their current counsel.

[35] The application that is the subject matter of this appeal was issued on August 15, 2001. Five affidavits were filed in the matter: the Tripkovic affidavit sworn August 19, 2001; the Glober affidavit sworn August 30, 2001; the Tripkovic affidavit sworn September 10, 2001; the joint affidavit of the Tripkovics sworn November 20, 2001; and the Glober affidavit sworn December 20, 2001. There were no cross-examinations on any of the affidavits.

[36] The application claimed relief against both Glober and Hanna. The Hanna matter did not proceed as Hanna consented to the relief sought against him.

[37] In Tripkovic's first affidavit, she said that she did not believe that there was a retainer agreement between her and Glober. In his second affidavit, Glober produced a copy of the retainer dated May 9, 1996, and signed by Tripkovic. Among other things, the retainer agreement stipulates an hourly rate of $350 and a daily charge of $3,500 for discoveries. Glober deposed that he prepared the retainer when he became uncomfortable with Tripkovic who had gloated to him that she had succeeded in having a medical doctor disciplined.

[38] In her first affidavit, Tripkovic made no mention of the Authorization and Direction that she had executed in respect of the tort action. Glober appended a copy of an undated Authorization and Direction to his first affidavit. On December 19, 2001, Glober's correspondence to the Tripkovics was returned to him by Tripkovics' counsel. In the correspondence, Glober discovered a copy of his letter dated July 31, 1996, which accompanied his tort account of the same date and enclosed a copy of the executed Authorization and Final Release. Glober provided the same as attachments to his second affidavit.

[39] In the third affidavit, the Tripkovics said that they had "forgotten" that they had signed an Authorization and Direction.

[40] In his first affidavit, Glober also swore that Tripkovic accosted him on the street on April 7, 1998, threatened him with bodily harm and suggested that he "check her brother's criminal record". Glober reported the incident to the Hamilton- Wentworth Police Department. On the same day, Tripkovic left a note on the [page487] windshield of Glober's car that stated, among other things, that her goal was to see him disbarred. A copy of the note was attached to his affidavit.

[41] Tripkovic's version of events surrounding settlement of the tort action changed dramatically between her first and third affidavits. Both versions were proven to be untruthful, as the applications judge found, in part by Glober's production in his second affidavit of, among other things, a cancelled cheque for $274,000 showing that Tripkovic had cashed it on July 30, 1996.

[42] The applications judge found that Tripkovic swore to a number of untruths. Among other things, he found that Tripkovic was "mistaken" in her first affidavit when she swore that she had executed no retainer and that Tripkovic was not to be believed in respect of her sworn testimony that she made a number of requests of Glober for an accounting of both actions. The judge noted the inherent improbability of the truth of such a statement without a single confirming letter.

[43] In relation to the Tripkovics' statement that they had "forgotten" about the Authorization and Direction in the tort action, the applications judge said, "It is difficult to understand why the applicants would not have remembered this important document."

[44] The applications judge found Tripkovic to be not credible in her evidence and "entirely mistaken about the sequence of events". He said that she was not to be believed when she swore that she executed a full and final release in blank on July 31, 1996, at Katz Restaurant. In fact, the applications judge found that "The whole story about the meeting on July 31 was a patent falsehood."

The Relevant Legislation

[45] In the balance of the judgment, ss. 2(3), 3, 4 and 11 of the Solicitors Act, R.S.O. 1990, c. S.15, are frequently referred to. For convenience, they are set out now.

2(3) A solicitor's bill of fees, charges or disbursements is sufficient in form if it contains a reasonable statement or description of the services rendered with a lump sum charge therefor together with a detailed statement of disbursements, and in any action upon or assessment of such a bill if it is deemed proper further details of the services rendered may be ordered.

3. 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 Ontario Court (General Division),

(a) by the client, for the delivery and assessment of the solicitor's bill; [page488]

(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.

4.(1) 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.

(2) Where the reference is made under subsection (1), the court or judge, in making it, may give any special directions relative to its costs.

11. The payment of a bill does not preclude the court from referring it for assessment, if the application is made within twelve months after payment, and if the special circumstances of the case, in the opinion of the court, appear to require the assessment.

The Decision Below

[46] Section 11 of the Act precludes a court from referring for assessment a bill that has been paid, unless an application is made within 12 months after payment of the bill.

[47] The applications judge found that the no-fault bill met the requirements of s. 2(3) of the Act and that s. 11 was a complete bar to its assessment, more than 12 months having passed since payment. As a result, he dismissed the application for an assessment of the no-fault bill.

[48] The applications judge took a different view of the tort action bill. He concluded that a bill lacking sufficient particularity does not qualify as a bill under the Act. He found that the tort action bill fell short of what is required by s. 2(3) of the Act and, therefore, that it was not a bill for the purposes of s. 11 of the Act. As a consequence, in his view, time never began to run under s. 11 and the applicants were entitled to have the bill referred for assessment. He ordered Glober to deliver a fresh tort bill that complied with s. 2(3) of the Act and, once delivered, the bill was referred for assessment.

[49] The applications judge made no award as to costs. In coming to that decision, the applications judge referred to the fact that success was divided and to the "sworn untruths" of the applicants that "touched upon important issues and were deliberate". He concluded, at para. 65, that

It is because of the sworn untruths of the applicants that I think they should be deprived of the party-and-party costs to which they otherwise would be entitled. [page489]

The Issues

[50] The appellant appeals from the order referring the tort bill for assessment. In addition, he seeks leave to appeal from the order as to costs and, if leave is granted, he asks that costs of the proceeding below be awarded against the respondents "on the appropriate indemnity scale".

[51] The respondents ask, by way of cross-appeal, that costs of the proceeding below be awarded against the appellant.

[52] In order to decide this appeal, the following three issues must be addressed:

1. Does s. 11 apply to the tort bill so as to bar the court from referring it for assessment?

2. Does the tort bill meet the requirements of s. 2(3) of the Act?

3. Ought the costs award below be set aside and costs of the application be ordered as against either party to the application?

Issue 1: Does s. 11 of the Act apply to the tort bill?

[53] The relevant portion of s. 11 provides that:

The payment of a bill does not preclude the court from referring it for assessment, if the application is made within twelve months after payment . . .

[54] Payment of the tort bill occurred on or about July 31, 1996. The application for assessment of the tort bill was made in August of 2001, some five years after the bill was paid. Even if the Tripkovics first received the bill from the Law Society in September of 1997, the application was made almost four years after they received the bill. I add that, in my view, it is highly improbable that the Tripkovics did not receive the bill shortly after its date of July 31, 1996, given that they offer no explanation for how they became aware of the overpayment to Daniel, an item which was disclosed on the bill and not otherwise and which Tripkovic raised with Glober in the spring of 1997.

[55] On a plain reading of s. 11, there can be no doubt but that it applies. Payment occurred on July 31, 1996, by means of a transfer of trust funds; the application for assessment was not made within the ensuing 12-month period. It follows that, absent fraud or gross misconduct, which are not alleged, [See Note 1 at end of document] the court below was precluded from referring the bill for assessment. [page490]

[56] Interpretation of legislation is to be performed contextually. Thus, it is necessary to consider s. 11 in accordance with the scheme and purposes of the Act. The purpose of ss. 2(3), 3, 4 and 11 is to provide assistance to both clients and solicitors in relation to bills rendered by solicitors. They reflect a balance between the legitimate need of clients to challenge accounts in an expeditious way with the equally legitimate need of solicitors to be paid for their services.

[57] A client may obtain an order for particulars of a bill, in an action upon or assessment of a solicitor's bill, pursuant to s. 2(3). Section 3(a) provides assistance to a client who has duly retained a solicitor but the solicitor has failed to provide the client with a bill. Pursuant to that provision, the client can obtain delivery and assessment of the solicitor's bill through an order of a local registrar. Section 3(b) empowers a client to move for an order from a local registrar for the assessment of a bill, so long as he or she does so within a month of delivery of the bill. A solicitor may move, pursuant to s. 3(c), for assessment of a bill a month after its delivery, so long as no assessment order has previously been made.

[58] Section 11 governs the situation where a client pays a bill yet wishes to have the bill assessed. In such a situation, the client must apply to a court within 12 months of payment and show special circumstances sufficient to persuade the court to order the assessment. From the client's perspective, s. 11 provides a mechanism to obtain an assessment of a bill that has been paid where some time has passed. Section 11 also provides assistance to the solicitor, as it brings some finality to those situations in which clients have paid their bills. The rights of the client and the needs of the solicitor are balanced through the legislative choice of a 12-month period coupled with the requirement for special circumstances.

[59] A contextual and purposive interpretation of s. 11 accords with a plain reading of its provisions.

[60] However, a number of decisions of lower courts stand for the proposition that s. 11 is not to be given its plain meaning. Such cases have held that a bill that is insufficiently particularized so as to meet the requirements of s. 2(3) is not a bill such that time begins to run for the purposes of s. 11. Time begins to run under s. 11 only after a bill in compliance with s. 2(3) has been delivered and deduction of the amount of the account from proceeds held in trust does not amount to payment of the account within the meaning of s. 11. See, for example, St. Jean v. Girones, Ciccone, Wallbridge and Wallbridge, [1993] O.J. No. 2662 (QL) (Gen. Div.), Wells v. Biback, [1996] O.J. No. 2337 (QL), 9 O.T.C. 230 (Gen. Div.) [page491] and Ek-Udofia v. Hopkins, [1997] O.J. No. 76 (QL) (Gen. Div.).

[61] On this view, a client could have a generalized bill assessed five, ten or 50 years after it was paid. No special circumstances would have to be shown as the bill would not be a bill and time could not run under s. 11.

[62] A consideration of the general operation of ss. 2(3), 3 and 11 and of the specific circumstances of the case at bar show that a plain reading of s. 11 is warranted. Let us begin with a consideration of the consequences of holding that a bill lacking in sufficient particularity is not a bill. In my view, such a view produces unworkable and unrealistic results. For example, would a client who receives such a bill be unable to obtain an order for further details pursuant to s. 2(3) of the Act? Section 2(3) speaks of an action or assessment upon a solicitor's "bill". If such a bill is not a bill, a client could not obtain an order for assessment pursuant to s. 3(b) of the Act as it applies to "bills". If such a bill is not a bill, a client could not rely upon it to make application to the court pursuant to s. 4(1), as that section also refers to "bills".

[63] Surely, there must be a difference between the situation where a bill lacking in particularity is rendered -- which would trigger the right to request details pursuant to s. 2(3) and to request an assessment under s. 3(b) or 4(1) -- and that envisaged by s. 3(a) where no bill is rendered and the client may request delivery and assessment of the same. These observations show the fallacy in the argument that to treat the Glober bill as a "bill" for the purposes of s. 11 would require one to give it a meaning different than it bears elsewhere in the Act. Treating the Glober bill as a bill for the purposes of s. 11 is consistent with treating it as [a] bill for the purposes of obtaining details pursuant to s. 2(3) or an assessment pursuant to ss. 3(b) or 4(1).

[64] Turning then to a consideration of the case at bar, in my view a plain reading of s. 11 accords with both common sense and fairness. From a commonsensical point of view, failure to provide a detailed bill is completely understandable in the case at bar. A detailed bill enables clients to know what services have been performed on their behalf. Tripkovic was a sophisticated client who had been deeply involved in the tort litigation process. She was aware of, and had participated in, the conduct of every step of the process. She had executed the retainer that set out Glober's hourly rates. The Authorization and Direction made clear the terms upon which the settlement of the action was to be concluded. At the time that it was executed, the services had been rendered. The full and final release referred to the settlement terms. She was invited, by letter accompanying [page492] the bill, to ask for details if she wished particulars. She made no such requests.

[65] Another reason for sending a bill is to trigger payment. Here, as the Tripkovics well knew, they were not responsible for paying Glober's fees. The Authorization and Direction made it clear that they were to receive $275,000 by way of settlement and Glober was to look to the insurer for recovery of his fees.

[66] Yet another reason for requiring a detailed bill is to enable a client to have it independently scrutinized by a third party professional, whether solicitor or taxing officer, to determine whether the bill was reasonable. The absence of detail in the Glober tort action bill precluded such scrutiny. But, it must be noted that the legislation never intended to give clients an unfettered right to an assessment. It specifically limited a client's right to have a paid bill assessed to a period of 12 months following payment of a bill and then, only in special circumstances.

[67] The need for a detailed bill did not exist as the Tripkovics were aware of the services that had been rendered on their behalf and they were not responsible for paying the bill. The right to have the bill assessed was not unlimited. For 12 months after payment of the bill, the Tripkovics had the right to move for an order for details (s. 2(3)) or, subject to satisfying the court of special circumstances, an assessment (s. 11).

[68] Turning next to fairness considerations, I begin by noting that Tripkovic's conduct in the year following payment of the tort bill was tantamount to condonation. For a year after the bill was paid, with Tripkovic's full concurrence and approval, Glober continued to work on her behalf on the no- fault and pension matters.

[69] Glober achieved an excellent result on both the tort and the no-fault actions. Overall, the Tripkovics obtained $400,000 for a soft tissue injury with all associated legal costs being paid from other funds. In addition, several other legal matters were resolved on Tripkovic's behalf including settlement of Daniel's fee and the claim by [Rose City Dodge Chrysler Limited] and pursuit of the pension dispute.

[70] It is unreasonable and unjust to order the assessment of a bill years after the bill was paid, at the request of a sophisticated client who was fully apprised of all steps taken in an action on her behalf, never sought particulars of a bill although invited to do so, made no inquiry about the bill within the statutorily ordained period, actively condoned payment of the bill and permitted the solicitor to continue to work on her behalf in reliance on that condonation.

[71] In my view, the cases in which generalized bills were held not to be bills for the purposes of time running pursuant to s. 11 [page493] have been incorrectly decided. The error stems from a misplaced reliance upon the early cases of Petty v. Murphy (1926), 1926 327 (ON SC), 59 O.L.R. 209, [1926] O.J. No. 25 (QL) (Sup. Ct.) and Re Sternig (1977), 4 C.P.C. 221, [1977] O.J. No. 431 (QL) (Sup. Ct.). Petty v. Murphy involves an action by a solicitor based on s. 2(3), not s. 11. Section 2(3) is discussed below but even a cursory review of its provisions shows that its purpose and wording is markedly different than that of s. 11. Nor is Sternig decided on the basis of s. 11. In Sternig, s. 4(1) is in issue. Factually, Sternig is very different than the case at bar. In Sternig, the first "bill" blended fees and disbursements so that it could not be known what portion of the "bill" related to fees. That is a clear violation of s. 2(3). Moreover, the client alleged fraud in Sternig.

[72] A careful reading of the cases cited by the respondents as authority for the proposition that a generalized bill does not trigger the operation of s. 11 are in fact cases in which a solicitor is taking action under s. 2(3) (e.g. Petty, supra, Ek-Udofia, supra), which involve fraud (e.g. Matravers v. Bookman & Harris (1980), 1980 1876 (ON SC), 28 O.R. (2d) 607, 111 D.L.R. (3d) 230 (H.C.J.) or where no bill of account was ever sent (e.g. St. Jean, supra).

[73] This is not a case of a solicitor suing on his account. Nor is it a case where a client never received a bill or alleges fraud. It is a case in which a solicitor obtained excellent results for a sophisticated client, with the approval of the client saw that his account was paid by means of recovery on the actions and continued to do further work to good effect for the client who, years later, ambushed him. In the circumstances, s. 11 applies to preclude the court from referring it for assessment.

Issue 2: Does the tort bill meet the requirements of s. 2(3) of the Act?

[74] The appellant asks this court to find that, in any event, the tort bill meets the requirements of s. 2(3) of the Act.

[75] Section 2(3) provides that:

A solicitor's bill . . . is sufficient in form if it contains a reasonable statement or description of the services rendered with a lump sum charge therefor together with a detailed statement of disbursements . . . .

[76] This court established the test for determining whether a bill is "sufficient in form" in Boland v. Bunker Hill Extension Mines Ltd., 1944 333 (ON CA), [1944] 1 D.L.R. 692, [1944] O.W.N. 99 (Ont. C.A.) at pp. 694-95 D.L.R. as:

. . . the contents of the bill must at the same time show sufficient information to enable a Taxing Officer of the Court to determine whether such charge is or is not reasonable for the services rendered. [page494]

[77] The British Columbia Court of Appeal considered the Boland test in Wright v. Wright, 1984 341 (BC CA), [1984] B.C.J. No. 1892 (QL), 48 C.P.C. 42 (C.A.) and, at para. 12, rejected it saying:

The words "reasonably descriptive" do not require that the bill set out an elaborate description of the services performed or that the bill be in such form as will enable the client's solicitor to advise him on the reasonableness of the bill. In this respect I disagree with the reasons given in Boland.

[78] Boland was decided in 1944. In my view, it is time for the test to be revisited. Bills lacking in particulars are not unknown in the practice of law and there are situations, in my view, where a generalized form of bill is sufficient. In making such comments, it should not be taken that I am suggesting that generalized bills are generally acceptable. Clearly, much legal work is performed in situations where a bill with sufficient particulars is required so that the client is both informed of the services rendered on his or her behalf and able to obtain advice as to the reasonableness and propriety of the bill. Equally clearly, there are situations in which a generalized form of bill is sufficient. What is "sufficient in form" and gives a "reasonable statement or description of the services rendered" is surely dependent upon the context and any new formulation of the test must take that into account.

[79] Such a reconsideration of the test is more properly undertaken in a case in which s. 2(3) is central to the result and where the matter has been fully argued. The instant case turns upon the applicability of s. 11 and, in light of the conclusion reached thereon, the question of whether the bill satisfies the requirements of s. 2(3) of the Act need not be decided.

[80] It will be apparent from the discussion of the relevant legislative provisions undertaken in the foregoing section that, in my view, even if the tort bill were insufficient in form to meet the requirements of s. 2(3), there is nothing inconsistent in finding it sufficient for the purposes of s. 11.

[81] The appellant argued that s. 2(3) is solely a restraint that applies to solicitors bringing actions on their accounts. In light of the conclusion reached upon s. 11, I need not decide this matter. I would, however, offer the observation that such an interpretation appears to fly in the face of the express language of the concluding portion of s. 2(3) which provides for assessments as well as actions in the following words:

. . . and in any action upon or assessment of such a bill if it is deemed proper further details of the services rendered may be ordered.

(Emphasis added) [page495]

Issue 3: Costs of the application

[82] When an appeal is allowed and, as in the instant appeal, the appellant has asked that the costs order below be set aside, the general principle is that the costs order at trial is set aside and costs at trial and on appeal are awarded to the successful appellant. The court has a discretion to depart from this approach in unusual circumstances. See Kopij v. Toronto (Metropolitan), [1999] O.J. No. 239 (QL) (C.A.).

[83] When the Tripkovics made their application, the prevailing law on s. 11 was in their favour. The decision to overturn the lower court jurisprudence can fairly be termed "unusual circumstances" such that this court must consider whether to exercise its discretion and depart from the general principle. See McLaren v. Caldwell (1881), 6 O.A.R. 456 (C.A.).

[84] In exercising its discretion, the court must be mindful of the competing consideration raised by the appellant, namely the applications judge's finding that Tripkovic had given false evidence. In oral argument, the appellant argued that in light of such findings, costs of the application should be awarded against the respondents on a solicitor and client basis.

[85] In my view, there is a good argument to be made that the circumstances of the case at bar warrant a costs award on a solicitor and client basis. Tripkovic has been found to have deliberately told the court untruths about important matters in issue. In addition, there was uncontroverted evidence before the applications judge that Tripkovic had threatened Glober in the course of the proceedings. Misconduct of this significance and severity warrants court sanction.

[86] However, it is my view that while the appellant, who has been wholly successful on appeal, should be entitled to the costs of the proceeding below, a party and party basis is the appropriate scale given the competing considerations at play.

[87] In light of the results on appeal, the respondents' cross appeal in which they seek costs of the application, is dismissed. I would have dismissed the cross appeal, in any event, for the following reasons.

[88] The foundation of the respondents' cross appeal was that the applications judge erred in concluding that Tripkovic was untruthful. In making this argument, the respondents canvassed the applications judge's findings on the Authorization and Direction, the release and the requests for an accounting of the two actions, and offered comments as to why a different view of Tripkovic's evidence could be taken. In light of those comments, they submit that the applications judge unreasonably concluded that Tripkovic had given false evidence. [page496]

[89] The applications judge's findings of fact are to be accorded a high degree of deference, even where no oral evidence was heard. In my view, the respondents failed to demonstrate that the applications judge made any error in his findings. There is nothing in the alternate view of the evidence proposed by the respondents that supports their contention that the applications judge erred in his apprehension of the evidence. On the record before the applications judge, it was open to him to make the findings that he did. In my view, his findings are so fully supported by the record that they could be termed inescapable.

Disposition

[90] Accordingly, I would allow the appeal, grant leave to appeal the costs award and allow the costs appeal. I would award the appellant costs of the proceeding below, on a party and party basis, as assessed, and costs of the appeal fixed in the amount of $12,500.

[91] I would dismiss the cross appeal.

Order accordingly.

Notes

Note 1: The court has inherent jurisdiction to order an assessment after the 12-month period in circumstances of fraud and gross misconduct. See Fellowes, McNeil v. Kansa Canadian Management Services Inc. (1997), 1997 733 (ON CA), 34 O.R. (3d) 301 (C.A.).