DATE: 20050308

DOCKET: C39949

COURT OF APPEAL FOR ONTARIO

RE:

JAMES DAUNCEY (Appellant) – and – PAUL D. H. BURGESS (Respondent)

BEFORE:

SIMMONS, GILLESE AND LAFORME JJ.A.

COUNSEL:

Russell W. Palin

for the appellant James Dauncey

R. Brendan Bissell

for the respondent Paul Burgess

HEARD & RELEASED ORALLY:

March 3, 2005

On appeal from the order of Justice David Salmers of the Superior Court of Justice dated December 4, 2002.

E N D O R S E M E N T

[1] The appellant appeals from the decision of Salmers J. refusing to confirm the report of Assessment Officer Edwards reducing a solicitor’s account. Salmers J. confirmed the account in full.

[2] In our view, Salmers J. was entitled to conclude that the assessment officer ignored evidence or misapprehended evidence when the assessment officer found that the hours spent by the solicitor were not supported by the evidence.

[3] There is no dispute that the solicitor failed to record his time on his time dockets contemporaneously and that the assessment officer was entitled to find, as he did, that the solicitor’s docket entries were unreliable. However, the assessment officer did not refer in his reasons to the detailed account proffered by the solicitor and did not consider whether that account, together with the time estimates the solicitor provided of the time spent on the various tasks on an amended version of that account, were sufficient to support the solicitor’s claim for time spent.

[4] On the other hand, Salmers J. reviewed the details of the work the solicitor completed and found that the overall time spent by the solicitor was reasonable and necessary. On our review of the record, Salmers J.’s finding concerning time spent was supported by the evidence while the assessment officer ignored or misapprehended relevant evidence.

[5] The oral contract entered into between the solicitor and the client was specific, it was based on an hourly rate, and it did not provide for a bonus. Nevertheless, the solicitor charged a bonus of $8,800. In the face of his contract with his client the solicitor was not entitled to charge a bonus and Salmers J. erred in confirming that portion of the solicitor’s account.

[6] Finally, Salmers J. gave no reasons for interfering with the assessment officer’s finding concerning disbursements. It appears that there was a basis for the assessment officer’s finding concerning disbursements. Salmers J. was therefore not entitled to interfere.

[7] In the result, the order of Salmers J. is varied to provide that the solicitor’s fee of $40,000 is reduced by the amount of the bonus, namely $8,800; the disbursements of $2,961.15 are reduced to $2,517.15, and the applicable G.S.T. is to be adjusted accordingly.

“Janet Simmons J.A.”

“E.E. Gillese J.A.”

“H.S. LaForme J.A.”