DATE: 20060123

DOCKET: C43146

COURT OF APPEAL FOR ONTARIO

RE:

ELISE JILL HALLEWICK (Appellant) v. MORTON ADELSON (Respondent)

BEFORE:

MCMURTRY C.J.O, DOHERTY and GILLESE JJ.A.

COUNSEL:

Robert Patchett

for the appellant

Morton Adelson

appearing in person

HEARD: January 19, 2006

RELEASED ORALLY: January 19, 2006

On appeal from the judgment of Justice Cheryl Robertson of the Superior Court of Justice dated February 3, 2005.

E N D O R S E M E N T

[1] The order under appeal was based on the motion judge’s determination that the solicitor of the respondent’s account was final. In our view, she erred in that determination. The solicitor’s account did not account for amounts of money that he had received from the client or on the client’s behalf, and did not account for or set out any disbursements made on behalf of the client. Without that accounting and proper identification of the disbursements paid on behalf of the client, the bill could not be regarded as a final bill between the solicitor and his client, the appellant.

[2] Had the motion judge properly concluded that the bill in issue was not a final bill, she could have directed the appellant to proceed under s. 3(a) of the Solicitors Act and requisition from the Registrar an order directing the solicitor to provide the final bill. Once that final bill was delivered to the appellant/client, she could then move under s. 3 and requisition an order for an assessment of that final bill. That is no doubt what would have happened. As it is clear that an assessment would have been the eventual result given the breakdown in the relationship between the solicitor and the appellant/client, the motion judge could simply have directed the solicitor to provide his final bill and ordered an assessment of that bill. It is open to this court to make the order that the motion judge could have made. In our view, the proper order is to direct the solicitor to provide the appellant/client with his final bill within 30 days of today and to direct that either party may have the bill assessed in Kingston, Ontario.

[3] The appeal is allowed, the order below set aside, and an order may issue in the terms of this endorsement.

[4] In the circumstances, there will be no order as to costs with respect to the appeal before us, or on any of the motions in this court or on the motion before Robertson J.

“McMurtry C.J.O.”

“Doherty J.A.”

“E.G. Gillese J.A.”