CITATION: Javornich v. McCarthy, 2007 ONCA 484
DATE: 20070628
DOCKET: C46093
COURT OF APPEAL FOR ONTARIO
MCMURTRY C.J.O., JURIANSZ and ROULEAU JJ.A.
BETWEEN:
MARY JAVORNICH
Applicant (Respondent)
and
TERRI McCARTHY
Respondent (Appellant)
D. Smith for the appellant
Edwin G. Upenieks for the respondent
Heard: May 3, 2007
On appeal from the judgment of Justice Kendra D. Coats of the Superior Court of Justice dated June 8, 2006.
ROULEAU J.A.:
[1] The appellant, a solicitor, appeals the application judge’s decision permitting the assessment of all of her accounts rendered to the respondent client.
[2] The appellant takes the position that the motion judge erred in finding that the respondent’s requisition for the assessment of the appellant’s bills was made within one month of its delivery as required by s. 3(b) of the Solicitors Act, R.S.O. 1990, c. S.15 and failed to take into account the terms of the written retainer which required that any concerns regarding an account be voiced within fifteen days of the bill being rendered.
[3] For the reasons that follow, I would dismiss the appeal.
FACTS
[4] The solicitor met with the client in October 2003 to discuss representing the client in matrimonial proceedings. In November 2003, the client signed a retainer agreement which provided for the payment of a retainer that would be held in trust and would be applied to pay accounts as they were rendered, the delivery of regular interim billing, and the issuance of a final account “in which the complexity of the issues, the obstacles met from opposing counsel/client and the result obtained will also be taken into consideration in fixing the amount of the final fee.”
[5] On April 29, 2005, the client advised the solicitor through email that she was changing solicitors and terminating the retainer. After receiving an interim bill dated April 15, the client requested a final account.
[6] The affidavit filed by an employee in the solicitor’s office advises that he told the client on May 5, 2005 that she should consider the interim account as being final, that he would be sending her a cheque that same day for the bulk of the retainer remaining in trust, but that he would retain a relatively small sum for several days until he could verify that nothing was owing to the process server on the client’s account. The solicitor’s office provided no written confirmation of this exchange.
[7] The client’s evidence was that she expected a final account. She produced an e-mail sent to the solicitor’s office on May 30, 2005 in which she enquires about the final bill. According to the client, it was subsequent to this e-mail, on June 3, that she was told that she should treat the April 15 bill as being final. Later that same day, she received the cheque from the solicitor in reimbursement of the balance of the retainer that had been held in trust.
[8] On June 13, the client wrote the Assessment Office at the Milton Court House for an assessment of the account. On June 15, the client obtained an order for assessment of the solicitor’s account.
[9] The solicitor moved to set aside the order for assessment as having been requested more than thirty days after delivery of the April 15 account. The application judge considered the evidence and, based largely on the client’s May 30 e-mail to the solicitor, found that it was only after May 30 that the client was told to treat the April 15 interim account as being final.
[10] The application judge then used that date as constituting the date of delivery of the final account for purposes of calculating the one month period stipulated in s. 3(b) of the Solicitors Act and rejected the solicitor’s motion to set aside the order for assessment.
ISSUES
[11] There are two issues raised in this appeal:
Did the application judge err in finding that the requisition for assessment was made within one month of delivery of the final account?
Did the application judge err in failing to rule that the clause in the retainer agreement stipulating that the client has fifteen days to question the account overrides the statutory one month period within which to requisition an assessment of an account?
[12] The solicitor also addressed other sections of the Solicitors Act. These submissions only have relevance in the event that the solicitor succeeds on either of the two issues set out above. As I have found against the solicitor on both grounds, I need not address the submissions on the other sections of the Solicitors Act.
ANALYSIS
a) Did the application judge err in finding that the requisition for assessment was made within one month of delivery of the final account?
[13] The solicitor maintains that the application judge had no basis for finding that, for purposes of s. 3(b) of the Solicitors Act, the delivery date of the final account was June 3, 2005.
[14] I would reject this ground of appeal. There was ample evidence in support of the application judge’s finding. The retainer agreement contemplated the issuance of a final bill within which a final fee would be set. As provided in the retainer agreement, the amount of the final fee would depend on a number of factors other than docketed hours. The client was justified, therefore, in seeking a final bill and in waiting for receipt of this final bill before requesting an assessment.
[15] The client’s evidence also supported the application judge’s finding. Her evidence was that the first time she was told that the April 15 interim account should be treated as the final bill was June 3, 2005. It was also on June 3 that the client received the cheque in reimbursement of the balance of the retainer that had been held by the solicitor in her trust account.
[16] Finally, as noted by the application judge, the client’s May 30, 2005 email to the solicitor made it clear that at the end of May she was still waiting for a final account.
b) Did the application judge err in failing to rule that the clause in the retainer agreement stipulating that the client has fifteen days to question the account overrides the statutory one month period within which to requisition an assessment of an account?
[17] The solicitor submits that the retainer agreement reduced to fifteen days the time period within which the client could seek an assessment pursuant to s. 3(b) of the Solicitors Act. The provision in the retainer agreement on which the solicitor relies reads as follows:
I agree to forthwith advise within fifteen days of any discrepancy, inaccuracy and/or query with respect to the account billed. If no such discrepancy, inaccuracy and/or query is voiced, verbally or in writing, by myself, I accept the terms of the accounts billed for services rendered.
[18] The requisition for assessment that is the subject of the challenge by the solicitor was made pursuant to s. 3(b) of the Solicitors Act which reads as follows:
- 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 Superior Court of Justice,
(b) by the client, for the assessment of a bill already delivered, within one month from its delivery;
[19] Because the Solicitors Act does not contain a clause specifically prohibiting the parties from contracting out or waving the rights contained therein, the solicitor submits that the terms of the retainer agreement should govern. Because the client did not raise a concern about the April 15 account within the fifteen days agreed to, she should be prevented from now seeking an assessment of the account pursuant to the terms of the Solicitors Act.
[20] I would reject this ground of appeal and would do so for two reasons.
[21] First, on the facts found by the application judge, the April 15 interim account only became the final account on June 3, 2005. The request for assessment of this final account was made on June 15, well within the fifteen day period stated in the contract.
[22] Second, there are public policy considerations that mete in favour of restricting the parties’ ability to contract out of the rights and obligations created by the Solicitors Act. This court in Plazavest Financial Corp. v. National Bank of Canada (2000), 2000 5704 (ON CA), 47 O.R. (3d) 641 at para. 14 (C.A.), adopted the comments made by Adams J. in Borden & Elliott v. Barclays Bank of Canada (1993), 1993 5450 (ON SC), 15 O.R. (3d) 352 at 357-58 (Gen. Div.) where he said:
The Solicitors Act begins with s. 1 reflecting the legal profession’s monopoly status. This beneficial status or privilege of the profession is coupled with corresponding obligations set out in the Act and which make clear that the rendering of legal services is not simply a matter of contract. This is not to say a contract to pay a specific amount for legal fees cannot prevail. It may. But even that kind of agreement can be the subject of review for fairness: see s. 18 of the Solicitors Act.
[23] Later in Plazavest, this court, while recognizing that the terms of a contract between a solicitor and client are of some significance, rejected “the contention that an agreement between a client and a lawyer may preclude the client from resorting to the Act or the inherent power of the court to seek an assessment of the lawyer’s fees”.
[24] As set out in Price v. Sonsini (2002), 2002 41996 (ON CA), 60 O.R. (3d) 257 at para. 19 (C.A.):
Public confidence in the administration of justice requires the court to intervene where necessary to protect the client’s right to a fair procedure for the assessment of a solicitor’s bill. As a general matter, if a client objects to a solicitor’s account, the solicitor should facilitate the assessment process, rather than frustrating the process.
It would, in my view, be contrary to the public interest to allow solicitors and clients to contract out of the statutory rights granted to clients to have their accounts assessed within the statutory time frame.
DISPOSITION
[25] For these reasons, I would dismiss the appeal. I would award the respondent costs fixed at $3,500 inclusive of GST and disbursements.
“Paul Rouleau J.A.”
“I agree R. McMurtry C.J.O.”
“I agree R. Juriansz J.A.”
RELEASED: June 28, 2007