Ellyn-Barristers v. Stone, 2007 ONCA 565

CITATION: Ellyn-Barristers v. Stone, 2007 ONCA 565

DATE: 20060817

DOCKET: C45206

COURT OF APPEAL FOR ONTARIO

ROSENBERG, ARMSTRONG and JURIANSZ JJ.A.

BETWEEN:

ELLYN-BARRISTERS

Solicitors (Appellants)

and

DAVID M. STONE

Client (Respondent)

Counsel:

Robert G. Schipper for the appellants

Mark M. Orkin, Q.C. for the respondent

Heard and endorsed: August 15, 2007

On appeal from the order of Justice Keith A. Hoilett of the Superior Court of Justice dated March 31, 2006.

APPEAL BOOK ENDORSEMENT

[1] This appeal is essentially fact-driven and we are satisfied that the motion judge made no palpable and overriding error in his assessment of the facts. We are satisfied that the motion judge was entitled to find that there was only one retainer that covered both matters, including the arbitration of the Polon matter and that there was no clean break between the Court of Appeal decision in November 1999 and the arbitration flowing from the trial before Caswell J. It follows that the bill sent to the client in January 2004 was the final bill and the earlier bills were interim accounts. Since the order for assessment was obtained within thirty days from when the final bill was sent, the order of assessment properly applies to all the accounts. It is therefore unnecessary to consider whether there were special circumstances. Accordingly, the appeal is dismissed.

[2] As to the appeal from the costs order, while the reasons of the motion judge are brief, he identified the factors that were most important. As we see no error in principle and it cannot be said that the quantum is plainly unreasonable, leave to appeal costs is refused.

[3] The respondent is entitled to costs fixed at $15,000 inclusive of G.S.T. and disbursements.