Court File and Parties

Citation: Katana v. McComb Dockrill, 2008 ONCA 224 Date: 2008-04-02 Docket: C47752

Court of Appeal for Ontario MacPherson, Rouleau and Epstein JJ.A.

Between:

Ljubica Katana and Frank Katana Jr. Applicants/ Appellants in Appeal

and

McComb Dockrill Respondent/ Respondent in Appeal

Application under ss. 4 and 11 of the Solicitors Act R.S.O. 1990, c.S. 15

Counsel: Vusumzi Msi for the appellants Chris Dockrill for the respondent

Heard: April 1, 2008

On appeal from the order of Justice Frank J.C. Newbould of the Superior Court of Justice dated August 24, 2007.

Appeal Book Endorsement

[1] The appellants appeal the order of Newbould J. dated August 24, 2007 dismissing their motion for an order under the Solicitors Act, R.S.O. 1990, c.S. 15, to refer six prior (and fully paid) accounts rendered by the respondent solicitors to the Katana Family Trust for assessment.

[2] The respondent raises a preliminary issue, namely, that the motion judge’s order is an interlocutory order and, therefore, can be appealed only to the Divisional Court. In our view, the motion judge’s order amounts to a final disposition of whether the appellants can obtain an assessment of six accounts for legal services provided to them. As such the appeal is properly taken to this court.

[3] On the merits, we can see no basis for interfering with the motion judge’s conclusion that, pursuant to s. 11 of the Solicitors Act, there were no “special circumstances” requiring an assessment of the six paid (many years before) accounts.

[4] In Guillemette v. Doucet, 2007 ONCA 743 at para. 4, Doherty J.A. observed:

A finding of “special circumstances” turns on a fact driven exercise of judicial discretion. This court will defer to that discretion absent an error in principle or a clearly unreasonable result … .

[5] In our view, the motion judge committed neither type of error in this case. The six legal accounts were paid in full many years before the motion was brought. Importantly, they were paid by other parties, not the appellants. There was never a suggestion that anyone was unhappy with the legal work performed by the respondent during the several years they represented the trust. In these circumstances, the motion judge’s characterization of the motion as “a tit-for-tat reaction to the fact that Ljubica Katana and Katana Jr. have been declared to be personally liable for the last three accounts rather than a genuine concern regarding the size of the previous six accounts” is not, as the appellants contend, pure speculation; it is a rational conclusion drawn from a clear record.

[6] The appeal is dismissed. The respondent is entitled to its costs of the appeal fixed at $3500, inclusive of disbursements and G.S.T.