Court of Appeal for Ontario

Citation: Samuel Eng and Associates v. Ho, 2009 ONCA 150

Date: 20090217

Docket: C49428

Between:

Samuel Eng and Associates

Respondent (Respondent in appeal)

and

Pak Hung Ho and Sophia Chow

Applicants (Appellants in appeal)

Counsel:

Ford W. Wong and Brendon Walker, for the appellants

James H. Chow for the respondent

Heard and released orally: February 10, 2009

On appeal from the Order of Justice Rose Boyko of the Superior Court of Justice dated August 28, 2008.

ENDORSEMENT

[1] This appeal must be allowed. The appeal judge failed to address or apply the appropriate standard of review of the assessment officer’s decision. It is settled law that on an appeal from an assessment officer, the court is only concerned with questions of principle not with questions of amount or how the assessment officer exercised his discretion unless the decision is so unreasonable as to amount to an error in principle.

[2] The appeal judge took a different view of the relative success achieved. This does not rise to an issue of principle entitling her to interfere with the decision of the assessment officer. His findings of fact, particularly with respect to the issues surrounding the bonus, were supported by the evidence. In light of those findings, he considered the factors normally applicable to the assessment of a solicitor’s account. We see no error in principle in his reasoning or in the result.

[3] The appeal is allowed and the order of the assessment officer is restored.

[4] Costs of this appeal in favour of the appellants are fixed in the amount of $5,000 inclusive of GST and disbursements.

“W. Winkler C.J.O.”

“S. Goudge J.A.”

“G. Epstein J.A.”