Court File and Parties

CITATION: Kulidjian & Associates v. Gareene Homes Inc., 2011 ONCA 224

DATE: 20110323

DOCKET: C52694

COURT OF APPEAL FOR ONTARIO

Doherty, Feldman and Epstein JJ.A.

BETWEEN

Kulidjian & Associates

Appellant

and

Gareene Homes Inc.

Respondent

Counsel: Gleb Bazov, for the appellant M. Persaud and J. Morton, for the respondent

Heard and released orally: March 10, 2011

On appeal from the order of Justice J. Kelly of the Superior Court of Justice, dated February 9, 2009.

ENDORSEMENT

[1] In Price v. Sonsini (2002), 2002 CanLII 41996 (ON CA), 60 O.R. (3d) 257 at para. 19, Justice Sharpe discussed the approach to be taken when clients seek to assess their lawyers’ bills. He said:

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.

[2] We take the words of Sharpe J.A. to sound the purpose behind the assessment provisions in the Solicitors Act, R.S.O. 1990, c. S.15 (“the Act”).

[3] In Enterprise Rent-A-Car Co. v. Shapiro, Cohen, Andres, Finlayson (1998), 38 O.R. (3d) 57 (Ont. C.A.), Labrosse J.A. of this court described the scope of s. 3 of the Act in these words:

A client may apply for the assessment of delivered accounts in the following circumstances:

(i) upon requisition from the registrar, within thirty days of delivery (provided that there are no special circumstances and the retainer is not disputed). There is no distinction between paid and unpaid accounts (s. 3(b)). [Emphasis added.]

[4] On the analysis in Enterprise Rent-A-Car Co., supra, the respondent was entitled to proceed in the manner that it did.

[5] We do not read the two subsequent cases from this court relied on by the appellant as departing from the analysis in Enterprise Rent-A-Car Co. and, in particular, the interpretation of s. 3(b). In those two cases (Guillemette v. Doucet (2000), 2007 ONCA 743 (C.A.) and Tripkovic v. Glober 92003), 2003 CanLII 43027 (ON CA), 172 O.A.C. 116, 227 D.L.R. (4^th) 718 (Ont. C.A.), rev’g 16 C.P.C. (5^th) 163 (O.S.C.J.)), s. 3 was not in play. The proposed assessments were long after the 30-day period described in s. 3. The analysis of s. 11 of the Act in those cases does not in any way detract from the comments concerning s. 3 made in Enterprise Rent-A-Car Co.

[6] We are satisfied that the interpretation of s. 3 in Enterprise Rent-A-Car Co. is the correct interpretation. It is consistent with the, admittedly not altogether clear, wording of the statute. More important, it is consistent with the purpose behind the assessment process as described at the outset of these reasons.

[7] In our view, ss. 3 and 11 can live together and both have application to paid accounts. Thirty days is the divide between the two provisions for the purposes of determining whether the assessment can be directed by the Registrar.

[8] We are in agreement with the conclusion reached below and dismiss the appeal.

[9] The application for leave to appeal the costs order is not pursued in light of our decision on the merits. That motion for leave is refused.

[10] The appeal is consequently dismissed with costs to the respondent in the amount of $3,000, inclusive of disbursements and HST.

“Doherty J.A.”

“K. Feldman J.A.”

“Gloria Epstein J.A.”