ONCA 84

DATE: 20110201

DOCKET: C51543

COURT OF APPEAL FOR ONTARIO

Goudge, Armstrong and Epstein JJ.A.

BETWEEN

Angela Assuras Professional Corporation

Appellant

and

Advocates LLP

Respondent

Angela Assuras and K. Peacocke, for the appellant

Tom J. Corbett, for the respondent

Heard: January 25, 2011

On appeal from the order of Justice Lynne Leitch of the Superior Court of Justice, dated December 18, 2009.

By The Court:

[1] This is an appeal from the dismissal by Leitch J. of the appellant’s appeal from the assessment of the respondent’s solicitor/client bills to the appellant. It arises out of the retaining of the respondent by the appellant (who is herself a lawyer) to assist her at a trial. It is a sorry story of neither ensuring a smooth working relationship. The question for this court is whether there is any basis to interfere with the decision appealed from.

[2] The appellant argues that neither on assessment nor on appeal was there a proper appreciation of the subordinate role to be played by the respondent nor of the fact that it was to take place within a context of cost constraint.

[3] We disagree. As Leitch J. recognized, the assessment officer was fully aware of the work done by the respondent, and found that, whatever the appellant’s view of the need for cost constraint, all of this work was done at the behest of the appellant. Moreover the assessment officer made his assessment of the value of that work based on all the relevant factors required by the jurisprudence. This argument therefore fails.

[4] Then the appellant argues that the decision appealed from is inconsistent with the conclusion of the trial judge, in his reasons for costs, that certain amounts charged by the respondent were excessive.

[5] This fails to recognize that the trial judge was conducting an assessment of party and party costs. They arise in a different circumstance, in which the paying party has no power to direct or curtail what the solicitor does. Here the respondent was the appellant’s lawyer. A large part of the difficulty arose because the appellant did not play her part in sufficiently directing or limiting her lawyer’s activities. Her evidence that she did so was rejected.

[6] The appellant also argues that too little attention was paid below to the fact that the respondent’s initial estimate of costs was some $50,000 and yet the accounts ultimately exceeded $150,000.

[7] Again we disagree. The assessment officer was well aware of the initial estimate and of what transpired following. The appellant was told from time to time by the respondent of the cost of the work he was doing and that it was growing significantly beyond the original estimate. Yet she had him continue his work. Being a lawyer herself, she knew what was coming, and having received his previous bills, would have had some idea of what that would cost her. It is true that, for his part, the respondent should have provided her early on with a revised assessment of his ultimate costs. Clients should not be left without this information. However, in the circumstances of this case that failure cannot be said to have resulted in any real surprise to the appellant.

[8] That leaves the question of whether, viewed overall, the accounts were unreasonable. This is an important element of an assessment that must go beyond a simple calculation depending on hours and rates. It requires a broad view of what was reasonably required of the lawyer given what was at stake. Here the assessment officer made such an assessment and found the accounts reasonable. Leitch J. found that this conclusion does not reflect an error in principle. There is no basis for this court to interfere with that conclusion.

[9] The appeal is dismissed.

[10] Costs of the appeal to the respondent fixed at $5,000 inclusive of disbursements and applicable taxes.

RELEASED: FEB 01 2011 (“S.T.G.”)

“S. T. Goudge J.A.”

“Robert P. Armstrong J.A.”

“G. J. Epstein J.A.”