COURT OF APPEAL FOR ONTARIO
CITATION: Bales Beall LLP v. Fingrut, 2013 ONCA 266
DATE: 20130429
DOCKET: C56235
Laskin, Cronk and Hoy JJ.A.
BETWEEN
Bales Beall LLP
Solicitors (Respondents in Appeal)
and
Karen Fingrut
Client (Appellant)
Howard E. Warren, for the appellant
Rebecca Jones and Lindsay Beck, for the respondent
Heard: April 24, 2013
On appeal from the judgment of Justice Peter Lauwers of the Superior Court of Justice, dated October 12, 2012.
By the Court:
I. Introduction
[1] This appeal arises from a client’s assessment of her solicitors’ bill of costs under the Solicitor’s Act, R.S.O. 1990, c. S. 15. The client, Karen Fingrut, appeals from the motion judge’s decision declining to confirm the report and certificate of the assessment officer, setting aside the assessment officer’s award, and varying the recoverable quantum of the respondent solicitors’ bill of costs.
[2] We see no basis on which to interfere with the motion judge’s decision.
II. Discussion
[3] The motion judge made four critical findings that, in our view, are dispositive of this appeal.
[4] First, he held that the assessment officer erred in his evaluation of the skill and competence of the solicitors in their conduct of the appellant’s matrimonial litigation with her husband because the assessment officer’s findings on this issue were not supported by the evidence.
[5] To the extent that the motion judge’s reasons may be read as suggesting that expert evidence is always required at an assessment hearing on the issue of the applicable standard of practice, we agree with the appellant that the motion judge erred. Expert evidence on the standard of competence and skill required of a lawyer in a particular case, while often useful at an assessment hearing, is not a prerequisite to a consideration of the quality of the legal services reflected in a solicitor-client bill that is challenged on assessment. However, that is not the end of the matter.
[6] In this case, the appellant advanced numerous complaints about her solicitors’ conduct before the assessment officer and the motion judge. She renews many of these complaints before this court.
[7] Some of the appellant’s complaints were not expressly addressed in the assessment officer’s and the motion judge’s reasons. This is understandable because several of her complaints are wholly irrelevant to the question of the reasonableness of the solicitors’ bill of costs. As relevant to that central issue, we agree with the motion judge that there was no evidence before the assessment officer establishing that the solicitors lacked skill and competence in their representation of the appellant. Where, as here, the client’s case is resolved before trial by way of voluntary settlement agreed upon by the client, evidentiary support is generally required for a claim of deficient or incompetent assistance by counsel. There was no evidentiary support here for the assessment officer’s conclusory criticisms of the solicitors’ performance.
[8] Second, the motion judge held that the assessment officer erred by treating the former costs grid as the benchmark for setting the appropriate hourly rates for the lawyers and support staff involved in the management of the appellant’s case, notwithstanding the existence of a written retainer agreement that specified the applicable rates and terms of the fee agreement between the parties.
[9] We agree. The assessment officer paid scant attention to the terms of the retainer agreement. The agreement and the monthly interim accounts delivered by the solicitors detailed, in clear and unambiguous language, the nature of the services provided and the fees associated with those services. The assessment officer provided no meaningful explanation for his substitution of an entirely different set of hourly billing rates.
[10] Moreover, even when in effect, the costs grid on which the assessment officer relied in utilizing different, and significantly lower, hourly rates did not pertain to costs between a solicitor and his or her own client. Nor were the substantial indemnity billing rates contemplated by that grid the equivalent of the full indemnity rates on which the solicitors’ accounts were based.
[11] Third, we reach a similar conclusion regarding the assessment officer’s discounting of the time charged by the solicitors.
[12] In this case, the solicitors employed a team approach to the management of the appellant’s case. This approach was set out in the retainer agreement, which the appellant accepted, by the disclosure of the lawyers and support staff who were to be involved on the appellant’s file, together with their applicable hourly rates.
[13] As the assessment officer himself recognized, the use of a team approach, properly implemented and supervised, can minimize client costs by involving junior counsel, law clerks and paralegals for select tasks, rather than senior counsel. As he stated, “[w]hen implemented efficiently and effectively, [the use of] support staff can reduce legal fees.”
[14] Thus, there is nothing inherently objectionable to a solicitor’s use of a team approach for the conduct of litigation. That said, the use of this litigation management method must be properly supervised to yield a fair and efficient result for the client and to avoid unnecessary duplication of services and, hence, of legal fees.
[15] In this case, the assessment officer’s holding that counsel’s docketed time was excessive was conclusory only. His reasons reveal no cogent basis for his sweeping reductions of the hours billed by the senior solicitor, save for his own sense that the services at issue were duplicative. This is not a defensible basis for material reductions in the hours billed by the senior solicitor. It also ignores the nature of the team approach agreed upon by the appellant, an approach that she herself relied upon through her frequent communications with various members of the respondent law firm.
[16] Finally, the motion judge concluded that the assessment officer erred by characterizing this matrimonial case as simple and uncomplicated.
[17] Again, we agree. Although this was not the most complicated of contested matrimonial cases, it was not straightforward or ‘run-of-the-mill’.
III. Conclusion and Disposition
[18] These errors by the assessment officer permeated his evaluation of the solicitors’ bill of costs, causing him to undervalue the nature and extent of the solicitors’ work, the complexity of the case, and the benefits to the appellant of the settlement ultimately reached by the parties.
[19] In these circumstances, the motion judge was fully justified in declining to confirm the assessment officer’s report and certificate, and in undertaking his own evaluation of the reasonableness of the solicitors’ bill of costs based on the factors outlined by this court in Cohen v. Kealey & Blaney, [1985] O.J. No. 160. While we might have approached certain of those factors in a manner that differs from the approach employed by the motion judge, we see no reversible error in his analysis or in his award of fees and disbursements to the solicitors.
[20] We conclude with this observation. The appellant, through counsel, argued before this court that certain of the motion judge’s comments throughout the proceeding before him evidenced a reasonable apprehension of bias. The suggestion of judicial bias – actual or perceived – is a serious allegation. It is tantamount to the assertion that a miscarriage of justice occurred. As a result, it should not be advanced lightly and without evidentiary support.
[21] In this case, having reviewed the transcript of the proceeding before the motion judge, we are satisfied that the impugned conduct of the motion judge falls far short of the high threshold for establishing judicial bias. Indeed, certain of the motion judge’s impugned comments were arguably adverse to the solicitors, rather than to the appellant.
[22] The appeal is dismissed. The solicitors are entitled to their costs of the appeal, fixed in the amount of $8,500, inclusive of disbursements and all applicable taxes.
Released:
“APR 29 2013” “John Laskin J.A.”
“JL” “E.A. Cronk J.A.”
“Alexandra Hoy J.A.”