COURT OF APPEAL FOR ONTARIO

CITATION: Bui v. Alpert, 2014 ONCA 495

DATE: 20140626

DOCKET: C58131

Hoy A.C.J.O., Cronk and Pepall JJ.A.

BETWEEN

Tich Quang Bui

Applicant (Appellant)

and

Howard J. Alpert

Respondent (Respondent)

Nicholas Cartel and Singa Bui, for the appellant

Michael A. Katzman, for the respondent

Heard: June 13, 2014

On appeal from the judgment of Justice Victoria R. Chiappetta of the Superior Court of Justice, dated December 5, 2013.

ENDORSEMENT

[1] The appellant, Tich Quang Bui, appeals the December 5, 2013 judgment of the application judge, dismissing the appellant’s application for an assessment of the respondent solicitor’s bills pursuant to ss. 4(1) and 11 of the Solicitors Act, R.S.O. 1990, c. S. 15. Before the application judge, the parties agreed that the issue before the court was whether special circumstances existed within the meaning of those two statutory provisions.

[2] Briefly, the respondent rendered 12 bills to the appellant over the four-year period that he provided legal services to the appellant in relation to a tax matter. The appellant paid all 12 bills. The last bill was rendered on April 19, 2012. On May 8, 2012, the respondent gave notice of his intention to remove himself as the appellant’s counsel of record, citing the appellant’s failure to pay the April 19, 2012 account and to provide documents to the respondent. On May 11, 2012, the appellant appointed new counsel, who negotiated a 50% reduction to the April 19 account. On May 24, 2012, the appellant paid the April 19 account, as reduced, and the respondent subsequently transferred the file to the appellant’s new counsel. On December 12, 2012, the appellant brought his application to assess all 12 of the respondent’s bills.

[3] Section 4(1) of the Solicitors Act provides that no bill shall be referred for assessment, “after twelve months from the time such bill was delivered, sent or left as aforesaid, except under special circumstances to be proved to the satisfaction of the court or judge to whom the application … is made.”

[4] And, as the application judge noted, there is a presumption that payment of an account indicates that the client accepted the account as reasonable and proper.

[5] However, that presumption may be rebutted by the client. Section 11 of the Solicitors Act provides as follows:

The payment of a bill does not preclude the court from referring it for assessment if the special circumstances of the case, in the opinion of the court, appear to require the assessment.

[6] The appellant argues that the application judge erred in concluding that the “special circumstances” of the case did not rebut the presumption that the appellant had accepted the bills as reasonable and proper. Alternatively, the appellant argues that, even if there were no special circumstances, the application judge erred in declining to exercise his inherent jurisdiction to order the assessment of the respondent’s bills.

[7] Determining whether “special circumstances” exist is a fact-specific inquiry. Sections 4(1) and 11 give an application judge a broad discretion to be exercised on a case-by-case basis. This court will defer to the decision of the application judge regarding the existence of special circumstances, absent an error in principle or a clearly unreasonable result: Echo Energy Canada Inc. v. Lenczner Slaght Royce Smith Griffin LLP, 2010 ONCA 709, 104 O.R. (3d) 93, at paras. 29 and 32, leave to appeal to S.C.C. refused, [2010] S.C.C.A. No. 484.

[8] We are not persuaded that the application judge erred in principle or that her conclusion that special circumstances were not made out is clearly unreasonable.

[9] The application judge concluded that the evidence did not support the appellant’s allegation that he was billed for duplicative work. Nor was she persuaded on the evidence that the appellant was dissatisfied with the quality of the respondent’s work. The application judge concluded that the two communications from the respondent – on November 18, 2011 and February 17, 2012 – advising that if outstanding accounts were not paid the respondent would have to cease working on the matter, were insufficient to constitute special circumstances warranting the assessment of all 12 accounts. Finally, she concluded that the explanation for the delay that she accepted (that the appellant was too busy working on his tax matter to focus earlier on seeking an assessment) did not amount to “special circumstances”.

[10] We see no merit to the appellant’s complaints that the application judge failed to consider whether special circumstances were made out from the client’s perspective and that she concluded that the appellant’s complaints regarding the respondent’s accounts had to be raised during the course of the respondent’s retainer.

[11] Her reasons, properly read, do not support either of these claims. The application judge recognized her obligation to consider whether there were special circumstances from the perspective of the client. We see no basis to conclude that she did not, in fact, do so. Further, the application judge did not hold that a client’s complaints about his/her solicitor’s accounts must be raised during the course of the solicitor’s retainer. She simply observed – after finding that there was no evidence of duplication of work – that the client’s concerns were never expressed until after the solicitor/client relationship had been terminated. While not controlling, this was a relevant consideration.

[12] The application judge’s factual findings were supported by the evidence, and her conclusion, based on those findings, that special circumstances were not made out, was reasonable. Respectfully, on this appeal the appellant seeks to re-argue his application.

[13] The application judge also considered whether the court should in any event exercise its inherent jurisdiction to order an assessment of the accounts, separate and apart from the provisions of the Solicitors Act. She concluded that, in the circumstances of this case, the failure of the respondent to advise the appellant of his right to request an assessment was not in and of itself sufficient to entitle the appellant to an assessment: there was no evidence that he was unaware of his right to request an assessment, and no basis to infer this. Indeed, given that the appellant’s new lawyer immediately challenged and sought a reduction in the respondent’s last account, the reasonable inference is that the appellant became aware of his right to an assessment, at latest, shortly after he retained new counsel. We see no basis for appellate intervention with the application judge’s exercise of her discretion.

[14] This appeal is accordingly dismissed. The respondent shall be entitled to costs in the amount of $5,000, inclusive of HST and disbursements.

“Alexandra Hoy A.C.J.O.”

“E.A. Cronk J.A.”

“Sarah Pepall J.A.”