COURT OF APPEAL FOR ONTARIO

CITATION: Steen v. Gibson, 2016 ONCA 285

DATE: 20160420

DOCKET: C60947

BEFORE: Sharpe, LaForme and van Rensburg JJ.A.

BETWEEN

Robert Steen and Robert Steen as Executor of the Estate of Gwendolin Cuttance Steen Applicant/Client (Respondent)

and

D. Kenneth Gibson and Gibson & MacLaren LLP Respondents/Solicitors (Appellants)

COUNSEL: John Parr Telfer, for the appellants Miriam Vale Peters, for the respondent

Heard and released orally: April 18, 2016

On appeal from the order of Justice Charles T. Hackland of the Superior Court of Justice, dated August 18, 2015.

ENDORSEMENT

[1] The appellant solicitors raise three grounds of appeal from an assessment ordering them to repay $73,000 and costs to the respondent, their former client.

(1) Expert report

[2] The appellants submit that the trial judge erred by considering and relying on an expert report which he ruled to be inadmissible. We do not accept that submission. The central issue on this assessment of the solicitor’s accounts was whether the appellants had acted with skill and competence. As the judicial officer conducting the assessment, the trial judge was entitled to make his own independent evaluation of the skill and competence demonstrated by the solicitors. We do not agree that in making that evaluation, he made improper use of the expert report.

[3] In oral argument it became clear that the appellants’ real concern is the contention that the trial judge erred in law in concluding that a passing of accounts, and not an action was the appropriate procedure. As the trial judge only reduced the appellants’ account for the fees charged for the Rule 45 motion and did not reduce the fees for the action proper, this argument has no bearing on the outcome of this appeal.

(2) Delay

[4] The appellants submit that the trial judge erred by failing to dismiss the assessment on the grounds of delay pursuant to Rule 48.15(6)2. We see no merit in that submission. Rule 48.15(6)2, now repealed, applied to actions. We do not agree with the contention that this assessment was “in pith and substance” a negligence action. The matter was a reference pursuant to the Solicitors Act, not an action. Moreover, that issue was determined by Justice Beaudoin’s August 2012 endorsement from which no appeal had been taken.

(3) Reference to Mediation

[5] While the trial judge did refer to the mediation, he did not violate the confidentiality provisions of Rule 24.1.14. The mediation was one step in the overall conduct of the disputed proceedings and, as between the appellants and the respondent, their client, there was no violation of the confidentiality that protects settlement discussions between the parties. Moreover, we agree with the respondent that any reference to the mediation had no material effect on the substance of the trial judge’s decision.

[6] The respondent cross-appeals raising two grounds.

(1) Further reduction of the appellants’ accounts

[7] We see no basis to interfere with the trial judge’s decision to limit the reduction in the appellants’ accounts to the fees charged for the Rule 45 motion. In our view, it was open to the trial judge to conclude that there was a live issue, to be resolved in the action, as to whether the payments to the brothers were valid inter vivos gifts or a resulting trust with tax consequences. The trial judge found as a fact that there was value to the respondent in bringing the action and as a result he refused to reduce the account for services rendered for the action. Moreover, as the trial judge noted, the respondent was a challenging client, distrustful of his brothers and reluctant to give any ground.

(2) Interest

[8] Interest is a discretionary matter pursuant to s.33(4) of the Solicitors Act. We see no error of law or principle on the part of the trial judge in ordering interest at the rate prescribed by the Courts of Justice Act rather than the rate specified in the appellants’ invoices and from a date one year prior to the hearing. The assessment was commenced in 2009 and not heard until six years later. The trial judge was entitled to consider the fact that the respondent contributed to the delay in fixing the date for interest.

[9] Accordingly, both the appeal and the cross-appeal are dismissed. As there has been divided success, there will be no order as to costs.

“Robert J. Sharpe J.A.”

“H.S. LaForme J.A.”

“K. van Rensburg J.A.”