COURT OF APPEAL FOR ONTARIO
CITATION: 267 O'Connor Limited v. Perley-Robertson, Hill & McDougall LLP, 2016 ONCA 853
DATE: 20161115
DOCKET: C61522
Strathy C.J.O., Pardu and Brown JJ.A.
BETWEEN
267 O’Connor Limited
Applicant (Appellant)
and
Perley-Roberston, Hill & McDougall LLP
Respondent (Respondent)
Paul J. Pape and Andrea M. Bolieiro, for the appellant
Andrew J. F. Lenz, for the respondent
Heard: November 7, 2016
On appeal from the judgment of Justice Ronald M. Laliberté of the Superior Court of Justice, dated November 24, 2015.
ENDORSEMENT
[1] 267 O’Connor Limited (the “applicant” or “appellant”) brought an application pursuant to s. 11 of the Solicitors Act, R.S.O. 1990, c. S. 15 seeking an order directing an Assessment Officer to assess all the accounts rendered to it by the respondent solicitors between May 31, 2014 and October 31, 2014. The accounts had all been paid. Section 11 of the Solicitors Act provides that “[t]he 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.”
[2] The application judge dismissed the application. He held, after citing the appropriate authorities, that the applicant had not established, on a balance of probabilities, the existence of special circumstances justifying a referral for assessment on the following grounds:
The principal of the applicant is a lawyer and a sophisticated client who understood the Solicitors Act. He was also a businessman experienced in handling significant real property transactions.
The degree of communication between the applicant and the respondent solicitors was adequate and the accounts were detailed.
The applicant expressed satisfaction with the work done.
The respondent solicitors provided the applicant with the accounts on an ongoing basis. The applicant expressed no objection until a dispute arose in relation to an account for an unrelated matter.
The applicant indicated that it he had no difficulty in honouring the accounts, and paid them voluntarily, without pressure.
The work done by the respondent solicitors was complex, involving a valuable piece of commercial real property that sold for $11,400,000.
The application judge found that the cumulative effect of the foregoing supported the proposition that the payment of the accounts reflected the applicant’s acceptance of their reasonableness.
[3] The appellant submits that the application judge erred in failing to make an independent assessment of whether the fees charged by the respondent solicitors were excessive. The accounts covered work done to defeat a motion for a certificate of pending litigation, as well as other work. The respondent solicitors sought partial indemnity costs on that motion in the sum of $35,221.67 from the opposing party. The appellant argued that, assuming these party and party costs represented about 60% of the respondent solicitors’ actual fees, the fees charged by the respondent solicitors should have been around $60,000. Alternatively, the appellant said in an email to the respondent solicitors that unknown persons he had consulted suggested that the fees should have been between $60,000 and $80,000.
[4] The total of all accounts rendered by the respondent solicitors was $135,240.25. The accounts were detailed, and gave particulars of the time spent, hourly rate and disbursements. The time claimed on the bills to the client was over 220 hours. The time claimed for the motion indicated on the partial indemnity costs outline was about 110 hours.
[5] The appellant did not challenge the hourly rate, the time spent or the propriety of the disbursements. In the absence of any evidence reasonably leading to an inference that the accounts rendered to the appellant were excessive, the application judge did not err in declining to reason backwards from the amount of partial indemnity costs for part of the work done by the respondent solicitors to a conclusion that the accounts for all of the work done were excessive.
[6] In Bui v. Alpert, 2014 ONCA 495, [2014] O.J. No. 3127, at para. 7, this court concluded that it would “defer to the decision of the application judge regarding the existence of special circumstances, absent an error in principle or a clearly unreasonable result.”
[7] The appellant has not shown that the application judge made an error in principle or that the result was unreasonable. The argument on appeal is essentially that the application judge ought to have exercised his discretion differently.
[8] We see no basis to intervene. The appeal is dismissed with costs to the respondent solicitors in the agreed sum of $13,000, all inclusive.
“G.R. Strathy C.J.O.”
“G. Pardu J.A.”
“David Brown J.A.”