COURT OF APPEAL FOR ONTARIO

CITATION: Roy Wise Professional Corporation v. Colaco, 2016 ONCA 889

DATE: 20161123

DOCKET: C61081

Simmons, Pepall and Huscroft JJ.A.

BETWEEN

Roy Wise Professional Corporation and Roy Wise

Plaintiffs (Respondents)

and

Noel Mark Colaco

Defendant (Appellant)

Noel Mark Colaco, in person

Timothy M. Gleason, Benjamin Salsberg and Jonathan R. S. Schachter, for the respondents

Heard: November 17, 2016

On appeal from the judgment of Justice Stephen E. Firestone of the Superior Court of Justice, dated August 27, 2015, with reasons reported at 2015 ONSC 3801.

ENDORSEMENT

[1] Following the hearing of this appeal, we dismissed the appeal for reasons to follow. These are our reasons.

[2] The appellant appeals from a judgment granting the respondent lawyer and the respondent law firm (collectively "the lawyers") judgment on a claim for unpaid legal fees and dismissing the appellant's counterclaim for solicitor's negligence.

[3] The lawyers claimed $101,183.82 ($107,729.01 less a credit of $6,545), being the balance owing for legal fees for services rendered between 2002 and 2007.

[4] The appellant's counterclaim for negligence related primarily to two matters. First, an action against John Baranyai in relation to which the appellant claimed that the lawyers failed to properly account for the proceeds of a settlement. Second, an action against Maroun and Cobra Hanna (“Hanna”) in relation to which the appellant claimed that the lawyers failed to take proper steps to enforce a payment agreement relating to a prior judgment against Hanna and failed to advise the appellant of the requirement to make full and frank disclosure when applying for a Mareva injunction – leading to the appellant having to accept an improvident settlement.

[5] At trial, the appellant acknowledged that the lawyers spent the time and performed the services for which they had rendered accounts. However, he disputed whether all the services performed were necessary to fulfill the terms of the retainer or of benefit to him and maintained his position that the lawyers had been negligent.

[6] Concerning the main action, the trial judge reduced the lawyers' claim for legal fees by $10,000, holding that some of the time spent was excessive. As mentioned above, a credit of $6,545.19 was also applied on account of fees charged at a higher hourly rate without the appellant's knowledge. However, the trial judge made numerous findings of fact and credibility against the appellant and in favour of the lawyers, which led him to conclude that the services provided by the lawyers were both necessary and of benefit to the appellant.

[7] For example, in relation to the main action, the trial judge found that:

• the lawyers had at all times acted in accordance with the appellant's instructions and kept him informed of the work being done and the fees being incurred;

• the lawyers had specific instructions to take no steps in a proceeding against the appellant's former partner Malik;

• the lawyers took steps in the Baranyai matter, including conducting discoveries, that enabled the appellant to settle the matter; and

• the steps taken in the Hanna matter, including initiating appropriate proceedings to enforce the payment agreement based on the information the appellant provided, obtaining the Mareva injunction and taking appropriate steps to ascertain the amount outstanding on the payment agreement were of benefit to the appellant.

[8] The trial judge therefore allowed the balance of the lawyers' claim in the amount of $90,454.81 plus interest.

[9] Concerning the appellant's counterclaim for solicitors’ negligence, the trial judge found that the lawyers had properly accounted for the disputed proceeds of the Baranyai settlement. He rejected aspects of the appellant's evidence, including the appellant’s claim that he advised the personal respondent of an oral amendment to the payment agreement and concluded that the lawyers had exercised appropriate judgment with respect to the payment agreement based on the information the appellant had provided.

[10] In addition, the trial judge found that the appellant settled the action underlying the Mareva injunction application – the Hanna action – for reasons unrelated to the lawyers. In particular, the evidence of the appellant’s former partner, Malik, had undermined his claim. Furthermore, the trial judge made a specific finding that the personal respondent had advised the appellant that "he must be truthful and complete" in his evidence on an ex parte motion. Although the trial judge acknowledged the expertise of the appellant's expert on the issue of solicitor’s negligence, he concluded that the expert's report was based on incorrect assumptions. In his factum filed on the appeal, the appellant submitted that the trial judge committed several errors. In essence, however, his submissions amounted to reiterating his arguments made at trial and asserting that the trial judge erred in failing to accept them. In oral argument on appeal, the appellant elaborated on those arguments, primarily in relation to the Hanna matter, and also attempted to raise new arguments.

[11] Based on our review of the record, the trial judge's findings of fact support his conclusions and are fully supported by the evidence led at trial. Further, we see no error in principle. For these reasons, we dismissed the appeal.

[12] The trial judge awarded costs to the lawyers in the main action of $86,000 and $80,000 in the counterclaim. The appellant sought leave to appeal costs but made no submissions concerning that issue. Leave to appeal costs is denied.

[13] Costs of the appeal are to the respondents on a partial indemnity scale fixed in the amount of $5,000 in relation to the appeal of the main action and $10,000 in relation to the dismissal of the counterclaim, both sums inclusive of applicable taxes and disbursements.

“Janet Simmons J.A.”

“S.E. Pepall J.A.”

“Grant Huscroft J.A.”