Court of Appeal for Ontario

Date: 2017-01-25 Docket: C62363

Judges: Doherty, Brown and Miller JJ.A.

Between

Jane Harper Client (Respondent)

and

John G. Cox Solicitor (Appellant)

Counsel

Gary S. Joseph and Kristy A. Maurina, for the appellant

Robert G. Schipper, for the respondent

Hearing

Heard and released orally: January 25, 2017

On appeal from: the order of Justice Jennifer Woollcombe of the Superior Court of Justice, dated June 2, 2016, with reasons reported at 2016 ONSC 3567.

Endorsement

[1] The appellant solicitor advances two grounds of appeal.

[2] First, the solicitor submits the motion judge erred in characterizing the first 37 of the 38 accounts as interim accounts that fell within the limitation period for their assessment. The solicitor contends each account was a final one. We do not accept this submission. We see no error with the motion judge's conclusion that the accounts were interim: there was nothing in the retainer agreement that made clear the accounts rendered during the retainer would each be final accounts; each account was marked as an "interim account"; and the transmittal letters to the client described them as interim. Based on her finding that the 37 accounts were interim, the motion judge's conclusion in para. 3 of her reasons is unassailable. The fact the client had paid the interim accounts is irrelevant.

[3] Second, the solicitor contends the motion judge erred in refusing the solicitor's request for production of (i) all the client's communications with another lawyer who worked on aspects of her matrimonial litigation and (ii) the client's tax returns and notices of assessment for the years in which the solicitor rendered his accounts. The motion judge held those documents were not relevant to the issues on the assessment. We see no basis upon which to interfere with that decision. The solicitor has not demonstrated the motion judge committed any error in principle or misapprehended the evidence in so exercising her discretion. If, during the assessment, an issue arises about the work performed by the other counsel, that is a matter for the assessment officer to deal with.

[4] The appeal is dismissed.

[5] The respondent is entitled to her partial indemnity costs fixed in the amount of $16,000, inclusive of HST and disbursements.

"Doherty J.A."

"David Brown J.A."

"B.W. Miller J.A."