Court of Appeal for Ontario

Date: 2019-04-01 Docket: C65793

Judges: van Rensburg, Hourigan and Huscroft JJ.A.

Between

Philip Herman and Sandra Druck Appellants

and

Goldman Sloan Nash & Haber LLP Respondent

Counsel

James McReynolds, for the appellants

Christine Kellowan, for the respondent

Heard: March 25, 2019

On appeal from: the order of Justice Favreau of the Superior Court of Justice, dated July 19, 2018.

Reasons for Decision

[1] The appellants were clients of the respondent law firm for a number of years. They appeal an order dismissing their application to assess 33 of the respondent law firm's legal accounts, which were dated November 2, 2010 to July 29, 2013.

[2] There is no dispute that the respondent provided legal services to the appellants; indeed they had previously paid in full at least $169,000 of the firm's accounts. In early 2017 the appellants sought to assess the 33 accounts on the basis that they were dissatisfied with the services provided and that they were overcharged.

[3] The appellants asserted that, notwithstanding that their application for assessment was commenced more than 12 months after the accounts were issued, there were special circumstances warranting the assessment because they had only received the accounts in 2016, as a package, together with a letter of demand. They also argued, as additional special circumstances, that they were unsophisticated, that the amount at issue was high, and that they had grown increasingly dissatisfied with the services provided by the respondent.

[4] The application judge rejected the appellants' arguments and concluded that there were no special circumstances that would justify an assessment of the subject accounts. In particular, she did not accept their contention that they had not received any of the accounts until 2016. She also noted that there was no evidence of the appellants having expressed dissatisfaction with the services when they were provided, and that the appellants, who were both lawyers and business people, were sophisticated and would have known to raise issues with the accounts at the time they were rendered. Accordingly, she dismissed the application for assessment of the respondent's accounts.

[5] The appellants make two arguments on appeal.

[6] First, the appellants say that the application judge erred in rejecting their claim that they had not received the solicitors' accounts at the time they were sent. Although the appellants argue the contrary, this is a finding of fact and subject to reversal only if they establish that the finding reflects a palpable and overriding error.

[7] We see no such error. The application judge, at paras. 6 to 8 of her reasons, explained why she had reached this conclusion. This was a question of credibility she resolved against the appellants, who asserted that they had received no accounts at all until the package of accounts was sent with a demand in 2016. The application judge rejected the appellants' assertion that because the accounts in the package contained an incomplete New York address, rather than the appellants' home address, they must not have received them. She accepted that the bills sent in 2016 were computer-generated, but that the original bills, which were produced in evidence, were primarily addressed to the appellants' home address, in some cases to a Toronto business address, and more recently to an email address the appellants did not dispute was their own. The application judge concluded that the appellants' blanket assertion they did not receive any of the bills sent to their home and email addresses did not have an air of reality. The application judge also considered evidence that at least one bill had been partially paid by the appellants in 2012, as well as a loan agreement and mortgage agreement in 2010 in which they acknowledged their indebtedness for outstanding fees and their desire that the firm continue working for them.

[8] Nor do we agree with the appellants that the application judge based her decision on the sheer volume of accounts issued by the respondent. What was relevant was that the appellants denied having received any of the accounts, a position that the application judge found not to be credible in view of the fact that a large number of the original bills were addressed to their home and email addresses. She stated, at para. 7:

If [the appellants'] contention was that they had not received one or two bills, their evidence may be more credible. But their blanket assertion that they did not receive any of the over thirty bills sent to addresses they acknowledge as their home and email addresses simply does not have an air of reality.

[9] We see no error in the application judge's rejection of the appellants' contention that they had never received the accounts at issue, and accordingly that they failed to make out the primary special circumstance they relied on in seeking to assess the respondent's accounts.

[10] The appellants' second argument is that the application judge did not properly consider all of the special circumstances, and in particular the amount of money that was in dispute. We disagree. The focus of the application was on the appellants' contention that none of the subject accounts had been received. This was decided against the appellants. We are satisfied that the application judge considered all of the possible special circumstances that were put to her, and that her reasons were responsive to the appellants' arguments in the application.

[11] The appeal is therefore dismissed. Costs to the respondent in the sum of $5,500, inclusive of applicable taxes and disbursements.

K. van Rensburg J.A.

C.W. Hourigan J.A.

Grant Huscroft J.A.