Court of Appeal for Ontario

Date: 2019-10-09 Docket: C66677

Judges: Sharpe, Hourigan and Jamal JJ.A.

Between

Kerry Adler Applicant (Appellant)

and

Thomson, Rogers Respondent (Respondent)

Counsel

Karen Zvylony, for the appellant

Robert Schipper, for the respondent

Heard: October 4, 2019

On appeal from: the judgment of Justice Peter Bawden of the Superior Court of Justice, dated February 6, 2019.

Reasons for Decision

[1] Mr. Adler brought an application for an assessment of 30 accounts he received from his counsel, Thomson, Rogers, over the course of their representation of him in a family law proceeding. The total amount billed was in excess of $600,000 during a period of approximately two and a half years.

[2] Of these accounts, 26 were paid in full by Mr. Adler. Pursuant to s.11 of the Solicitors Act, R.S.O. 1990, c.S.15, where accounts are paid an assessment may only be ordered if the client establishes the existence of special circumstances. The four latest accounts were unpaid and were found by the application judge to have been challenged within 12 months. An order for the assessment of these accounts falls under the court's inherent jurisdiction and does not require the establishment of special circumstances.

[3] The application judge held that Mr. Adler failed to establish that special circumstances existed warranting the assessment of the paid accounts. The application judge also declined to exercise his inherent jurisdiction to order an assessment of the unpaid accounts.

[4] On appeal, Mr. Adler submits that the application judge erred in his approach because he looked at the issue of special circumstances solely from the firm's perspective and found that the overriding factor was how Mr. Adler conducted himself during the litigation. In addition, he argues that the application judge ignored evidence that he had not accepted the bills as reasonable and submits that the application judge erred in finding that he deliberately orchestrated the breakdown of the solicitor-client relationship.

[5] We do not give effect to these submissions.

[6] We start by noting that a high degree of deference is owed to a judge's factual findings and exercise of discretion in determining whether an assessment should be ordered under s. 11: Echo Energy Canada Inc. v. Lenczner Slaght, 2010 ONCA 709, 104 O.R. (3d) 93, at para. 29, leave to appeal refused, [2010] S.C.C.A. No. 484.

[7] There is nothing in the application judge's reasons to suggest that his analysis was undertaken only from the firm's perspective. To the contrary, he conducted an exhaustive review of the record as it related to the parties' conduct in the family law proceedings and their private relationship. His factual findings were well rooted in the evidence, including his finding that Mr. Adler sabotaged his relationship with the firm in order to orchestrate an adjournment of the trial. Contrary to Mr. Adler's argument, the analysis of the breakdown in the solicitor-client relationship was essential because it informed whether the breakdown was motivated by genuine concern about the firm's service or Mr. Adler's desire to adjourn the trial.

[8] The application judge also properly articulated and applied the test for special circumstances. In particular, he considered Mr. Adler's sophistication as a litigant who had already assessed the account of an earlier solicitor and his willingness to pay the fees provided for in the written retainer agreement. In addition, he considered the fact that there was no evidence that Mr. Adler was dissatisfied with the accounts until near the end of the retainer, when Mr. Adler began to act uncooperatively. The application judge concluded that the only factor favouring an assessment was the fact that the payments were involuntary. We see no basis for appellate interference with the application judge's analysis or his conclusion.

[9] As for the four unpaid accounts falling under the court's inherent jurisdiction, the application judge noted that there were no circumstances, special or otherwise, warranting an assessment. Again, with respect to these accounts, we are not satisfied that the application judge made any factual or legal error, or that he improperly exercised his inherent discretion.

[10] The appeal is dismissed. Mr. Adler shall pay the costs of the appeal to Thomson, Rogers in the agreed upon, all-inclusive amount of $15,000.

"Robert J. Sharpe J.A."

"C. W. Hourigan J.A."

"M. Jamal J.A."