COURT OF APPEAL FOR ONTARIO

CITATION: Couper v. Adair Barristers LLP, 2020 ONCA 372

DATE: 20200611

DOCKET: C67453

Lauwers, Huscroft and Thorburn JJ.A.

BETWEEN

Mark Couper

Applicant (Appellant)

and

Adair Barristers LLP

Respondent (Respondent)

Mark Couper, acting in person

John J. Adair, for the respondent

Heard: In writing

On appeal from the order of Justice Markus Koehnen of the Superior Court of Justice, dated August 29, 2019, with reasons reported at 2019 ONSC 5016.

REASONS FOR DECISION

[1] This is an appeal from the order of the motion judge dismissing the appellant’s motion opposing confirmation of the Assessment Officer’s report.

[2] The appellant raises three issues on appeal. First, he says that the Assessment Officer did not have jurisdiction because the retainer was a contingency fee agreement; second, that the retainer did not comply with the requirements of the Solicitors Act, R.S.O. 1990, c. S.15; and third, that the motion judge misapprehended and ignored evidence and that the assessment should not have occurred until his solicitor’s negligence action against the respondent was determined.

[3] We dismiss the appeal for these reasons.

[4] First, although authority to conduct the assessment of the contingency fee agreement was not formally delegated to the Assessment Officer as required under s. 28.1(11) of the Solicitors Act, the motion judge conducted his own analysis as though the matter had first come before him. He found that the retainer agreement included a contingency fee and that the contingent nature of the retainer agreement was fair and reasonable and should be enforced. In light of this finding, the motion judge noted that he would have delegated the question of quantum, and the detailed assessments of the accounts that entailed, to an assessment officer, who could carry it out far more effectively. Given that this had already occurred, we agree that there was no reason that the exercise had to be repeated.

[5] As Brown J.A. noted in Evans Sweeny Bordin LLP v. Zawadzki, r. 54.09(5) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 permits the motion judge to “confirm the [assessor’s] report in whole or in part or make such other order as is just”: 2015 ONCA 756, at para. 24. In our view, the procedure adopted by the motion judge was fair and appropriate in all of the circumstances, and it was not necessary to remit assessment of the accounts for reconsideration by another assessment officer when assessment already occurred.

[6] We note that the respondent argued that the appellant was estopped from contesting the jurisdiction of the Assessment Officer, based on the appellant having clearly and unequivocally stated that he was not disputing the retainer and undertaking not to raise the issue of the Assessment Officer’s jurisdiction as a ground of appeal. Given our conclusion in para. 5 it is not necessary to address this argument, and we are not to be taken as endorsing the motion judge’s analysis in this regard.

[7] Second, it is too late in the day for the argument that the retainer did not comply with some of the requirements of s. 28.1 of the Solicitors Act. The appellant did not challenge the validity of the retainer when he could have done so and cannot now raise this argument on appeal.

[8] Third, we see no misapprehension of or failure to consider evidence. As for the appellant’s negligence action, the Assessment Officer considered and rejected the appellant’s submission concerning the competence of the representation provided by the respondent, finding that the appellant’s position “smack[ed] of recently invented objections”. The Assessment Officer found that the results achieved, and the degree of skill and competence demonstrated by the respondent justified the assessed legal costs. There is no basis to interfere with this finding on appeal. The assessment was not required to be delayed pending the outcome of the appellant’s negligence action.

[9] The appeal is dismissed. The respondent is entitled to costs, which we fix in the amount of $5,000, inclusive of taxes and disbursements.

“P. Lauwers J.A.”

“Grant Huscroft J.A.”

“J.A. Thorburn J.A.”