Court of Appeal for Ontario

Date: 20220301 Docket: C69386

Before: Feldman, MacPherson and Lauwers JJ.A.

Parties and Counsel

BETWEEN Victor Ages Vallance LLP Applicant (Respondent)

and OZ Optics Ltd. Respondent (Appellant)

AND BETWEEN Victor Ages Vallance LLP Applicant (Respondent)

and OZ Merchandising Inc., Ottawa Wizards, OZ Dome Soccer Club and Omur Sezerman Respondents (Appellants)

AND BETWEEN Victor Ages Vallance LLP Applicant (Respondent)

and OZ Merchandising Inc. Respondent (Appellant)

AND BETWEEN Victor Ages Vallance LLP Applicant (Respondent)

and OZ Merchandising Inc. Respondent (Appellant)

Counsel: Nicholas Karnis, for the appellants OZ Optics Ltd., OZ Merchandising Inc., Ottawa Wizards, and OZ Dome Soccer Club Omur Sezerman, acting in person David Cutler, for the respondent

Heard

Heard: February 22, 2022 by video conference

On appeal from the orders of Justice Kevin B. Phillips of the Superior Court of Justice, dated April 1, 2021.

Reasons for Decision

[1] The appellants, the four OZ entities and its principal Omur Sezerman, appeal from the decision of the Superior Court confirming the assessment by an assessment officer of four accounts of their former solicitors.

[2] The assessment hearing spanned seven days. The assessment officer assessed each of the accounts by applying the test from Cohen v. Kealey & Blaney (1985), 26 C.P.C. (2d) 211 (Ont. C.A.) that includes the following nine factors:

a. the time expended by the solicitor; b. the legal complexity of the matters to be dealt with; c. the degree of responsibility assumed by the solicitor; d. the monetary value of the matters in issue; e. the importance of the matters to the client; f. the degree of skill and competence demonstrated by the solicitor; g. the results achieved; h. the ability of the client to pay; and i. the expectation of the client as to the amount of the fee.

[3] She also added as a tenth factor, credibility, but determined in the end that it was not necessary to make any specific findings regarding the credibility of either the solicitor or the appellant, Mr. Sezerman.

[4] The assessment officer confirmed the four accounts submitted by the solicitors for the requested total of $148,120.95.

[5] Phillips J. of the Superior Court dismissed the appellants’ motion to review the decision of the assessment officer. This is an appeal from that decision. The issues raised before the reviewing judge were: 1) whether the assessment officer exceeded her jurisdiction by embarking on the assessment when the nature of the retainer was in dispute; 2) whether the assessment officer erred in accepting one version of events over another; and 3) whether the assessment officer’s decision was tainted by a reasonable apprehension of bias.

[6] The reviewing judge rejected each of these submissions. He applied the deferential standard of review that applies to a review of an assessment officer’s decision, absent errors, misapprehension of the evidence or unreasonableness: Rabbani v. Niagara (Regional Municipality), 2012 ONCA 280, 106 L.C.R. 235, at para. 6.

[7] On the first issue, the reviewing judge noted that the assessment officer’s jurisdiction had previously been challenged in front of Beaudoin J. who found there was no special circumstance requiring a transfer to a judge. Another judge of the Superior Court had denied leave to appeal Beaudoin J.’s decision. The reviewing judge concluded that the first argument was a collateral attack on those decisions.

[8] On the second issue, the reviewing judge found that the assessment officer made findings based on the evidence and that her final assessment was not grossly unfair or inappropriate so as to constitute an error in principle. Her decision was comprehensive and detailed and clearly explained how she reached her conclusions.

[9] On the third issue, the reviewing judge reviewed the record and concluded that the impugned comments by the assessment officer “do not, either on their own or in aggregate, come anywhere close to a basis for a finding of reasonable apprehension of bias.”

[10] We see no error in any of the findings of the reviewing judge, and no basis to interfere with his decision.

[11] One of the main issues that was pursued on the appeal was whether the evidence before the assessment officer disclosed an overpayment of the solicitor’s accounts over the 11-year relationship between the parties of approximately $210,000. The issue arose because Mr. Victor, one of the appellants’ solicitors, had stated that he had charged $1,282,058.99 in legal fees over time, and the appellants had paid bills totalling $1,492,000. However, the evidence also disclosed that the total payment of $1,492,000 included disbursements and H.S.T. As a result, there was no discrepancy and no issue of an overpayment.

[12] The appeal is dismissed with costs payable to the respondent in the agreed amount of $6,800, inclusive of disbursements and H.S.T.

“K. Feldman J.A.”

“J.C. MacPherson J.A.”

“P. Lauwers J.A.”