NEWMARKET COURT FILE NO.: DC-05-098224-00

DATE: 2006/12/13

DIVISIONAL COURT

SUPERIOR COURT OF JUSTICE

B E T W E E N:

SAM COSENTINO

Sam Cosentino, self represented, Appellant

Plaintiff

(Appellant)

• and -

ALFREDO ROIATTI and ALFREDO ROIATTI, the Estate Trustee of the Estate of Cornelia Roiatti, Deceased

Michael A. Handler, for the Defendants

(Respondents)

Defendants

(Respondent)

HEARD: December 6, 2006

REASONS FOR DECISION

DiTOMASO J.

THE APPEAL

[1] This action arises from a dispute over the payment of a solicitor’s account issued on November 6, 1998. The defendant/respondent Alfredo Roiatti was appointed Estate Trustee of the Estate of Cornelia Roiatti.

[2] Alfredo Roiatti and his wife Joyce Roiatti retained appellant, Sam Cosentino (“Cosentino”) regarding estate matters involving Alfredo Roiatti’s mother and father as well as estate litigation involving Alfredo Roiatti’s brother, Pio Roiatti.

[3] Certain fees were charged by Cosentino which Alfredo Roiatti refused to pay. Cosentino commenced an action in the Richmond Hill Small Claims Court on October 29, 2004, seeking:

(a) payment of $6,879.35 or alternatively, $10,000 on account of an outstanding statement of account for legal fees issued on November 6, 1998;

(b) alternatively, payment of the said statement of account on a quantum meruit basis; and

(c) interest in the sum of $2, 231.83 plus costs.

[4] Cosentino appeals from the judgment of Deputy Judge J. Winer, delivered November 23, 2005, dismissing Cosentino’s action with costs to the respondents.

OVERVIEW

[5] Alfredo Roiatti and his wife Joyce Roiatti retained Consentino in respect of the estate of Alfredo Roiatti’s mother and father as well as litigation involving Alfredo Roiatti’s brother, Pio Roiatti. Three applications were launched – two applications by Alfredo Roiatti and one by Pio Roiatti.

[6] Alfredo Roiatti brought an application for probate in his mother’s estate. He also brought an application seeking the removal of his brother as Estate Trustee for their father’s estate. Pio Roiatti brought an application to pass accounts in which Alfredo Roiatti objected to his brother’s compensation.

[7] Eventually, an order was obtained for the sale of their parents’ house. Pio Roiatti ultimately agreed to buy Alfredo Roiatti’s share in said house known as the Westmount property. The sale closed in early April 1998.

[8] Out of the proceeds of the sale, Cosentino paid his disbursement account in the amount of $1,980.97 leaving a balance in trust in the amount of $12, 840.

[9] On April 6, 1998, Cosentino wrote to Alfredo Roiatti reporting upon the sale of the Westmount property to Pio Roiatti. In that letter, Cosentino enclosed a Trust cheque in the amount of $73,880.78 payable to Alfredo Roiatti for the balance of monies held in trust after payment of the following:

1. $943.95 for a previous account (not in issue)

2. $1,980.97 for interim account for disbursements only in the matter of the Estate Administration/Litigation file

3. $12,840.00 for the estimated account for legal fees and G.S.T. in the matter of the Estate Administration/Litigation file.

[10] After April 6, 1998, Cosentino continued to provide legal services culminating in his statement of account dated November 6, 1998, (see at page 25 of the Appeal Book). As evidenced by that account, Cosentino billed Alfredo Roiatti $18,300 together with further disbursements in the amount of $129.30 plus G.S.T. for a total of $19,719.35. From this amount, he deducted the sum of $12,840 which he had been holding in trust leaving a balance due and owing of $6,879.35.

[11] It is the sum of $6,879.35 that was claimed by Cosentino in the Small Claims Court action as Alfredo Roiatti refused to pay that amount.

[12] A central issue at trial was the nature of the retainer. There was no written retainer agreement but there is no issue that Cosentino was retained by Alfredo Roiatti.

[13] The position of Cosentino is that while there was no written retainer agreement, Alfredo Roiatti and his wife Joyce Roiatti understood the following when they retained Cosentino:

(a) They understood and agreed that they would pay Cosentino a fee of about $175 plus G.S.T. for each hour of work performed by him,

(b) They understood and agreed that Cosentino’s total fees would be equal to the number of hours Cosentino would expend multiplied by $175 plus G.S.T. per hour expended, and

(c) Cosentino did not provide an estimate of what his total fees would or might be. There was no agreement that all of Cosentino’s fees would be paid from the sale proceeds of the Westmount property. Rather, all of the fees would be paid when the estate matter was finally wound up.

[14] To the contrary, the position of Alfredo Roiatti and his wife Joyce is that they understood the sum of $12,840 referred to as the balance in trust (referred to in the Statement of Trust) represented the amount taken from the sale proceeds of the Westmount property by Cosentino to pay his fees for the work he had done in accordance with an agreement made with the Roiattis at their initial meeting. The agreement was that Cosentino’s legal fees would be paid directly from the estate i.e. from the sale proceeds of the Westmount property. The Roiattis also understood that the estate matter had been completed, that no further work was to be undertaken and, therefore, Cosentino had been paid in full.

[15] Up to April 6, 1998, Cosentino had not issued any interim Statement of Accounts with respect to the estate litigation. They were unaware that any further work needed to be done and at no time had Cosentino explained that there was additional work to be performed. Cosentino had not sent any written reports to advise of any additional steps or work which had to be undertaken. The Roiattis were then confronted with an account on November 6, 1998, claiming another $6,879.35 owing.

THE TRIAL

[16] The trial of this matter was heard by Deputy Judge J. Winer on November 23, 2005. Deputy Judge Winer accepted the evidence of both Alfredo Roiatti and Joyce Roiatti over that of Cosentino and found:

(a) That Alfredo has comprehension problems and that he relied upon Joyce for the business affairs of the family;

(b) Alfredo and Joyce are unsophisticated people;

(c) Cosentino told Alfredo and Joyce that his hourly rate was $215 per hour but that he would charge a reduced rate of approximately $170 an hour;

(d) Cosentino told Alfredo and Joyce that his fees would be paid from the proceeds of sale of the Westmount property;

(e) There was no written retainer agreement;

(f) Apparently Cosentino continued to do some work after the distribution of the sale proceeds in April 1998 and before he issued his account on November 6, 1998. However, Alfredo and Joyce did not know anything about this work;

(g) Cosentino waited until just before the expiration of the six year limitation period to sue;

(h) There was insufficient communication between Cosentino and Alfredo, especially following the distribution of the sale proceeds, and

(i) There was no warning given to Alfredo that there would be serious future costs to be paid following payment of the net proceeds of sale from the sale of the Westmount property.

[17] Deputy Judge Winer concluded that:

(a) There was an agreement that all of Cosentino’s legal fees would be paid from the proceeds of the sale of the Westmount property;

(b) Cosentino was estopped from claiming further fees, and

(c) There was unreasonable delay in bringing this action. Accordingly, the action was dismissed. After considering Alfredo’s offer to settle, Deputy Judge Winer ordered Cosentino to pay Alfredo’s costs plus a counsel fee of $600.

STANDARD OF APPELLATE REVIEW

[18] The standard of appellate review is not in issue. The standard of review on a question of law is that of correctness. The standard of review for findings of fact and inferences of fact is that such findings are not to be reversed unless it can be established that the trial judge made a palpable and overriding error, See Housen v. Nikolaisen, 2002 SCC 33, [2002] 211 D.L.R. (4th) 577 (S.C.C.) paras. 8, 10, 19-36.

[19] A trial judge does not err merely because he or she does not give reasons for deciding one way or the other on problematic points. The judge is not required to demonstrate that he or she knows the law and that he or she has considered all aspects of the evidence. Failure to do any of these things does not, in itself, permit a court to set aside a judgment. If the judge states his or her conclusions and the conclusions are supported by the evidence, the judgment should not be overturned. See R v. Sheppard, 2002 SCC 26, [2002] 162 C.C.C. (3rd) 298 (S.C.C.) para 32.

THE ISSUES

[20] There are three issues as follows:

(a) Did the trial judge make a palpable and overriding error in concluding there was an agreement between the parties that Cosentino’s legal fees would be paid from the proceeds of the sale of the Westmount property?

(b) Did the trial judge make a palpable and overriding error in concluding that Cosentino was estopped from claiming further fees?

(c) Did the trial judge make a palpable and overriding error in concluding that there was an unreasonable delay in bringing the action?

Did the trial judge make a palpable and overriding error in concluding that there was an agreement between the parties that Cosentino’s legal fees would be paid from the proceeds of the sale of the Westmount property?

[21] I find the trial judge properly considered the relevant evidence and made no reviewable error in his assessment of the evidence or in his assessment of the credibility of the witnesses. It is clear from the Reasons for Decision that the trial judge found the evidence of Alfredo and Joyce Roiatti more credible than the evidence of Cosentino.

[22] Further, the trial judge made no palpable or overriding error. His findings of fact were that Cosentino told Alfredo and Joyce Roiatti his legal fees would be paid from the sale proceeds of the Westmount property, having regard to the following evidence:

(a) The evidence of Alfredo and Joyce Roiatti was consistent about what was discussed at the initial meeting with Cosentino regarding the payment of legal fees;

(b) Cosentino did not write any letter to Alfredo Roiatti following the initial meeting to confirm the scope in terms of his retainer, including how he was to be paid for his services;

(c) There were no interim Statements of Account issued by Cosentino before the April 6, 1998 account was rendered;

(d) The reporting of April 6, 1998, did not alert Alfredo Roiatti to the possibility of further legal work and additional legal fees;

(e) Neither Cosentino, nor anyone from his office, discussed either the Statement of Trust or Statement of Adjustments with Alfredo or Joyce Roiatti;

(f) Cosentino made no attempt to communicate with Alfredo or Joyce Roiatti following his April 6, 1998, account to advise there was a need to perform further work for which legal fees would be charged;

(g) Alfredo and Joyce Roiatti’s reaction to the receipt of the November 1998 Statement of Account is consistent with their testimony. They understood from Cosentino that:

(i) Cosentino had been paid for his legal services from the sale proceeds as agreed at the initial meeting, and

(ii) There was no further work to be performed and the matter was at an end because the Westmount property had been sold and Alfredo Roiatti had received his share of the estate.

(h) Cosentino failed to return Joyce Roiatti’s calls following the receipt of the November 1998 account;

(i) When Cosentino failed to respond, Alfredo and Joyce Roiatti sought advice from the Law Society of Upper Canada and initiated an application for the assessment of Cosentino’s Statement of Account; and

(j) Cosentino waited until the six year limitation period was about to expire before initiating a lawsuit.

[23] I find this ground of appeal fails as the trial judge did not commit a reviewable error when he concluded that there was an agreement between the parties that Cosentino’s legal fees would be paid from the proceeds of sale of the Westmount property.

Did the trial judge make a palpable and overriding error in concluding that Cosentino was estopped from claiming further fees?

[24] It is submitted by Cosentino that there is no such estoppel. There was no detrimental reliance by the Roiattis as there was no promise that the fees would come out of the sale of proceeds.

[25] It is the position the Roiattis that the doctrine of promissory estoppel was indeed applicable in this case. The doctrine of promissory estoppel applies whenever one party has, by his words or conduct, made a promise or assurance which was intended to affect their legal relationship which is acted upon by the other party to his or her detriment. See Tudale Explorations Ltd. and Bruce, 1978 1471 (ON SC), [1978] 20 O.R. (2nd) 593 (Ont. Div.Ct.); Maracle v. Travellers Indemnity Company of Canada, 1991 58 (SCC), [1991] S.C.J. 43.

[26] The evidence at trial was that Cosentino did make oral assurances to Alfredo and Joyce Roiatti at the initial meeting about his hourly rate and how his legal fees would be paid. Cosentino’s conduct thereafter, and in particular following the issuance of the April 6, 1998 Report and Trust Statement is consistent with his oral assurances as well as Alfredo’s and Joyce’s understanding of the terms of the retainer.

[27] The Roiattis relied to their detriment upon Cosentino’s earliest assurances as well as his subsequent conduct including his silence and inaction for almost six years. Relying on those assurances and conduct, the Roiattis did not follow-up and proceed with the application to have Cosentino’s November 1998 account assessed. They believed that the matter had resolved itself in accordance with their understanding of the terms of Cosentino’s retainer.

[28] I find that the evidence at trial supports the trial judge’s conclusions and supports the application of the doctrine of equitable estoppel. I find that the trial judge did not make a palpable and overriding error when he concluded that Cosentino was estopped from claiming further fees.

Did the trial judge make a palpable and overriding error in concluding that there was an unreasonable delay in bringing the action?

[29] The Supreme Court of Canada in M.(K.) v. M. (H.) reviewed the equitable doctrine of laches. The court adopted the formulation of the doctrine which provides that a defendant can successfully resist an equitable claim made against him if he can demonstrate that the plaintiff, by delaying the institution or prosecution of his case, has either:

(a) acquiesced in the defendant’s conduct,

(b) caused the defendant to alter his position in reasonable reliance of the plaintiff’s acceptance of the status quo, or

(c) otherwise permitted a situation to arise which would be unjust to disturb. See M. (K.) v. M. (H.,) 1992 31 (SCC), [1992] 3 S.C.R. 6 para. 98.

[30] Ultimately, laches must be resolved as a matter of justice between the parties, as is the case with any equitable doctrine M. (K.) v. M. (H.), supra, para. 98.

[31] Cosentino submits that his claim was only a legal one – a contractual claim for legal services. He asserts that this is not an equitable claim, that the doctrine of laches does not apply to prevent his claim. Nevertheless, Cosentino sought payment from the Roiattis based upon the equitable doctrine of quantum meruit. Cosentino’s legal claim depended upon the determination of the retainer. There was no written retainer agreement and no attempt by Cosentino to confirm his understanding of the terms of his retainer with Alfredo Roiatti in writing. The trial judge correctly assessed the credibility of the witnesses on this issue and accepted the evidence of both Alfredo and Joyce Roiatti over that of Cosentino. Consistent with the agreement, Cosentino unilaterally held back an amount that he determined was sufficient to pay his fees. The trial judge made no palpable or overriding error in his conclusion. This finding left only Cosentino’s equitable claim to be determined by the court.

[32] The trial judge properly assessed the evidence in concluding that Cosentino’s equitable claim failed and that there was an unreasonable delay in commencing the action. The evidence at trial supported the conclusion that Cosentino’s delay in initiating the lawsuit for almost six years:

(a) caused Alfredo Roiatti not to proceed with the application for assessment of the November 1998 account; and

(b) permitted a situation to arise which would be unjust to disturb in the circumstances.

[33] Accordingly, I find that the trial judge did not commit a reviewable error when he concluded there was an unreasonable delay in bringing the action. All the issues must be answered in the negative. The trial judge did not misapprehend the evidence. However, there was evidence at trial which supported his findings. In respect of the three issues on appeal, he did not commit palpable and overriding error in respect of his findings.

DISPOSITION

[34] For the reasons given, the appeal is hereby dismissed. The parties have agreed that costs are to be determined by way of written submissions. Said submissions are to consist of a bill of costs, see Form 57A and a concise outline of costs, see Form 57B. Those submissions are to be exchanged and filed with the trial co-ordinator at Newmarket within 14 days of this decision.

Justice G. DiTomaso

Released: December 13, 2006