CITATION: Cao v. Monkhouse Law Professional Corporation, 2021 ONSC 7894
DIVISIONAL COURT FILE NO.: 414/20
DATE: 20211202
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Lococo, Emery and Kristjanson JJ.
BETWEEN:
SUYI CAO
Appellant
– and –
MONKHOUSE LAW PROFESSIONAL CORPORATION
Respondent
M. Olanyi Parsons, for the Appellant
Stephen LeMesurier and Andrew Monkhouse, for the Respondent
HEARD: July 2, 2021, at Oshawa by videoconference
Kristjanson, J.
[1] The appellant client, Suyi Cao, retained the respondent solicitor, Monkhouse Law, to represent her in a wrongful dismissal and human rights claim against her former employer. Following the breakdown of the solicitor-client relationship, Monkhouse Law rendered an account to Ms. Cao pursuant to the retainer agreement she had signed. The appellant then took steps to have the solicitor’s fees assessed by an assessment officer pursuant to s. 3(b) of the Solicitors Act, R.S.O. 1990, c. S.15.
[2] The assessment hearing took place January 8, January 23, and May 1, 2018. In April 2018 the appellant brought a motion for directions from a judge of the Superior Court of Justice. Justice Edwards dismissed the motion on April 30, 2018. The assessment officer continued the hearing and completed the assessment report.
[3] The appellant moved pursuant to subrules 54.09(2) and (3) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, to oppose confirmation of the assessment report. By order dated February 20, 2020, Justice Dawe declined to confirm the assessment report. He found the assessment officer had no jurisdiction to conduct an assessment because the retainer agreement fell within the definition of a “contingency fee agreement”, and only a judge may assess an account rendered pursuant to a contingency fee agreement.
[4] The motion judge conducted his own assessment of the account and exercised his power to “make such other order as is just” under subrule 54.09(5) of the Rules. The account was originally submitted in the amount of $93,108.30. The assessment officer had reduced the account to $60,191.97. The motion judge further reduced the solicitor’s account, fixing it $45,000 inclusive of disbursements and HST.
Court’s Jurisdiction and Standard of Review
[5] The Divisional Court has jurisdiction to hear this appeal pursuant to s. 19(1.2) of the Courts of Justice Act, since the order is a final order in a civil proceeding where the monetary award is less than $50,000.
[6] The appellate standards of review which apply are set out in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235. On questions of law, the standard is correctness. On questions of fact, and on questions of mixed fact and law where there is no extricable legal issue, the standard is palpable and overriding error.
Preliminary Issue: No Sealing Order
[7] An order sealing the motion record was issued by Master Wiebe in October 2017. This may be why the motion judge did not publicly release his reasons for decision, although he did assign a publisher number of 2020 ONSC 1088. The appellant, as conveyed by and with the consent of the solicitor, requested that this court extend the sealing order and either anonymize or refrain from releasing the decision. The reason given was the appellant’s concern that making the decision public might prejudice her ongoing wrongful dismissal matter. The request was simply set out in the factum of the solicitor.
[8] The panel was concerned with the process followed in the court below and the way the request was made in this court. By e-mail sent prior to the appeal, the panel directed the parties to make submissions with reference to the Supreme Court of Canada’s recent decision on sealing orders set out in Sherman Estate v. Donovan, 2021 SCC 25, 458 D.L.R. (4th) 361. On whether the decision should not be publicly released, or should be anonymized, the panel directed the parties to Part V, Section F (Publication Bans) of the Consolidated Provincial Practice Direction of the Ontario Superior Court of Justice. The panel noted that the Practice Direction establishes the default procedure to be followed when a party seeks a discretionary publication ban, including any discretionary order such as anonymization, non-publication of a decision, or a sealing order. The parties were asked to confirm that they had notified the media in accordance with the Practice Direction prior to obtaining the initial sealing order, and that they had notified the media with respect to the sealing order and non-publication order being sought from Divisional Court.
[9] Any request for non-publication of a court decision is extraordinary and the Practice Direction must be followed. This is consistent with policies of the Canadian Judicial Council setting out the importance of publishing judicial decisions. The CJC’s Model Policy for Access to Court Records in Canada, at section 4.6.1, provides with respect to judgments:
Members of the public shall have on-site access and, where available, remote access to all judgments.
Discussion: The access policy should provide for broad public access to every judgment rendered by the court, subject to any applicable statutory or court-ordered publication ban.
[10] The parties withdrew their request for a sealing order, as well as the request to anonymize or refrain from publishing the decision. There is no sealing order. The court file is amended accordingly, and court staff are directed to remove the sealing order notation from the file.
Issues and Analysis
[11] The appellant seeks to set aside the motion judge’s assessment of the solicitor’s account.
No Error in Relying on Findings of Assessment Officer
[12] The motion judge found that the assessment officer did not have jurisdiction to conduct the assessment because the retainer was a “contingency fee agreement” within the meaning of the Solicitor’s Act. Considering this, the appellant submits that the motion judge erred in law in relying on the assessment officer’s report and findings, because the report of the assessment officer was a nullity and was not properly available as an evidentiary record. The appellant argues that the motion judge had to undertake his review independent of any findings made by the assessment officer. She argues the matter should be referred to a different judge for an assessment. I do not agree.
[13] The motion judge has broad discretion on a motion opposing confirmation. Subrule 54.09(5) provides that:
(5) A judge hearing a motion under subrule (2) or (4) may require the referee to give reasons for his or her findings and conclusions and may confirm the report in whole or in part or make such other order as is just.
[14] The case of Couper v. Adair Barristers LLP, 2019 ONSC 5016 is like this case, in that the assessment officer conducted an assessment in a contingency fee retainer case. The motion judge held that the client was estopped from raising jurisdiction in that case but went on to assess the solicitor’s fees based on the findings of the assessment officer. The Court of Appeal, in a decision reported at 2020 ONCA 372, did not comment on the estoppel issue but confirmed that the motion judge’s use of the assessment officer’s report was appropriate. The court held at para. 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.
[15] Thus, even where an assessment officer lacks jurisdiction, a judge may rely on the assessment officer’s report as an evidentiary record. In a very thorough decision, the motion judge carefully reviewed the findings of the assessment officer, who heard evidence and argument over three days. The motion judge adopted most, although not all, of the assessment officer’s findings. The motion judge applied his own thorough analysis to the facts he accepted. There was no error of law in this approach. Indeed, judicial economy, the principle of finality, and efficiency in the appropriate use of both public resources and those of the parties, support the motion judge’s decision to proceed as he did.
The Appellant Did Not File Objections
[16] The appellant did not file objections to the assessment report although she had this right under subrule 58(1). The appellant now argues that the decision to assess the account without objections was a mistake in law and an unfair exercise of the motion judge’s discretion since the motion solely concerned jurisdiction.
[17] I do not agree. The appellant could have made objections even though she was contesting jurisdiction. She chose not to do so. The Court of Appeal’s decision in Evans Sweeny Bordin LLP v Zawadzki, 2015 ONCA 756, predates the motion judge’s decision. That case established that a motion judge may find an assessment officer lacked jurisdiction yet may use the report of the assessment officer in conducting his or her own assessment.
[18] Further, the appellant did not advance any objections to the report of the assessment officer before the motion judge. The motion judge held, at para. 46: “At the same time, I see no practical value in having a different judge or a different assessment officer re-do Assessment Officer Brough's work of hearing evidence and making findings of fact when no substantive concerns have been raised with this aspect of his report.” There was no error of law or principle in the motion judge proceeding to assess the account as he did.
Quantum of Fees
[19] The motion judge undertook a quantum meruit assessment of the solicitor’s account. He set out the appropriate legal test from Newell v. Sax, 2019 ONCA 455, which affirmed the well-established criteria articulated in Cohen v. Kealey (1985), 10 O.A.C. 344 (C.A.).
[20] The appellant argues that there was “no analysis” of the relevant legal factors by the motion judge. I do not agree. The motion judge accepted most, but not all, of the reasoning and analysis of the assessment officer, which involved application of the Cohen factors. However, he carefully analyzed the context to come to his own conclusion on a fair and reasonable amount of fees, applying the law to the facts and further reducing the solicitor’s account.
[21] The appellant also argues about timing - that the fees should not be due and owing until the completion of the underlying wrongful dismissal action. I do not agree. The account rendered was for advice given until after the mediation. There is no requirement that a solicitor wait until some undetermined time for an assessment of an account.
[22] The motion judge’s decision on the fair and reasonable quantum of fees given the context was a discretionary decision, subject to considerable deference. There is no error in principle, nor palpable and overriding error of fact or mixed fact and law.
Order
[23] The appeal is dismissed. Court staff are directed to amend the court file by removing the sealing order, and by removing the sealed designation from the court file number. The appellant is to pay the respondent costs of $10,000, all inclusive.
“Kristjanson J.”
I agree “Lococo J.”
I agree “Emery J.”
Released: December 2, 2021
CITATION: Cao v. Monkhouse Law Professional Corporation, 2021 ONSC 7894
DIVISIONAL COURT FILE NO.: 414/20
DATE: 20211202
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Lococo, Emery and Kristjanson JJ.
BETWEEN:
SUYI CAO
Appellant
– and –
MONKHOUSE LAW PROFESSIONAL CORPORATION
Respondent
REASONS FOR JUDGMENT
Released: December 2, 2021