Court File and Parties
CITATION: Shankman v. Furney, 2023 ONSC 4353
DIVISIONAL COURT FILE NO.: 074/23
SMALL CLAIMS COURT FILE NO. SC-19-11401-00
DATE: 20230726
ONTARIO
SUPERIOR COURT OF JUSTICE – DIVISIONAL COURT
BETWEEN:
HOWARD SHANKMAN
Applicant
– and –
MARYAM FURNEY AND ALEX FURNEY
Respondents
Howard Shankman, self-represented and acting in person
Maryam Furney and Alex Furney, self-represented and acting in person
HEARD by videoconference at Toronto: July 25, 2023
REASONS FOR DECISION
LEIPER J.
Introduction and Background
[1] This is an appeal from a judgment of Deputy Judge O. Kahane-Rapport in favour of the Plaintiff, Howard Shankman, in the sum of $5,345with $742in costs.
[2] The litigation concerned a claim for outstanding legal fees. The Defendants retained the Plaintiff on a limited scope retainer to assist them with several outstanding civil matters in the summer of 2019. At trial, after hearing evidence from both the Plaintiff and from the Defendant, Alex Furney, the Deputy Judge reduced the amount claimed by the Plaintiff and gave judgment for a reduced amount based on her assessment of the evidence and reasonable fees for the work done based on 27 hours of work.
[3] The primary issues on appeal are whether the Deputy Judge erred in finding there had been a limited scope retainer where such retainer had not been reduced to writing as required by the Rules of Professional Conduct, and whether the Deputy Judge had failed to provide Mr. Furney with procedural fairness by not advising him at the start of trial of his right to cross-examine the Plaintiff.
[4] For the reasons that follow, I find that the Deputy Judge gave comprehensive reasons for her decision that do not reveal any error in law concerning the limited scope retainer. Further, the Deputy Judge did not fail to provide Mr. Furney with procedural fairness at trial—she advised him of the procedures he could follow, including cross-examination of the Plaintiff, the ability to give his own evidence and to make argument. I am satisfied that Mr. Furney was afforded an opportunity to be heard. He achieved a significant reduction in the fees billed to him by the Plaintiff, and received detailed reasons explaining how the balance owing was calculated by the Deputy Judge.
Issue #1: Was the Defendant, Alex Furney denied procedural fairness?
[5] On appeal, Mr. Furney submitted that during the Plaintiff’s evidence he did not know that he could ask questions on cross-examination, and that had he known this would be coming, he would have taken detailed notes and questioned the Plaintiff as to each part of his account for the services provided.
[6] Mr. Furney relies on the decision of the Court of Appeal for Ontario in Moore v. Apollo Health and Beauty Care, 2017 ONCA 383, in which the court considered the trial judge’s duty to a self-represented plaintiff. In that case, the trial judge had erroneously concluded that the plaintiff was abandoning parts of her claim. The Court of Appeal referred to the Statement of Principles for Self-represented Parties and Accused Persons, issued in 2006 by the Canadian Judicial Council which discussed the reality that for self-represented person, court processes are experienced as “complex, confusing, and intimidating”. In that context, the Court observed that trial judges are obliged to explain the law and its implications before self-represented parties make critical choices. Trial judges should consider “providing self-represented with information to assist them in understanding and asserting their rights, or to raise arguments before the court”: Moore at para. 45.
[7] These expectations were met in this case. At the beginning of the trial, the Deputy Judge explained to the Plaintiff that she had reviewed the pleadings and told him that she expected him to prove the services he said he provided. The Deputy Judge cautioned Mr. Furney about not giving evidence based on information that his wife (his co-Defendant who was not present at trial) had said to him. The trial proceeded in Ms. Furney’s absence.
[8] The Plaintiff testified in detail about his accounts and the legal services that he provided to the Defendants. At the end of his evidence, the Deputy Judge explained to the Defendant, Alex Furney that he could ask questions of the Plaintiff before giving his own evidence. The Deputy Judge advised Mr. Furney that if he disputed the Plaintiff’s evidence that he would need to give him the chance to explain. Mr. Furney said that he disputed certain dates and he appeared to begin to ask a question. The Deputy Judge directed him on how to ask the question, and then Mr. Furney declined to ask anything further. He said that the Plaintiff had “presented well” but that his version would differ. Mr. Furney then said that there was no point in asking questions because the Plaintiff would simply repeat what he had said. Mr. Furney elected to present his own evidence and asked no further questions.
[9] Mr. Furney testified and challenged much of the Plaintiff’s evidence as to the services billed. He was permitted to provide his recollection as to the retainer, the work done and the dates. At one stage, the Plaintiff objected to evidence that had not been the subject of cross-examination. The Deputy Judge allowed Mr. Furney to continue with his evidence.
[10] In these circumstances, where the nature of the dispute was clear and Mr. Furney was advised of his right to ask questions, followed by a lengthy opportunity to provide his side of the solicitor-client story, I cannot conclude that his right to procedural fairness was denied. The issues were clear, and both parties testified about the areas in dispute. Mr. Furney chose not to ask questions because as he put it, the Plaintiff “presented well.” Mr. Furney believed that the Plaintiff might just repeat his evidence, making it pointless for him to cross-examine the Plaintiff. This was a legitimate trial strategy.
[11] As it turned out, the reasons reveal that some of the weaknesses in the Plaintiff’s evidence which Mr. Furney raised with the court, led the Deputy Judge to significantly reduce the fees found to be payable.
[12] The Deputy Judge reviewed the services provided in detail and found that there had been a retainer between the Plaintiff and the Defendants to assist them with several files on a limited scope basis. She also concluded that there were errors in the dockets, certain amounts appeared to have been “rounded up” and the accounts lacked detail. The Deputy Judge considered the reasonable amount of work required in the circumstances, looked at supporting documentation and found that the Plaintiff had performed services worth $15,345 which, after subtracting the $10,000 retainer, led her to issue a judgment of $5,345.
[13] The Deputy Judge made detailed findings which addressed the positions of both parties. She provided information to Mr. Furney about his ability to testify and to ask questions. The way this information was given, and the timing of the information, permitted Mr. Furney to make adequate choices as the trial unfolded.
[14] I would not give effect to this ground of appeal.
Issue #2: Did the Deputy Judge err in her treatment of the limited scope retainer?
[15] Mr. Furney also submits that because the Plaintiff did not put the terms of the limited scope retainer in writing, and breached the Rules of Professional Conduct, the decision should be reversed, and a new trial ordered.
[16] I disagree. The Deputy Judge was alive to this issue and concluded that there was nothing before her that linked the Rules of Professional Conduct to the issues on the claim before her. The evidence was clear that there had been a retainer and that the Defendants did retain the Plaintiff to represent them on a limited scope basis to adjourn several civil matters and to deal with a refusals motion. The issue was the amount of work done, the timing and whether this had been a flat fee case or to be based on hours worked at the Plaintiff’s hourly rate.
[17] While reducing the financial terms and scope of work to writing might have prevented this litigation because there would be no dispute, the fact that it was not reduced to writing does not mean that the Plaintiff did not have a valid claim for payment. He was required to substantiate his accounts and the Deputy Judge engaged in that task to the partial benefit of both parties.
[18] The Deputy Judge did not err in making the findings concerning the limited scope retainer and the application of the Rules of Professional Conduct.
Other Issues
[19] Mr. Furney’s materials raised several other issues of trial fairness, including being asked to move things along at several points in the trial and not being asked if he was seeking an adjournment.
[20] The Deputy Judge gave some directions in order to clarify and understand Mr. Furney’s evidence. She also permitted him to provide detail. He testified at length. It is clear from her interventions that she was attempting to understand and to have Mr. Furney complete one area before moving to the next to avoid confusion. This is part of the role of the trial judge. Reading the trial transcript, I conclude that Mr. Furney was given a satisfactory hearing and allowed to present his case to the court.
[21] On the question of an adjournment, there was no suggestion that Mr. Furney wished to adjourn the trial—that issue arose in the context of the Plaintiff wishing to have an adjournment due to Ms. Furney’s absence. Mr. Furney provided a doctor’s note explaining why she was not present. There was nothing otherwise in the record suggesting that Mr. Furney was not prepared to proceed. The matter had been adjourned once before. The Deputy Judge did not err in proceeding with the trial.
Conclusion
[22] The appeal is dismissed. Given the amount in dispute, the fact that the Plaintiff represented himself and the relative lack of complexity in the issues, costs are ordered payable by Mr. Furney to the Plaintiff in the amount of $1,500.
Leiper J.
Date: July 26, 2023
CITATION: Shankman v. Furney, 2023 ONSC 4353
DIVISIONAL COURT FILE NO.: 074/23
SMALL CLAIMS COURT FILE NO. SC-19-11401-00
DATE: 20230726
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
HOWARD SHANKMAN
Respondent/Plaintiff
– and –
MARYAM FURNEY and ALEX FURNEY
Appellants/Defendants
REASONS FOR DECISION
LEIPER J.
Date of Release: July 26, 2023