CITATION: Donatelli-Venneri v. Stern Landesman Clark LLP, 2023 ONSC 4936

DIVISIONAL COURT FILE NO.: 208/21

DATE: 2023/09/05

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Sachs, Backhouse and Schabas JJ.

BETWEEN:

ROSE DONATELLI-VENNERI, MICHAEL VENNERI, PROFESSIONAL COUNSELLING SERVICES and COMPREHENSIVE HEALTH CARE INC.

Appellants

– and –

STERN LANDESMAN CLARK LLP

Respondent

Rose Donatelli-Venneri and Michael Venneri on their own behalf

Paul Stern and Margot Davis on behalf of the Respondent

HEARD at Toronto: August 21, 2023

H. Sachs J.

Overview

[1] The Appellants are appealing a decision by Myers J. dismissing an appeal of an accounts assessment made pursuant to s. 6(9) of the Solicitors Act, R.S.O. c. S. 15. They also appeal the decision of Myers J. that awarded the Respondent its costs of the appeal on a substantial indemnity basis.

[2] For the reasons that follow, I would dismiss the appeal.

Background

[3] The Appellants first retained the Respondent law firm in 2013 to set aside a default judgment that had been made against them. The judgment was the result of a lawsuit that had been commenced against them 10 years earlier in which the insurance company plaintiff claimed that the Appellant, Ms. Donatelli-Venneri, wrongfully held herself out to be a registered psychologist. Her son, the Appellant, Michael Venneri, was also alleged to have assisted his mother in her fraudulent activities, which consisted of counselling services delivered from late 1999 to early 2001.

[4] The insurance company claimed that as a result of the Appellants’ actions, they were wrongfully induced to pay over $30,000 to insured patients. The Appellants counterclaimed, claiming millions of dollars in compensation for the injuries they say they suffered as a result of what they alleged were unfounded allegations against them.

[5] As a result of the Appellants’ failure to pay eight outstanding costs awards and their repeated failure to answer undertakings given on examination for discovery, McPherson J. struck the Appellants’ pleadings. The Court of Appeal dismissed an appeal from that decision, and the Supreme Court of Canada denied leave to appeal.

[6] Once the Appellants’ pleadings were struck, the insurance company sought and obtained default judgment in 2013. The Appellants retained the Respondent law firm to move to set aside the default judgment. In 2017, Whitten J. dismissed their application.

[7] On March 1, 2018, the Respondent applied for an assessment of their accounts. Four accounts were assessed, totalling $85,963.23. An Assessment Hearing was held over three days, resulting in the Assessment Officer allowing the Respondent’s accounts, and ordering the Appellants to pay an outstanding balance of $41,541.79. Throughout that hearing, Ms. Donatelli-Venneri’s conduct was called into question by the Assessment Officer, and she was removed from the hearing twice due to what the Assessment Officer found to be unruly and disruptive behaviour.

[8] The Appellants appealed the Assessment Officer’s decision, citing procedural fairness issues, including bias. The appeal was heard in November 2020 by way of a teleconference. Myers J. dismissed the appeal, finding that the Appellants’ submissions about lack of notice were unfounded, and that the Assessment Officer’s conduct in removing Ms. Donattelli-Venneri was a justifiable exercise of the officer’s discretion to control her own hearing.

[9] Other issues raised by the Appellants included the allegation that the Assessment Officer erred both in her credibility assessments and in her assessment of their ability to pay the outstanding accounts. The Appellants also alleged that the Respondent had violated the Rules of Civil Procedure and the ethical rules governing lawyers’ behaviour. Myers J. dismissed all these arguments.

[10] Myers J. found that the Appellant, Ms. Donatelli-Venneri, behaved in a way that was disruptive of the hearing before him. Thus, he ordered that her microphone be muted during parts of the hearing.

[11] Myers J. awarded the Respondent its costs of the appeal, fixed on a substantial indemnity basis. The scale of costs was awarded based on the fact that the Respondent had served a Rule 49 offer and because of the unfounded attacks on the integrity and competence of the members of the Respondent law firm.

[12] Since the dismissal of the appeal resulted in a final order to uphold an award for payment in the amount of less than $50,000 (exclusive of costs), the Appellants appealed the decision of Myers J. to the Divisional Court.

Issues Raised on this Application

[13] The Appellants allege that Myers J. erred in failing to find that the hearing before the Assessment Officer was conducted in a procedurally fair manner.

[14] They also allege that the appeal before Myers J. was conducted in a procedurally unfair manner. In particular:

(a) Myers J. dismissed their request for an adjournment of the appeal, which he should have granted. In support of their position, the Appellants submitted that proceeding with the appeal violated a Notice to the Profession.

(b) Myers J. violated procedural fairness when he ordered that the appeal be held by teleconference and when he muted the Appellant, Ms. Donatelli-Venneri at points during the appeal. According to Ms. Donatelli-Venneri, she has a cognitive disability that required the appeal be held in-person. The Appellants also submitted that two judges (Glustein J. and Kimmel J.) had ordered that the appeal be held by way of an in-person hearing.

(c) The appeal proceeded in the absence of a full transcript of the proceeding before the Assessment Officer. The Appellants argue that this was procedurally unfair because their arguments on the appeal could not be properly assessed without a review of the transcript.

(d) At one point during the appeal hearing, the Appellants had technical difficulties that prevented them from hearing what the Respondent’s representative (Paul Stern) was saying. When sound was restored, Myers J. gave them a summary of what had been said while they could not hear. According to the Appellants, without a transcript of the appeal hearing (which was not provided), this court must find that this resulted in them being denied procedural fairness.

(e) Myers J. gave oral reasons for denying the Appellants’ adjournment request. The Appellants did not receive a transcript of these reasons until June of 2022. According to the Appellants, this delay resulted in an “untimely” decision, which in turn violated their right to procedural fairness.

(f) Myers J. failed to follow the Statement of Principles on Self Represented Litigants established by the Canadian Judicial Council.

Issues Related to Justice Myers’ Reasons

[15] The Appellants also made several submissions challenging the findings of Myers J. In particular, they alleged that he erred in upholding the Assessment Officer’s findings regarding their ability to pay and their credibility. They alleged that he erred in his treatment of the retainer agreement between them and the Respondent. According to them, that agreement made it clear that the retainer paid ($16,500) was the full amount that they were going to have to pay the Respondent for their services.

[16] The Appellants submitted that Myers J. erred in failing to set aside the order of the Assessment Officer, given that she stated the Respondent law firm did not have to prove that they completed the legal work they were retained for. In other words, the Appellants allege that the Assessment Officer failed to appreciate that the onus of proof to justify the charges for legal services lay with the Respondent, and that their appeal should have been allowed on this basis.

[17] The Appellants argued that the appeal should have been allowed on the basis that the Respondent filed an affidavit in support of the motion to set aside the default judgment that contained an error. Specifically, the affidavit stated that Ms. Donatelli-Venneri had been injured in an automobile accident when in fact her injuries were the result of being caught between glass doors.

Costs Issues

[18] The Appellants allege that Myers J. erred in principle in awarding the Respondent its costs of the appeal fixed on a substantial indemnity basis.

Analysis

[19] On the date set for the appeal before Myers J., the Appellants requested an adjournment. As noted, Myers J. denied that request and gave oral reasons for doing so. The transcript of those reasons reveals that in denying the adjournment request, Myers J. considered all the relevant factors, including the fact that the hearing had been marked peremptory to the Appellants. The Appellant, Ms. Donatelli- Venneri, also acknowledged that she had been ready to proceed with the appeal for some time. Myers J. noted that Ms. Donatelli-Venneri had raised concerns about her disability, which could cause her to need more time. Myers J. indicated that Ms. Donatelli-Venneri would have the time that she needed to make her submissions, provided that she stayed on point. She also raised a concern about the hearing not being held in person. Myers J. found that the interests of justice favoured proceeding with the appeal for a number of reasons. These included that this was an appeal on the record, that there was a need for social distancing during the pandemic, the long delays that had already been incurred, the direction that the matter was peremptory to the Appellants, and the fact that everyone was prepared for the appeal.

[20] The decision to refuse an adjournment is a discretionary one. As such, it will not be overturned unless there is an error in principle, or if the decision is clearly wrong. Neither threshold is met in this case. Further, contrary to the submissions of the Appellant before us, there was no direction from any judge that the appeal be held in person, and there was no Notice to the Profession prohibiting the holding of hearings on the date set for the appeal.

[21] In his reasons on the merits, Myers J. details the circumstances that led to his muting Ms. Donatelli-Venneri. In essence, Myers J. gave Ms. Donatelli-Venneri repeated directions to focus on the allegations of error by the Assessment Officer. Instead of heeding these directions, Ms. Donatelli-Venneri continued to argue an issue that was clearly irrelevant to the appeal. Myers J. gave Ms. Donatelli-Venneri an explanation as to why he considered the issue irrelevant, and she became more aggressive and heated in her submissions on the irrelevant point. As a result, Myers J. instructed the Registrar to mute Ms. Donatelli-Venneri’s line and end her submissions. In doing so, he highlighted the court’s responsibility to control its own process.

[22] In Hodder v. Lindhorst, 2016 ONCA 42, the Ontario Court of Appeal affirmed that where a litigant is disruptive, a judge is entitled to have them removed from the courtroom. Since the appeal was not held in person, Myers J. could not have her removed from the courtroom. The equivalent tool in a teleconference hearing is to mute the litigant’s line.

[23] While it is obviously not conducive to the appearance of justice to silence litigants in this manner, Myers J. was correct when he stated that a judge has an obligation to control their own process. If litigants refuse to abide by instructions from a judge concerning their submissions or their behaviour, court hearings can be hijacked in a way that can cause real harm to the administration of justice. In this case, Myers J. had been very clear with Ms. Donatelli-Venneri about why she should cease arguing the point she was arguing. Instead of heeding this direction, she continued to press the point in an aggressive and heated manner. In view of this, Myers J. was entitled to take the steps he needed to in order to end her oral submissions. As Myers J. noted, he had extensive written material from the Appellants setting out their position on the appeal.

[24] The hearing before Myers J. proceeded without a transcript of the Assessment Hearing. As the appellants in that hearing, it was the Appellants’ responsibility to order and to provide this transcript. No satisfactory explanation was given for why they did not do so. Further, thanks to the Respondent, there was a transcript of the Assessment Hearing available for the hearing of the appeal before us. The Appellants did not demonstrate how having a transcript would have assisted them in making the points they wished to make on the appeal before Myers J. In fact, to the extent we were taken to that transcript, the Appellants’ arguments were undermined, not supported.

[25] The Appellants also raise an issue about the lack of a transcript of the hearing before Myers J. There is no requirement that an appeal on the record must be recorded. It is the practice in the Toronto courts to record such proceedings when one or more of the parties is self-represented. However, this practice is in place to ensure that the judges presiding over such hearings have a reliable record for their own purposes of what took place during the hearing. In this case, the Appellants wrote to Myers J.’s assistant to request a transcript of the appeal. She replied that if they required a transcript, they needed to contact the transcription service. She never told the Appellants that the hearing had not been recorded. On the record before us, we cannot determine whether the hearing was recorded. However, we can determine that the absence of a transcript of the appeal did not undermine the fairness of the appeal hearing. The Appellants’ main argument that it did is that at one point, due to technical difficulties, they were unable to hear Mr. Stern’s submissions. When the difficulties were sorted out, Myers J. summarized for them what Mr. Stern had said. There is nothing unfair about this solution to an unfortunate technical problem, particularly since this was a hearing on the record where no evidence was being given.

[26] As noted, Myers J. did provide the Appellants with a transcript of his oral reasons for denying their adjournment request. The fact that he did so many months after the ruling was made is not a ground for finding that the appeal before us should be allowed. The Appellants were present for the oral ruling and heard the reasons.

[27] There is also no merit to the suggestion that Myers J. failed to deal with the Appellants correctly, given that they were self-represented litigants. Myers J.’s reasons detail the efforts he made to advise them of what they needed to focus on in order to successfully argue their appeal. The Appellants refused to abide by those directions.

[28] The Appellants submitted that Myers J. erred in failing to allow their appeal on the basis that the Assessment Officer excluded Ms. Donatelli-Venneri from the courtroom. Given Ms. Donatelli-Venneri’s disruptive behaviour before the Assessment Officer, Myers J. made no error when he found that the Assessment Officer’s actions were justified on the basis that she had the obligation to control her own process.

[29] Contrary to the Appellants’ submissions, Myers J.’s reasons disclose no error in his treatment of the Assessment Officer’s credibility assessments (which he correctly noted were entitled to great deference) or her assessment of the Appellants’ ability to pay the accounts in question (there was evidence before her from which she could draw the inference that this ability existed). Myers J. was also correct when he found that the retainer agreement in question did not cap the fees that were to be paid by the Appellants to the Respondent. The full text of that agreement was cited by the Assessment Officer in her detailed and lengthy reasons.

[30] The Appellants’ assertion that their appeal before Myers J. should have been allowed because the Assessment Officer failed to appreciate the onus that a solicitor has on such a hearing is not borne out by the transcript of the hearing. It is clear from that transcript that the Assessment Officer correctly instructed herself as to that onus. It is also clear that she found that the Respondent took the steps necessary to meet that onus by providing extensive binders containing not only the dockets detailing the work that was performed, but also providing the documents relevant to the docket in question.

[31] The Appellants asserted before us (as they did before Myers J.) that they were not provided with a copy of these documents in time to make use of them at the hearing. The Respondent disputed this assertion, and the Assessment Officer found that there was no merit to the procedural and notice concerns raised by the Appellants. Myers J. also found that the Appellants had not demonstrated that this conclusion was in error and, other than making bald assertions, the Appellants have given this court no basis for finding that Myers J. erred in his treatment of this issue.

[32] The Appellants’ submission that their appeal before this court should be allowed because the Respondent erred in an affidavit also has no merit. It is true that the error was made, but once it was pointed out, Mr. Stern took steps to advise the court of the error.

[33] Finally, there is no basis to find that Myers J. erred in awarding the Respondent its costs of the appeal on a substantial indemnity basis. The presence of a Rule 49 offer justifies such an award. Further, in Catalyst Group Inc. v. Moyse, 2018 ONCA 283, the Ontario Court of Appeal found that a litigant’s conduct should be taken into account in determining the appropriate costs order.

Conclusion

[34] For these reasons the appeal is dismissed. The Respondent seeks costs in the amount of $5000, all inclusive, which I find to be reasonable and appropriate. It is so ordered.

H. Sachs J.

I agree _______________________________

Backhouse J.

I agree _______________________________

Schabas J.

Released: September 5, 2023

CITATION: Donatelli-Venneri v. Stern Landesman Clark LLP, 2023 ONSC 4936

DIVISIONAL COURT FILE NO.: 208/21

DATE: 2023/09/05

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Sachs, Backhouse and Schabas JJ.

BETWEEN:

ROSE DONATELLI-VENNERI, MICHAEL VENNERI, PROFESSIONAL COUNSELLING SERVICES and COMPREHENSIVE HEALTH CARE INC.

Appellants

– and –

STERN LANDESMAN CLARK LLP

Respondent

REASONS FOR JUDGMENT

H. SACHS J.

Released: September 5, 2023