CITATION: Wong v. Dale, 2025 ONSC 3551
DIVISIONAL COURT FILE NO.: 006/25
DATE: 20250626
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Hebner, O’Brien, and Muszynski JJ
BETWEEN:
EDITH WONG
Appellant
– and –
ELLIOTT DALE
Respondent
Edith Wong, Self-Represented
Elliott Dale, Self-Represented
HEARD in Brampton: on June 9, 2025
O’BRIEN J.
reasons for Decision
Overview
[1] Ms. Wong brings this appeal from the decision of the motion judge, Stewart J., dismissing her motion seeking the assessment of the respondent Mr. Dale’s account. Ms. Wong and her son retained Mr. Dale as their solicitor to act on a residential property purchase, which closed in November 2022. Mr. Dale’s final account totaled $ 4,692.02. Ms. Wong disputes $1600 of that amount.
[2] Although the question before the motion judge was whether to permit the assessment of the account, the main point of contention between the parties was when Ms. Wong received Mr. Dale’s final account for his services on the transaction.
[3] Ms. Wong requisitioned an assessment in the Superior Court of Justice under the Solicitors Act, R.S.O. 1990, c. S. 15 (the Act). Section 3 of the Act requires a client seeking an assessment of a solicitor’s bill by requisition to the court registrar to do so within one month from the delivery of the bill unless there are special circumstances. The assessment officer found Mr. Dale provided the final account by email and regular mail on November 22, 2022. Ms. Wong did not requisition the assessment until January 6, 2023. The assessment officer found that because Ms. Wong was outside the one-month limit under s. 3, he did not have jurisdiction to assess the account. He stayed the proceeding pending an order of the Superior Court of Justice as to whether the assessment proceeding would be permitted to proceed.
[4] Ms. Wong subsequently started a Small Claims Court action. The deputy judge dismissed the action on the basis that the appropriate course was a motion in Superior Court to seek to proceed with the assessment since a Superior Court proceeding had already been started.
[5] Before Stewart J., Ms. Wong submitted she did not receive the final account before February 29, 2024, which was the date of the hearing before the assessment officer. However, Stewart J. found Ms. Wong had not adduced any evidence to demonstrate she received the account after the date Mr. Dale said it was delivered. She did not otherwise find a basis to permit the assessment to proceed. She subsequently ordered costs of the motion in the amount of $2,723.86.
[6] On appeal, Ms. Wong submits the motion judge erred in accepting the final account was delivered on November 22, 2022. In her submission, Mr. Dale failed to provide any confirmation of delivery. She says there was no evidence the final account was included in Mr. Dale’s final report, as it should have been. In addition, in her submission, the motion judge erred by finding the trust ledger, which Ms. Wong acknowledges she reviewed on November 21, 2022, was identical to the final account. Ms. Wong also submits there was a breach of procedural fairness because she first received the final account during the hearing before the assessment officer. In her submission, she was entitled to receive any documents Mr. Dale relied on before the hearing. Finally, Ms. Wong appeals the motion judge’s costs order.
[7] As I discuss below, although the parties were focused on the date the account was delivered, the relevant questions when the matter came to Superior Court were whether the account had been paid and, if so, whether there were special circumstances that would justify referring it for assessment. The date the account was delivered remained important to the question of payment. The motion judge’s reasons demonstrate that the account was paid. Ms. Wong had not identified any error or special circumstances that would justify interfering in the motion judge’s decision to decline referring the account for assessment.
Analysis
[8] Although not pursued in oral argument, in his written material, Mr. Dale submitted this court does not have jurisdiction over the appeal without leave being granted. He argued the motion judge’s order is interlocutory and, therefore, leave to appeal is required. This issue can be dealt with summarily. Mr. Dale relied on Durbin v Brant, 2017 ONCA 463, where an appeal was brought from an order referring a legal account for assessment under the Act. The Court of Appeal found that the order was interlocutory, given that it did not resolve the substantial issue of the legal fees. But in that case, the matter was not at an end. The legal fees were to go on to assessment. Here, the motion judge’s decision put an end to the appellant’s proceeding. I find this court has jurisdiction.
[9] For Ms. Wong to succeed on appeal, she must demonstrate an error of law or a palpable and overriding error of fact or mixed fact and law: Housen v. Nikolaisen, 2002 SCC 33. The court will also defer to the motion judge’s exercise of discretion absent an error in principle or a clearly unreasonable result: Guillemette v. Doucet, 2007 ONCA 643, (2007), 88 O.R. (3d) 90, at para. 4.
[10] Where there are no “special circumstances,” a client may requisition an order from the registrar of the Superior Court of Justice for the assessment of a solicitor’s account that has already been delivered. This must be done within one month of delivery. Subsection 3(b) of the Act provides:
- Where the retainer of the solicitor is not disputed and there are no special circumstances, an order may be obtained on requisition from a local registrar of the Superior Court of Justice
(b) by the client, for the assessment of a bill already delivered, within one month from its delivery.
[11] If the assessment is sought through an application to Superior Court after the one-month period, different provisions of the Act apply if a client has paid an account compared to an account that remains unpaid. If the account is unpaid, under s. 4 of the Act, a reference for an assessment shall not be made after twelve months from the time the bill was delivered, except under “special circumstances.” If the bill is unpaid and a reference is made before twelve months, a judge of the Superior Court has the discretion whether to exercise the court’s inherent jurisdiction to order an assessment. The judge need only be satisfied that it is just and equitable that a reference for an assessment be made: Crosslink Bridge Corp. v. Fogler, Rubinoff LLP, 2024 ONCA 230, at para. 14.
[12] However, where the account has been paid, s. 11 of the Act applies. Section 11 allows a Superior Court judge to refer an account for assessment, even though it has been paid, if there are “special circumstances.” Section 11 provides:
- The payment of a bill does not preclude the court from referring it for assessment if the special circumstances of the case, in the opinion of the court, appear to require the assessment.
[13] The requirement for “special circumstances” under s. 11 “reflects the commonsense inference that payment of an account implies an acceptance of the reasonableness of the account: Guillemette, at para. 16.
[14] Ms. Wong has not demonstrated a basis for this court to intervene in the motion judge’s decision. It is evident on the findings below that the account sought to be assessed was paid. The motion judge found that Ms. Wong received the solicitor’s account on November 22, 2022. Ms. Wong does not dispute she attended at Mr. Dale’s office on November 21, 2022 and viewed a document that set out the final, full amount owed for fees and disbursements, which she paid. She also agrees she received a copy of that document shortly thereafter.
[15] However, Ms. Wong submits the document from the November 21, 2022 meeting was not the final account. She says it was a “trust ledger” and was different from the “final account,” which she says she only received for the first time during the hearing before the assessment officer on February 29, 2024. Ms. Wong takes issue with the motion judge’s finding that the trust ledger and final account were identical. Although not directly stated, Ms. Wong’s argument at its best is that she did not knowingly pay this final account because she did not review it before she made payment.
[16] I accept the motion judge erred to the extent she stated the documents were identical. The document Ms. Wong refers to as the “final account” sets out the same total for fees and disbursements as the trust ledger but provides a more detailed breakdown of the disbursements. Although the two documents are similar, particularly in that they provide the same total amount owed, they are not identical.
[17] But the motion judge’s treatment of the documents as identical was not an overriding error that affected the outcome of the motion. It was open to the motion judge to accept the assessment officer’s finding that the solicitor’s account for the purpose of the assessment was delivered on November 22, 2022. The assessment officer was referring to the document Ms. Wong now calls the trust ledger, and that he called the “account/trust ledger” in his decision. This is the document that was enclosed in Mr. Dale’s final report to Ms. Wong. Importantly, it is also the same document Ms. Wong appended to her requisition for an assessment of account on January 6, 2023. In other words, this is the account Ms. Wong was complaining about. Moreover, there can be no suggestion that it was an interim account since no further work was done after that point, it contained the full fees and disbursements owed on the transaction, and it was enclosed in the final reporting letter. In these circumstances, the motion judge did not err in treating the trust ledger document as the solicitor’s account Ms. Wong sought to have assessed. She similarly did not err in finding that document was delivered to Ms. Wong on November 22, 2022.
[18] There is no dispute Ms. Wong paid the amounts owing as set out in the trust ledger document when she reviewed it and transferred the funds on November 21, 2022. In short, Ms. Wong paid the relevant account on November 21, 2022 and received a copy of it shortly thereafter. Under s. 11 of the Act, she was required to show special circumstances that would justify allowing the assessment to proceed. She has not put forward any special circumstances.
[19] Ms. Wong also submits the process before the assessment officer was unfair because she was not prepared to address the final account, since Mr. Dale did not file it before the hearing. However, given the conclusion that the trust ledger Ms. Wong was given on November 22, 2022 constituted the solicitor’s account for the purpose of the assessment, there was no breach of procedural fairness arising from the introduction of the other document. In any event, the hearing officer had the discretion to allow the admission of a new document at the hearing. In this case, given the similarities between the documents, there would have been little concern that Ms. Wong was prejudiced by the introduction of the new document.
[20] There is no basis to interfere in the motion judge’s decision not to allow the assessment to proceed.
[21] Given my conclusion on the merits of the appeal, I do not see any basis to interfere in the motion judge’s costs award.
Disposition
[22] Therefore, the appeal is dismissed.
[23] Mr. Dale seeks costs of the appeal of over $5,000. He represented himself and did not serve or upload his bill of costs prior to the hearing of the appeal, as required by the Consolidated Practice Direction for Divisional Court Proceedings. In these circumstances, no costs are awarded.
_______________________________ O’Brien J.
I agree _______________________________
Hebner J.
I agree _______________________________
Muszynski J
Released: June 26, 2025
CITATION: Wong v. Dale, 2025 ONSC 3551
DIVISIONAL COURT FILE NO.: 006/25
DATE: 20250626
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
EDITH WONG
Appellant
– and –
ELLIOTT DALE
Respondent
REASONS FOR DECISION
O’BRIEN, J.
Released: June 26, 2025