COURT FILE AND PARTIES

COURT FILE NO.: 64943/09
DATE: 2012/03/16
SUPERIOR COURT OF JUSTICE – ONTARIO

RE: ALFRED A. MAMO & ASSOCIATES and ALFRED A. MAMO LAW PROFESSIONAL CORPORATION (Solicitor/Moving Party) –and- NYNNA SOBESKI, also known as NYNNA IONSON (Client/ Responding Party)

BEFORE: JUSTICE W. U. TAUSENDFREUND

COUNSEL:
C. Scott Ritchie for the Solicitor/Moving Party

Mark M. Orkin and Robert Schipper for the Client, Nynna Sobeski

HEARD: March 14, 2012

E N D O R S E M E N T

[ 1 ] The solicitor, (“Mamo”) has moved for an order staying any further proceedings before the assessment officer of the assessment of Mamo’s account, on the basis that such further proceedings should be heard by a judge of the Superior Court of Justice. This relief is sought on the basis that determinations on issues of law are required in this assessment that are beyond the jurisdiction of an assessment officer.

[ 2 ] The respondent client, Nynna Sobeski, opposes the relief sought on the basis that the assessment officer has jurisdiction to assess Mamo’s accounts, that this procedural objection was not raised in a timely manner and that this would cause her further delay and therefore prejudice.

[ 3 ] The respondent was the applicant in family law proceedings that originated in the Superior Court of Justice in Woodstock, Ontario on May 3, 2004. The respondent in that proceeding was Raymond Sobeski, the then husband of this respondent client. Mamo was at all times her acting counsel.

[ 4 ] The documents in these family law proceedings indicate that:

(a) Ray Sobeski was only prepared to marry the respondent client on the condition that she sign a marriage contract. When the marriage contract was presented to her shortly after the marriage ceremony, she refused to sign. At this point, her now husband declared that the marriage was at an end. He maintained this position throughout the course of the family law proceedings. At no time before nor subsequent to the marriage ceremony did the parties cohabit. The parties took diametrically opposed positions as to the nature and quality of their relationship after their marriage.

(b) Four years after the marriage ceremony, Ray Sobeski became the holder of the sole winning ticket on a $30 million lottery.

(c) The primary objective of the respondent client in the family law proceedings was to effect a reconciliation and failing this, to establish at trial that her husband was physically and emotionally abusive and a liar.

(d) During the course of the family law proceedings and acting on information received from the respondent client and from the investigation, Mamo purportedly stated in an unprotected public forum that Ray Sobeski had perjured himself. Based on that statement, Ray Sobeski commenced an action for defamation. That action remains unresolved.

[ 5 ] This matrimonial litigation settled without trial on January 6, 2009. Mamo then delivered a bill for his legal fees.

[ 6 ] On May 1, 2009, this respondent obtained an order on requisition to assess Mamo’s bill.

[ 7 ] The assessment hearing began at London on October 20, 2011 before the assessment officer.

[ 8 ] Early into this hearing, the Minutes of Settlement and its confidentiality clause became an issue. All counsel agreed that the terms of the Minutes of Settlement were relevant and that the assessment should be adjourned to obtain an order of this court to maintain the confidentiality of the document. That order was obtained on March 14 th , 2012. The assessment is currently scheduled to continue on May 7, 2012.

[ 9 ] Counsel for Mamo states that on the continued assessment he intends to call evidence on matters that are beyond the jurisdiction of an assessment officer. This evidence would include the allegation that Ray Sobeski improperly importuned this respondent to assess Mamo’s account, although she had previously agreed to all of its particulars and that Ray Sobeski was motivated in that regard by the unresolved defamation claim he had brought against Mamo.

Analysis

[ 10 ] Section 3 of the Solicitors 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,

(a) by the client, for the delivery and assessment of the solicitor’s bill;

(b) by the client, for the assessment of a bill already delivered, within one month from its delivery;

(c) by the solicitor, for the assessment of a bill already delivered, at any time after the expiration of one month from its delivery, if no order for its assessment has been previously made.

[ 11 ] Master Sandler in Re Solicitors, 1978 CarswellOnt 409 at para. 7 provided the following description of an assessment officer’s jurisdiction:

… The [Assessment Officer] is to decide the issue of quantum and issues of accounting … and also questions of carelessness, impropriety and negligence in the conduct of the business to which the bill relates …. He is not to decide whether a contract, or retainer exists between the solicitor and client, nor decide the terms thereof, except terms relating to quantum.

[ 12 ] Linden J. in Whiteacre v. McGregor , 1980 CarswellOnt 454 stated at para. 9 that: “a praecipe order before an assessment officer is meant to be a speedy and inexpensive procedure available under the Solicitors Act and only available absent a bona fide dispute about the retainer.

[ 13 ] Perell J. in Middlebrook & Co. LLP v. McCormack , 2011 CarswellOnt 192 at paras. 6 , 7 and 9 addressed the jurisdiction of the assessment officer under s. 3 of the Solicitors Act :

The assessment officer’s jurisdiction is limited to determining the quantum of the lawyer’s account, and where the lawyer’s retainer is genuinely disputed, the assessment officer does not have jurisdiction to resolve the dispute, which must be resolved by action or by application.

A dispute about the lawyer’s retainer includes not only the question of whether the retainer exists … but also the question of the terms or scope of that retainer. …

The assessment officer does not have jurisdiction where there are “special circumstances”, which are questions that require a decision from the court by action or application….

[ 14 ] Counsel for the respondent rely on Price v. Sonsini, 2002 ONCA 41996 . As Mamo brings his objection after the start of the assessment in which he had initially willingly participated, counsel state that his objection should for that reason not be granted. The Court of Appeal in Price v. Sonsini set aside the order of the Motion’s Judge quashing the Registrar’s order for assessment and the proceedings taken pursuant to that order. The Court of Appeal found that the respondent had raised no objection to the order for assessment for more than five years after it was granted, after he had participated in a lengthy assessment hearing and after he had suffered an adverse result. In my view, Price v. Sonsini is to be distinguished from the facts before me where the assessment had proceeded but for 1.5 hours before it was adjourned. Further proceedings are scheduled to continue May 7, 2012.

[ 15 ] Counsel for the respondent further state that Mamo’s claim for Champarty may be barred pursuant to the Limitations Act , S.O. 2002, c. 24 . However, absent discoverability issues and assuming a two-year limitation period, I note the following passage from the decision of Denning L.J. in Henriksens Rederi A/AS v. Rolimpex , [1973] All E.R. 589 at 593:

In point of principle, when applying the law of limitation, a distinction must be drawn between a matter which is in the nature of a defence and one which is in the nature of a cross-claim. When a defendant is sued, he can raise any matter which is properly in the nature of a defence, without fear of being met by a period of limitation. No defence, properly so-called, is subject to a time – bar.

This principle was applied in Pierce v. Canada Trustco (2005), 2005 ONCA 15706 , 254 D.L.R. (4 th ) 79 (Ont. C.A.) .

[ 16 ] The Champarty issue as represented by counsel for Mamo would be advanced as a defence to the challenge by the respondent to the account submitted to her by Mamo. Accordingly, the limitation period would not appear to be a bar to Mamo advancing the allegation of Champarty.

[ 17 ] In my view, the Champarty Act , a common law doctrine of Maintenance and the common law tort of intentional interference with contractual relation, all of which Mamo intends to advance, may have a meaningful and influential part to play in the outcome of this assessment. Mamo should have the opportunity to have this assessment heard fully and on all of its merits which, in my view, is the dominant policy thrust of our system of Justice: Madrid v. Ivanhoe Cambridge Inc., 2010 ONSC 2235 at para. 13 .

[ 18 ] The respondent states that she will be prejudiced by the expected delay of the resolution of this entire matter. Delay she may well experience based on this ruling. However, any such delay can be addressed, if warranted, by costs and/or interest.

[ 19 ] An order will go that this assessment before the assessment officer is stayed, provided within 60 days an action or application is brought by Mamo for a determination of the adequacy of the account submitted by Mamo to the respondent, including any related or ancillary issues.

[ 20 ] If required, I may be spoken to as to costs.

“ Justice W. U. Tausendfreund”

Justice W. U. Tausendfreund

DATE: March 16, 2012