ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-09-00372586
DATE: 20120425
BETWEEN:
YOLANDA GIRAO Client – Moving party – and – BOGOROCH & ASSOCIATES Solicitors - Responding Party
Moving Party, representing herself
Robert G. Schipper, for Bogoroch & Associates, the Responding Party
HEARD: April 19, 2012
ENDORSEMENT
C. BROWN J:
[ 1 ] The moving party, Ms. Girao, moves to oppose confirmation of the Report and Certificate of Assessment of the Assessment Officer, Charlotte Chiba dated September 7, 2011. She seeks to have all of the documentation sent back to the Assessment Officer for an accounting.
[ 2 ] The responding party, solicitors Bogoroch & Associates, oppose the motion and seek confirmation of the Report under Rule 54.09 of the Rules.
[ 3 ] The solicitor/client assessment concerned the legal accounts of the solicitor retained by the client in September 2002 to represent her with respect to an accident benefits (AB) claim and tort action arising from injuries sustained in a motor vehicle accident on June 19, 2002. The accounts totaled $147,553.94, inclusive of fees, disbursements, GST and HST.
[ 4 ] The assessment proceeded over nine days from February 22, 2010 to August 9, 2011, with the oral decision rendered on August 12, 2011 in the amount of $116,000, inclusive of fees, disbursements, GST and HST, plus prejudgment interest of $6,681 and costs of $10,000.
[ 5 ] Ms. Girao submits that the decision of the Assessment Officer should not be confirmed inter alia, because:
There were errors and discrepancies in the dockets and amounts not taken into consideration by the Assessment Officer which Ms. Girao reviewed in detail at the motion;
There were fees and disbursements invoiced for periods after the lawyers were removed from the record;
Ms. Girao was not permitted to present her case before the Assessment Officer and the Assessment Officer and Mr. Schipper, counsel for the solicitors, treated her badly.
[ 6 ] Ms. Girao presented her motion, which is in the nature of an appeal, with the assistance of an interpreter, over a two hour period and her Reply over a 35 minute period. She produced two affidavits and four volumes of documents. She did not produce transcripts of the assessment hearing, stating that she could not afford to do so. I have considered Ms. Girao’s productions which were before the Assessment Officer, but not additional materials and documents which she sought to introduce, but which were not before the Assessment Officer.
[ 7 ] Mr. Schipper, for the solicitors, argues that Ms. Girao has not established that there was any error made on the part of the Assessment Officer which would permit this Court to interfere with the decision of the Assessment Officer. He submits that the Assessment Officer took into account the docket entries and charges that Ms. Girao contests, including the discrepancies pointed out by Ms. Girao, addressed the issue of amounts paid by the accident benefits insurer and the fees and disbursements invoiced, which Ms. Girao argued were charged for periods after the Order removing the solicitors from record, and reduced the original accounts accordingly from $147,553.94 to $116,000, inclusive of fees, disbursements and taxes.
[ 8 ] With respect to the issue of not being permitted to present her case, Mr. Schipper submits that Ms. Girao produced four large volumes of exhibits, a comprehensive assessment brief summary of over 100 pages, single-spaced, all communications between solicitors and client and communications with other parties, and the medical and accident benefits reports. Further, she cross-examined the solicitor’s witnesses.
[ 9 ] There is no transcript of the proceeding before this court, and I am therefore not able to review the subject proceedings, in light of the parties’ submissions.
The Law and Analysis:
[ 10 ] The Court will not interfere with the decision of the Assessment Officer unless there has been an error in principle, the decision of the assessment officer is so unreasonable as to suggest an error in principle or the decision is clearly wrong in the amount allowed: Re: Knipfel, 1982 3319 (ON CA), [1982] 133 DLR (3d) 662 at p. 665 (Ont. C.A.); Bhatnager v. Canada, (M.E.I.), 1991 41 (SCC), [1991] 3 S.C.R. 317 at 318 (S.C.C.); Jordan v. McKenzie (1987), 26 C.P.C. (2d) 193 (HCJ) aff’d.
[ 11 ] Pursuant to Rule 54.09(5) of the Rules of Civil Procedure, a judge hearing a motion to oppose confirmation may confirm the report in whole or part, or make such other order as is just. The motion is in the nature of an appeal and not a new trial or a rehearing. The judge hearing the motion should not retry the matter or interfere with the decision unless the reasons demonstrate some error in principle, there has been some absence or excess of jurisdiction or some patent misapprehension of the evidence. Where the judge may have a difference of opinion regarding the quantum of costs allowed, this is not sufficient to interfere with the decision of the Assessment Officer. The evidence and documentation to be considered is that which was before the Assessment Officer at the time of the hearing.
[ 12 ] The factors to be applied for assessing a solicitor’s account are set forth in Cohen v. Kealey & Blaney (1985), 26 C.P.C. (2d) 211, (C.A.)
[ 13 ] I have reviewed the voluminous materials filed by the parties on this motion and considered the oral decision of the Assessment Officer which is 55 pages in length. The Assessment Officer has thoroughly reviewed and analyzed the evidence before her and considered all of the requisite factors set forth in Cohen v. Kealey and Blaney, supra in rendering her decision. Ms. Girao raised numerous fees and billings which she contested as to quantum. I am satisfied that based on all of the evidence before the Assessment Officer, most of which was also before me, and all of the evidence given over the nine day hearing, there has been no error in principle nor any patent misapprehension of the evidence.
[ 14 ] While there is no transcript of the proceedings before me for review, the lengthy decision of the Assessment Officer does review the evidence presented in depth. She did take the issue regarding the discrepancies in bills and fees docketed and invoice raised by Mr. Girao into account. The accounts were reduced accordingly. I do not find there to be any error in principle in the Assessor’s reasons nor any absence or excess of jurisdiction, nor patent misrepresentation of the evidence. I do not find the award to be unsatisfactory on all of the evidence. There is no basis on which to disturb the Assessment Officer’s decision.
[ 15 ] I dismiss Ms. Girao’s motion and confirm the Report and Certificate of the Assessment Officer, Charlotte Chiba, dated September 7, 2011.
Costs:
[ 16 ] Mr. Schipper seeks his partial indemnity costs of this motion in the amount of $6,841.45, inclusive of fees, disbursements and HST. I have considered the circumstances of this case, as well as the factors set forth at Rule 57.01 in exercising my discretion regarding costs. While, in the normal course, costs are intended to compensate the successful party, in the circumstances of this case, considering the financial circumstances of the plaintiff and the legal fees already owing by her, I make no award for costs of this motion.
C. J. BROWN J.
Released: April 25, 2012