COURT FILE No. CV-10-409597

DATE: 20120525

SUPERIOR COURT OF JUSTICE
ONTARIO

BETWEEN: KATHLEEN COOKISH
(Responding Party/Applicant/Client)

AND: PAUL LEE ASSOCIATES PROFESSIONAL CORPORATION
(Moving Party/Respondent/Solicitors)

BEFORE: WHITAKER J.

HEARD: May 22, 2012

COUNSEL:
David Wilson for the Applicant (Client)
Tanya A. Pagliaroli for the Respondent (Solicitors)

ENDORSEMENT

What This Case is About

[ 1 ] This is an Application to set aside the Order of Justice Corrick of December 1, 2010, referring the account of the moving party solicitor to the Assessment Officer at Toronto for assessment.

[ 2 ] The Order was made on consent of the parties.

[ 3 ] Despite consent to the Order, the solicitor now takes the position that the Assessment Officer lacks jurisdiction to deal with the accounts dispute. The solicitor maintains that consent is no barrier to set aside the Order of Justice Corrick.

[ 4 ] I am not satisfied that the Order should be set aside. The Application is dismissed.

The Facts

[ 5 ] The facts are not in dispute.

[ 6 ] The client retained the solicitors in April 2008 to commence an action for denial of long term disability benefits. The client signed a retainer, suggested by the solicitor to be a “standard contingency fee agreement.”

[ 7 ] The matter was settled at mediation on March 3, 2009.

[ 8 ] An account was rendered on March 31, 2009.

[ 9 ] On February 3, 2010, the client through her present counsel advised the solicitor that she intended to seek an assessment of the account.

[ 10 ] On August 30, 2010, the client made an Application for an Order for the assessment of the account. At paragraph 2(A) of the Application, the client expressly states, “The client disputes the amount of the account and wishes to have same assessed.”

[ 11 ] There is no reference in the Application to the issues of the enforceability or validity of the retainer, nor is there any suggestion that there is an issue between the parties as to whether the retainer is a contingency agreement. Indeed, the solicitor in his factum confirms in paragraph 13 that the client did not dispute the validity of the retainer and did not seek a determination regarding its validity or enforceability.

[ 12 ] The solicitor consented to the Order for assessment on November 29, 2010.

[ 13 ] Justice Corrick granted the relief sought by the client and directed the assessment of the account. Justice Corrick also awarded the client costs of $5,650.00 on the Application. In her endorsement, Corrick J. indicates that she is sympathetic to the client’s submission that the motion “should not have been necessary.”

[ 14 ] The assessment was scheduled to proceed on November 16, 2011, but was adjourned on consent to March 22, 2012 because of a death in the solicitor’s family.

[ 15 ] Present counsel for the solicitor was retained just before the November 16, 2011 assessment hearing.

[ 16 ] On February 23, 2012, counsel for the solicitor raised for the first time the issue of the jurisdiction of the Assessment Officer and suggested the matter be traversed to a judge of this court.

[ 17 ] The client did not agree.

[ 18 ] This present Application date was set by the solicitor on March 7, 2010. The client did not agree to adjourn the assessment scheduled for March 22, 2012.

[ 19 ] The parties appeared before the Assessment Officer on March 22, 2010 and made submissions. The Assessment Officer adjourned the assessment.

The Law

[ 20 ] I accept the solicitor’s proposition that the Assessment Officer lacks inherent jurisdiction and may only act within the jurisdiction conferred by section 90 of the Courts of Justice Act . R.S.O. 1990, c. C.43. Further, I agree that a decision of the officer made without jurisdiction is a nullity and cannot stand. (See Park and Perrier , [2005] O.J. No. 3080 (Div. Ct.) and Ledroit v. Rooplall , [2011] O.J. No. 2022 .)

[ 21 ] I also accept the solicitor’s submission that the court has a discretion to set aside a consent Order where necessary in the interests of justice.

Analysis

[ 22 ] The only issue consistently raised by the client throughout these proceedings has been the appropriate quantum of the account. The client does not dispute the validity or enforceability of the retainer. The client does not dispute the terms of the retainer agreement. These additional areas of dispute are suggested by the solicitor but do not arise from any material filed or relied upon by the client.

[ 23 ] The parties may disagree as to whether the retainer is in fact a contingency agreement. Although I need not decide this issue, the retainer certainly has a series of provisions that appear to be inconsistent with a contingency agreement.

[ 24 ] The referral by Justice Corrick to the Assessment Officer is with respect to the only issue raised by the client – that being the quantum of the account in accordance with the application of the terms of the retainer. There are no issues of credibility to determine in the assessment. There is no issue as to the express terms of the retainer. The Assessment Officer need only determine the quantum.

[ 25 ] The interests of justice do not require the consent Order of Corrick J. be set aside.

[ 26 ] I heard the cost submissions of the parties in the event of their success.

[ 27 ] In accordance with the factors described in Rule 57 and particularly the reasonable expectations of the parties, the client is entitled to her costs inclusive of taxes and disbursements, fixed at $9,000.00.

[ 28 ] In light of my conclusions in this Application, the solicitor’s request for costs thrown away is dismissed.

Outcome

[ 29 ] Judgment accordingly.

WHITAKER J.

Released: