Superior Court of Justice - Ontario

Citation: Holmes v. Lerners LLP, 2012 ONSC 3140
Court File No.: 10-24577
Date: 2012-05-28

RE: Scott Paul Holmes et al., applicants

AND: Lerners LLP, respondent

BEFORE: Mr Justice Ramsay

COUNSEL:
Mr Marc A. Munro for the applicants
Ms Liza C. Sheard for the respondent

HEARD: 2012-05-28 at Hamilton

Endorsement

[ 1 ] The client applied successfully for an assessment of his lawyers’ bill ( 2012 ONSC 2566 ) and now seeks costs of the application, fixed at $47,000.

[ 2 ] A more realistic estimate of partial indemnity costs for this application would, in my view, have come to less than half that amount. The partial indemnity rate for the senior lawyer for the successful party was too high. A number of items were included that really amounted to the solicitors’ overhead. And nothing should be awarded for obtaining the order of Gordon J. on consent. Gordon J. did not order costs of that motion, nor did he reserve such costs to the application judge. Overall, the requested amount far exceeds what might reasonably have been in the contemplation of the parties.

[ 3 ] As it turns out, however, I decline to order costs of the application at all. The greatest part of the expense was caused by numerous and serious allegations of bad conduct said to have been committed by the lawyers, all of which I dismissed. Without these unreasonable allegations, the application could have proceeded very inexpensively.

[ 4 ] The lawyers ask that I make a direction under Rule 57.02 that the assessment proceed on the bills that were submitted to the client, not the reduced amounts awarded by Mr Ground. I am not sure that such a direction is contemplated by Rule 57.02, but for greater clarity I reiterate that I ordered the assessment of the solicitor’s bills, not a review of Mr Ground’s assessment. Mr Ground’s assessment is not relevant to the assessor’s function, let alone a starting point.

[ 5 ] Costs of the assessment are in the discretion of the assessor. I direct under s.2(4) of the Solicitors Act that if the assessor orders any costs of the assessment against the lawyers, any amount awarded shall be set off against amounts owing to the lawyers by the client.

J.A. Ramsay J.

Date: 2012-05-28