SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CV-11-418699-000
DATE: 20120719

RE: SUZAN E. FRASER
Solicitor/Responding Party

• and -

ATTORNEY GENERAL FOR ONTARIO
3 rd Party Payer/Moving Party

BEFORE: Justice S. M. Stevenson

COUNSEL:
Solicitor/Responding Party Appearing in Person
Vanessa Glasser , for the 3 rd Party Payer/Moving Party

DATE HEARD: June 11, 2012

E N D O R S E M E N T

Background

[ 1 ] Suzan Fraser (“Fraser”) was appointed by the Ontario Review Board (the “ORB”) on December 16, 2009 to represent Russell Maurice Johnson (“Johnson”) at a disposition hearing that was heard over six days in 2010. Fraser rendered accounts with respect to the representation of Johnson. The issue of who is responsible for payment of those accounts has been ongoing.

[ 2 ] Fraser applied to the Registrar of the court for an assessment of her accounts and an assessment hearing took place. On January 27, 2012, the assessment officer held that $32,205.24, including interest was due to Fraser from the Attorney General.

[ 3 ] The Attorney General brings this motion under Rule 54.09 of the Rules of Civil Procedure , R.R.O. 1990, Reg. 194 to oppose the confirmation of the Report and Certificate of Assessment of the assessment officer. The Attorney General contends that the retainer is disputed and additionally, the assessment officer did not have jurisdiction to assess Fraser’s account under either the Criminal Code , R.S.C. 1985, c. C-46 or the Solicitors Act , R.S.O. 1990, c. S.15. The Attorney General submits that because Johnson was granted a Legal Aid certificate, the provisions of the Criminal Code do not apply and there is no right to have the payment reviewed by a Registrar of the court. There was also no right to have Legal Aid payments reviewed by an assessment officer under the Solicitors Act .

[ 4 ] In the alternative, the Attorney General submits that the assessment officer erred in not giving appropriate weight to the relevant factors and by considering irrelevant factors. It argues that as a result, the quantum assessed to Fraser with respect to her accounts is in gross excess of what is considered fair and reasonable for the services provided.

Issues

[ 5 ] The following are the issues for determination:

i) Did the assessment officer have jurisdiction to assess Fraser’s accounts?

ii) If so, did the assessment officer err in not giving appropriate weight to the relevant factors and did she consider irrelevant factors with the result that the quantum assessed to Fraser with respect to her accounts was grossly excessive?

Rule 54.09(3) and (5) of the Rules of Civil Procedure

[ 6 ] Rule 54.09(3) and (5) state the following:

Notice of Motion to Oppose Confirmation

(3) A notice of motion to oppose confirmation of a report shall,

(a) set the grounds for opposing confirmation;

(b) be served within fifteen days after a copy of the report, with proof of service on every party who appeared on the reference, has been filed in the office in which the proceeding was commenced; and

(c) name the first available hearing date that is at least three days after service of the notice of motion.

Disposition of Motion

(5) A judge hearing a motion under subrule (2) or (4) may require the referee to give reasons for his or her findings and conclusions and may confirm the report in whole or in part or make such other order as is just.

i) Did the assessment officer have jurisdiction to assess Fraser’s accounts?

[ 7 ] Fraser was appointed by the ORB to represent Johnson pursuant to s. 672.5(8) of the Criminal Code . Section 672.5(8.1) of the Criminal Code states that: “Where counsel is assigned pursuant to subsection (8) and legal aid is not granted to the accused pursuant to a provincial legal aid program, the fees and disbursements of counsel shall be paid by the Attorney General to the extent that the accused is unable to pay them.”

[ 8 ] It is Fraser’s position that the fees and disbursements owing to her are to be paid by the Attorney General pursuant to s. 672.5(8.1) . As these fees have not been paid to Fraser, pursuant to s. 672.5 (8.2), Fraser moved for an assessment. Section 672.5(8.2) states that: “Where counsel and the Attorney General cannot agree on the fees or disbursements of counsel, either can apply to the registrar of the court to have the registrar tax the disputed fees and disbursements.”

[ 9 ] The Attorney General contends that the assessment officer did not have the jurisdiction to conduct the assessment hearing based on the fact that Fraser’s client, Johnson, had previously received a Legal Aid certificate and Fraser was paid through Legal Aid Ontario. The Attorney General argues that it was therefore not responsible to pay Fraser’s fees. Counsel for the Attorney General raised the issue of the Legal Aid certificate and asked for a determination at the commencement of the assessment hearing. At the hearing, the assessment officer stated that she did not have the jurisdiction to determine the legal aid issue as her mandate was to conduct the assessment hearing based on the requisition from the court. She further stated to counsel that he should have raised this issue earlier by proceeding to motions court to obtain a determination of the legal aid issue. She indicated that the onus was on counsel for the Attorney General and not on her to raise that issue.

[ 10 ] At the hearing, counsel for the Attorney General indicated that he was not abandoning the argument and requested that the matter be adjourned so that he could proceed to court to obtain a ruling. The assessment officer refused that request as she indicated that counsel for the Attorney General had plenty of time to raise these concerns to the proper authority prior to the assessment hearing. She also indicated that she was going to proceed with the assessment hearing as she had a Registrar’s order for the assessment under the Solicitors Act and that was her authority. She stated that counsel for the Attorney General could raise his objection on appeal.

Disposition

[ 11 ] For reasons below, I find that the assessment officer did not have jurisdiction to proceed with the assessment hearing.

[ 12 ] The issue of the retainer was clearly a significant issue. A number of documents were produced for this motion and filed by both parties. In particular, in the Solicitor’s Brief of Documents, there are a number of letters from Fraser and Legal Aid Ontario where it is clear that Fraser is taking the position that Johnson was not eligible for legal aid due to his modest pension, and that she would be reserving her right to bill at private rates if legal aid had in fact been improperly granted to Johnson. Fraser made several efforts to explain to different legal aid officials that the case was in fact a Protocol case and that she should be paid by the Ministry of the Attorney General. At one point, Fraser writes that she has been advised by a Legal Aid official that this was in fact a Protocol case, meaning her fees were to be paid by the Attorney General. However, it appears that this issue was never resolved between Fraser and Legal Aid Ontario.

[ 13 ] Fraser was paid for a portion of her services through Legal Aid Ontario. The assessment officer took that amount into consideration when calculating the amount still owing to Fraser. However, Fraser maintained all along that her client was not entitled to legal aid and that she was seeking to be paid in accordance with her hourly rate of $325 and to be paid by the Attorney General.

[ 14 ] It is unfortunate that neither the Attorney General nor Fraser took the steps to commence an application before this Court in order to determine whether Fraser was to be paid by the Ministry of the Attorney General or by Legal Aid Ontario. The retainer was clearly a contentious issue yet neither party took the steps to resolve this issue. The assessment hearing proceeded despite the protests of the Attorney General at the commencement of the assessment hearing, and now the matter is further delayed by this motion.

[ 15 ] The requisition to the Court dated January 18, 2011 and signed by Fraser, states that she requires an order with respect to the assessment of various accounts, copies of which she attaches pursuant to s. 3 (c) of the Solicitors Act . The requisition further states that the retainer is not disputed and there are no special circumstances. However, when this requisition was completed, the Attorney General was taking the position that they had no retainer with Fraser and Fraser was taking the position that under the provisions of s. 672(8.1) of the Criminal Code , the Attorney General was responsible for payment of her accounts. It must have been clear to both parties that the retainer was in dispute.

[ 16 ] The order referring the accounts of Fraser to an assessment officer, dated January 21, 2011, states that it was made pursuant to an application under the Solicitors Act . As such, the assessment officer correctly stated that her jurisdiction was to assess the accounts in accordance with the order under the Solicitors Act , which was made on January 21, 2011. However, once the issue of the retainer being in dispute was raised by counsel for the Attorney General, I find that it was incumbent upon the assessment officer to adjourn the assessment hearing to allow counsel to raise this issue on an application to the court. It is clear under s. 3 of the Solicitors Act that an order for an assessment may be obtained on requisition from a local registrar of the Superior Court of Justice “where the retainer of the solicitor is not disputed and there are no special circumstances”. In this case the retainer was clearly in dispute.

[ 17 ] Fraser raised the issue that counsel for the Attorney General, during the course of the assessment hearing, stated that the legal aid issue was “off the table”. Counsel stated that it was completely irrelevant to anything the assessment officer had to decide. However, counsel for the Attorney General stated earlier in the assessment hearing, when raising the retainer issue with respect to legal aid, that he was not abandoning that argument. The fact that as the assessment hearing proceeded he made the comment that legal aid was “off the table” did not mean that he was abandoning that position. Because the assessment officer stated that she did not have the jurisdiction to determine the legal aid issue, I accept that counsel for the Attorney General proceeded as instructed by the assessment officer by only addressing the appropriate quantum of Fraser’s accounts and by not addressing the legal aid issue.

[ 18 ] The decision of Park v. Perrier , [2005] O.J. No. 3080 (Div Ct.) is of great assistance, as the Divisional Court dealt with the issue of a disputed retainer in similar circumstances. As stated by the Court in Park at para. 14: “If there is a dispute with respect to the solicitor's retainer, the assessment officer has no jurisdiction to proceed. Rather, the assessment officer's sole jurisdiction is to determine the appropriate quantum of the solicitor's account. A dispute about the solicitor’s retainer can only be resolved through the ordinary remedy of civil litigation, rather than through the assessment process: Whiteacre v. McGregor (1980), 19 C.P.C. 279 (Ont. Div. Ct.) ”.

[ 19 ] The Court in Park went on to discuss, at para. 16, that there are two qualifications to the general principle that an assessment officer has no jurisdiction to determine the terms of a retainer between the solicitor and client. Only a bona fide dispute as to the retainer will oust the jurisdiction of the assessment officer and if the dispute is only about quantum, this is within the jurisdiction of the assessment officer.

[ 20 ] Additionally, the dispute with respect to the retainer must be a legitimate one and the assessment officer may make a limited inquiry to determine if that test is met. If the evidence with respect to the disputed retainer would survive a Rule 20 summary judgment test, then it is a bona fide dispute as to the retainer. See Park , supra , at para. 23.

[ 21 ] I find in this case that there was not only a dispute with respect to quantum, but there was a genuine, bona fide dispute with respect to the retainer. More evidence is required in order to properly determine the issue of whether or not Johnson was in receipt of a Legal Aid certificate or whether Fraser is correct in saying that the Ministry of the Attorney General is responsible for payment of her accounts. Only once the determination of the retainer has been made can the payment of the accounts be dealt with properly.

[ 22 ] Fraser also raises the issue that the Attorney General took no steps to set aside the confirmation and provided no explanation regarding its conduct relating to the confirmation of the certificate. In addition, Fraser submits that the Attorney General never appealed or took any steps to set aside the order for assessment dated January 21, 2011. Nor did it raise the issue at a preliminary appointment before an assessment officer. Fraser states that the Attorney General raised the issue of jurisdiction of the assessment officer and the retainer for the first time at the assessment held on August 28, 2011.

[ 23 ] While the delay to Fraser in having the issue of payment of her accounts resolved is no doubt frustrating, I find that it is irrelevant that the jurisdictional issue and the retainer were not raised by either Fraser or the Attorney General prior to the assessment hearing. In the Park decision, the jurisdictional issue was not raised by either party at the assessment hearing or at the appeal from the assessment hearing. In fact, the issue was first raised by the Divisional Court at the argument of the appeal and both parties were provided with an opportunity to review the law and respond. As stated by Molloy J. in Park , at para. 25:" The failure of either party to raise this issue below cannot give jurisdiction to the assessment officer to make the decision he did. He either had jurisdiction or he did not. In this case, he did not. A decision made without jurisdiction is a nullity and cannot stand”.

[ 24 ] I therefore find that the Report and Certificate of Assessment of assessment officer Chiba dated January 27, 2012 must be set aside. Having found that the assessment officer did not have jurisdiction to proceed with the assessment hearing, I do not need to determine the second issue set out above.

[ 25 ] Both parties made submissions on costs at the hearing of the motion. As I find that both parties knew there was an issue with respect to the retainer and both had the ability to commence an application to determine that issue prior to the assessment hearing, I am not prepared to order costs on this motion.

Order

[ 26 ] I make the following order:

i) the Report and Certificate of Assessment of officer Chiba dated January 27, 2012 is set aside; and

ii) there shall be no order as to costs.

Stevenson J.

DATE: July 19, 2012