ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 08-1106
DATE: 2012-07-23
B E T W E E N:
Robert J. Hooper and Hooper Law Office
Robert Hooper, for the Plaintiffs
Plaintiffs
- and -
Leo William Sheehan
Self represented
Defendant
HEARD: June 29, 2012
MILANETTI J.
[ 1 ] Mr. Hooper brings this motion seeking an order opposing confirmation of the certificate of the Assessment Officer dated December 21, 2009, and setting same aside. The respondent Mr. Sheehan seeks to confirm the assessment.
[ 2 ] Mr. Hooper was the fifth lawyer retained to act on Mr. Sheehan’s behalf in connection with multiple motor vehicle accident and accident benefit claims.
[ 3 ] The parties attended a global mediation wherein almost all of Mr. Sheehan’s claims were settled on November 28, 2007. It dealt with two tort (1999 and 2003), and three accident benefit actions (1999, 2003, 2004).
[ 4 ] At the Mediation, Mr. Hooper had Mr. Sheehan sign quite specific and detailed written instructions.
[ 5 ] The written instructions clearly set out that all but Mr. Sheehan’s tort action dealing with the 2004 hit and run (against Allstate), and a suit against Mr. Sheehan’s former solicitors were settled this day.
[ 6 ] Mr. Sheehan was to receive $100,000 from Allstate for the accident benefit claims, with no reduction for legals. Fees (including the fees paid towards legals by the defendants) of $87,725 (inclusive of party and party costs, solicitor and client costs, GST and disbursements were charged against the $320,000 all inclusive sum offered by the tort carriers).
[ 7 ] More than one half of those explicit written instructions deal with costs – what they included, how a $28,000 charging order would be handled.
[ 8 ] Mr. Sheehan was aware of all of the above and exactly how much money he would take home when he signed the instructions saying that he understood the settlement and agreed to it voluntarily.
[ 9 ] In my view, this document is integral to an assessment of the ninth factor set out by the Court of Appeal in Cohen v. Kealey & Blaney (1998), 26 CPC (2d) 211 (Ont. C.A.) , “the expectations of the client as to the amount of the fee”.
[ 10 ] When Mr. Sheehan had the account assessed, Mr. Hooper provided a bill of costs (which included disbursements of $5,635.58) for the same amount referenced in the written instruction document aforementioned. Dockets were also provided.
[ 11 ] All of this was before the learned Assessment Officer. Additionally, a Retainer Agreement signed by Mr. Sheehan, when he attended at Mr. Hooper’s office on May 2, 2007 was in evidence.
[ 12 ] The agreement sets out Mr. Hooper’s hourly rate at $300; his staff at $100. It also provides for annual adjustments to these rates.
[ 13 ] The Retainer Agreement has a paragraph setting out that a bonus might be paid in addition to the hourly fee. The opening line to that (the fifth paragraph of the Retainer Agreement) has been stroked out and initialed by both lawyer and client. The balance of the paragraph; in my view, explains the bonus and thus should have been stroked out as well. It was not. Common sense says that if the bonus provision is eliminated, its constitution is as well.
[ 14 ] No cash retainer was required as that paragraph too was stroked out of the Agreement.
[ 15 ] What remains in the Agreement is the sixth paragraph which says that “at no time will the total bonus and hourly fees equal more than 20 percent of any settlements reached at trial, or through settlement or mediation”. In addition, “Mr. Hooper will retain any amount paid by the defendants towards my legal costs”.
[ 16 ] All of these documents were before the learned Assessment Officer and were relevant to his assignment.
[ 17 ] The learned Assessment Officer wrote an extensive decision which ultimately reduced the solicitor’s account to $55,164.08 inclusive of GST and disbursements.
[ 18 ] It is clear that an Assessment Officer is bound to consider the factors set out by our Court of Appeal in Cohen v. Kealey & Blaney, supra , when assessing a bill. These are:
The time expended by the solicitor;
The legal complexity of the matters dealt with;
The degree of responsibility assumed by the solicitor;
The monetary value of the matters in issue;
The importance of the matters to the client;
The degree of skill and competence demonstrated by the solicitor;
The results achieved;
The ability of the client to pay; and
The reasonable expectation of the client as to the amount of the fee.
[ 19 ] It is clear that the learned Officer was alive to that requirement as he lists the relevant factors to be considered in his decision.
[ 20 ] That being said, while he lists the factors, he spends little time in his 14 page decision addressing anything but the “time” set out in the dockets. This is, of course, but one of the factors to be considered at an assessment. The other eight factors appear to be mentioned only tangentally.
[ 21 ] I find this approach to be an error in principal.
[ 22 ] In addition to the aforementioned relevance of the written instructions obtained at the mediation (to the client’s expectations as to the amount of the fees), I find that this was quite complicated litigation involving numerous accidents, accident benefit claims, issues of liability and contributory negligence, and several defence insurers. It was thus quite legally complex.
[ 23 ] The result was a good one, it is clear to me that while Mr. Hooper was not the first lawyer on the file, he was the “closer”; the individual whose skill, expertise and approach managed to bring all of these matters together and achieve a significant financial settlement for the client. As indicated, the torts were settled for $320,000 (all in), and the accident benefits were settled for $100,000.
[ 24 ] It is clear to me that these matters would have been most important to the client given his misfortune of having several motor vehicle accidents; and being unemployed at the time. That being said, he had the ability to pay the account out of the settlement proceeds and this is what occurred.
[ 25 ] In my view, the results were good, and the resolution is reflective of a significant degree of skill and competence on the part of the plaintiff’s lawyer. Many experienced counsel preceded Mr. Hooper on the file; they were unable to resolve these multiple actions. Mr. Hooper was.
[ 26 ] As such, factors 2, 3, 4, 5, 6, 7, 8, and 9 of the Cohen factors listed support confirmation of the bill provided by Mr. Hooper to Mr. Sheehan.
[ 27 ] Moreover, a settlement, with a very precise breakdown of what would be charged and what the client would net was authorized by the client. While the respected Assessment Officer said (at page 8) that:
“The purpose of the mediation was to settle the client’s claims. It is not unreasonable for the client to wish to avoid dissention with his own lawyer which might impede settlement and merely increase the time expended and billed by the solicitor in accordance with the retainer agreement.”,
I saw no evidence to support this supposition on the Officer’s part. Mr. Sheehan made no
objection to the amount of the fees at the time he signed the instructions or at any time
thereafter.
[ 28 ] Moreover, as indicated, the written instructions were clear, explicit, and Mr. Sheehan said he understood them.
[ 29 ] This most specifically worded and signed document does, and should have relevance to the assessment of the reasonable expectation of the client as to the amount of the fee. Moreover, I do not find this document to be inconsistent with the Retainer Agreement itself.
[ 30 ] While the learned Officer dealt with the time dockets in great detail, given my own view of the cases in the context of all of the Cohen factors (particularly the explicit written instructions spelling out the fees to be charged and that the client understood and voluntarily signed), I would not adjust the final account rendered.
[ 31 ] Mr. Sheehan takes issue with both Mr. Hooper and the Assessment Officer’s interpretation of the thwarted accident benefit settlement. Mr. Sheehan clearly provided written instructions to settle the accident benefit claims for $100,000 at mediation. He was to retain that entire sum. Mr. Canning found that he ultimately changed his mind and thus Mr. Hooper did what he had to – he sent the money back to the insurer.
[ 32 ] I too accept this as the appropriate interpretation of events. Mr. Sheehan is unhappy as Allstate no longer seems interested in resolution on the same terms. He seeks to lay this at Mr. Hooper’s feet, both today and in a separate lawsuit against Mr. Hooper.
[ 33 ] Mr. Sheehan also takes issue with Mr. Hooper’s holding back and ultimate release of the $28,000 reflected in the charging order lodged by a former solicitor. Mr. Canning dealt with this as well, and I agree with his approach.
[ 34 ] I would thus grant an order setting aside the certificate of Assessment Officer Canning dated December 21, 2009. I would confirm the account originally tendered in the amount of $87,725.
[ 35 ] The parties may forward me 2 pages of written submissions as to costs and within 20 days of the receipt of this decision.
MILANETTI J.
Released: July 23, 2012
COURT FILE NO.: 08-1106
DATE: 2012-07-23
ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: Robert J. Hooper and Hooper Law Office Plaintiffs - and – Leo William Sheehan Defendant REASONS FOR JUDGMENT MILANETTI J. JAM:mg
Released: July 23, 2012