Zeppieri & Associates Solicitors v. Antonio Domingues Loureiro, 2012 ONSC 6348

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CV-11-00428129-0000
DATE: 20121109

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Zeppieri & Associates Solicitors – and – Antonio Domingues Loureiro Client

Gregory T.A. Gryguc , for the Solicitors
Self-represented

HEARD: November 5, 2012

E.M. Morgan, J.

REASONS FOR JUDGMENT

1The Solicitors move to oppose confirmation of a Certificate of Assessment issued by Assessment Officer G. Maitland-Carter on February 14, 2012.

2The Assessment Officer issued her initial set of Reasons on January 16, 2012, and reduced the Solicitors’ fees from $6,212.74 to $3,390.00. While she did not question the docketed time presented by the Solicitors, she concluded that on a quantum meruit basis the work done was valued at $3,000 plus HST.

3The Reasons of January 16, 2012 correctly set out the factors relevant to such an assessment as explained by the Court of Appeal in Cohen v. Kealey and Blaney (1985) CPC (2d) 211, and applied those factors to the Solicitors’ account. I find no error of principle in the Assessment Officer’s decision in this regard, and would not disturb the assessment of fees.

4Indeed, although a request to set aside the assessment of fees was included in the motion record filed by the Solicitors, it was not pursued with vigor at the hearing of the motion. Rather, the argument presented by the Solicitors focused on the award of costs of the assessment hearing to the Client. In her Supplementary Reasons dated February 14, 2012, the Assessment Officer awarded costs to the Client in the amount of $1,390.00.

5Mr. Gryguc, on behalf of the Solicitors, submits that in arriving at the costs award the Assessment Officer disregarded the evidence (or lack of evidence) actually submitted by the Client with respect to the costs he incurred. He contends that this approach represents an error in principle and a patent misapprehension of the evidence, thus meeting the test for review as set out by Gillese J. (as she then was) in Foster v. Kempster , 2000 CarswellOnt 5044 (Ont SC) . In keeping with that standard of review, Mr. Gryguc takes issue with the Assessment Officer’s Supplementary Reasons and raises “questions of principle and not mere questions of amount.” Foster , supra , at para. 6.

6The Assessment Officer started her Supplementary Reasons by stating: “With respect to interest and costs, I note that the client was successful, in that the solicitor’s account in the amount of $6,212.74 was assessed at $3,390.00.” Mr. Gryguc contends that this is not an accurate characterization of the result since the Client had brought the assessment proceedings seeking a complete refund of his retainer and the dismissal of the Solicitors’ bill in its entirety. Given that the Solicitors’ account was reduced to roughly half of that billed, and the Client had requested that the bill be entirely eliminated, Mr. Gryguc states in para. 17 of his factum that “the results were split”. Accordingly, he submits that “no costs should have been awarded in favour of the Client.”

7I agree with Mr. Gryguc on this point . A client that seeks a total refund of all fees paid to a solicitor has not exactly been successful if the solicitor’s bill is reduced but not eliminated. To contend that a lawyer’s bill should be reduced to zero is to take a rather extreme position, which would require a client to establish some very unusual circumstances. There is a qualitative and not just a quantitative difference between saying that a solicitor’s services were worthless and saying that a solicitor’s bill was too high. Here, the Client lost his principle argument. While the Solicitors’ account was reduced in its tally of hours, at best one can say that the results were mixed. The Solicitors were awarded something on account of their fees rather than all or nothing.

8Moreover, the Assessment Officer awarded costs of the hearing to the Client in the absence of any evidence that such costs were incurred. The Supplementary Reasons simply reiterated the reason for the reduction in the Solicitors’ fees contained in the original Reasons, and then asserted: “In my discretion, I find that the client is entitled to interest and costs, fixed in the sum of $1,300.00 (including tax), payable by the solicitor to the client.”

9In Fong v. Chan (1999), 1999 2052 (ON CA) , 46 OR (3d) 330, the Court of Appeal addressed the question of whether self-represented lawyers are entitled to costs, and in doing so stated the general principles to be applied to awards of costs to self-represented litigants. As Sharpe J.A. put it at para. 7 of Fong , the self-represented party is “entitled to claim costs on the basis that by devoting their person efforts to the litigation rather than other remunerative professional work, they incur an opportunity cost which is compensable.”

10In the present case, it was open to the Client to produce evidence of lost opportunity costs, but he did not. One can see from the summary nature of the conclusion reached by the Assessment Officer in her Supplementary Reasons that no such evidence was submitted to her.

11In addition, it was possible for the self-represented Client to request costs for some of his own time in the way a lawyer representing him might have claimed. In assessing such a request, however, courts have admonished that “one must be careful about what can be claimed”, lest the self-represented party be compensated for the time he would in any case have spent on the matter as client. Blustein v. Kronby , 2010 ONSC 1718 , at para. 19 . Here, there is no evidence that any time was spent by the Client that he would not have spent had he had a lawyer. As Sharpe JA. noted in Fong (at para. 26 ), “[t]he self-represented litigant should not recover costs for the time and effort that any litigant would have to devote to the case.”

12The record contains a one-page submission by the Client to the Assessment Officer regarding costs. That submission did nothing more than summarize the result of the assessment in reducing the Solicitors’ bill; it provided no evidence on which to base a costs award. In the face of this empty record, I find that the Assessment Officer’s award of costs to the Client was an error in principle and a misapprehension of the evidence before her.

13Having reduced but not eliminated the Solicitors’ account, and having received no evidence of any costs incurred or opportunity costs lost by the Client, the Assessment Officer should not have awarded any costs of the assessment hearing.

14I would therefore set aside the Report and Certificate of Assessment of Assessment Officer Maitland-Carter dated February 14, 2012. Since I would uphold the Assessment Officer’s determination that the Solicitors’ account be assessed at $3,390.00, and since the Client has already paid the Solicitors an initial retainer of $5,000.00, I order that the Solicitors reimburse the Client $1,610.00. There shall be no costs of this motion to either party.

E.M. Morgan J.