COURT FILE NO.: CV-12-444429

DATE: 2013-07-31

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: DIL MUHAMMAD, PHARMA CANADA INC., and 7302401 CANADA CORP., Applicants

AND:

HEYDARY, HAMILTON and JAVAD HEYDARY, Respondents

BEFORE: STEWART, J.

COUNSEL:
David Alderson and Robert Kalanda, for the Moving Parties/Respondents

Alfred Schorr, for the Responding Parties/Applicants

HEARD: July 22, 2013

ENDORSEMENT

[1] The Respondents to this Application (the “Solicitors”) move for an order that this Application, which seeks an assessment of accounts rendered by them to the Applicants (the “Clients”), be consolidated with an action commenced by them against the Clients and Alfred Schorr (“Schorr”) bearing Court File No. CV-12-447478 (the “Action”). Schorr is new counsel for the Clients who was engaged to represent their interests following termination of the retainer of the Solicitors.

[2] This motion is brought pursuant to Rule 6.01 of the Rules of Civil Procedure, which provides as follows:

6.01 (1) Where two or more proceedings are pending in the court and it appears to the court that,

(a) they have a question of law or fact in common;

(b) the relief claimed in them arises out of the same transaction or occurrence or series of transactions or occurrences; or

(c) for any other reason an order ought to be made under this rule,

the court may order that,

(d) the proceedings be consolidated, or heard at the same time or one immediately after the other; or

(e) any of the proceedings be,

(i) stayed until after the determination of any other of them, or

(ii) asserted by way of counterclaim in any other of them.

(2) In the order, the court may give such directions as are just to avoid unnecessary costs or delay and, for that purpose, the court may dispense with service of a notice of listing for trial and abridge the time for placing an action on the trial list.

[3] The Clients, responding to this motion, resist any such order and characterize it as an attempt by the Solicitors to circumvent their obligations to facilitate the assessment of their accounts, a process to which the Clients argue they are entitled to pursue as quickly and efficiently as possible.

The Proceedings

[4] The Clients’ Application was issued on January 19, 2012. The Solicitors’ Action was started on February 29, 2012, after the Notice of Application had been served upon them.

[5] Cross-examinations and examinations for discovery are not completed. The solicitors have examined Schorr as a witness on the Application and there are several refusals to answer questions arising therefrom based, in large part, upon the assertion of solicitor-client privilege and irrelevance. These refusals are the subject of a proposed motion to be heard by a Master.

[6] A motion under Rule 21 to strike out the Solicitors’ claim against Schorr from the Action has been decided recently in Schorr’s favour. It is unknown at this point whether there will be an appeal from that decision.

Discussion

[7] Rule 6.01 is designed to avoid a multiplicity of proceedings and to promote the expeditious and inexpensive determination of proceedings.

[8] In determining this motion it is not necessary for me to resolve any underlying substantive issues raised either by the Application or the Action. I am only being asked to deal with the question of whether the Clients at this time should be required to convert their Application into an action (or, alternatively, to require a trial of issues purportedly raised in the Application); and order it to be consolidated or tried together with or following the Action.

[9] In my view, the issues on the Application are comparatively simple. The Clients retained the Solicitors to provide them with advice and representation with respect to their dealings with and possible litigation against two financial institutions. A Retainer Agreement was executed which had a contingency feature. Accounts were rendered to the Clients and paid. A sizeable account was rendered just as the relationship between the parties was foundering. That account remains unpaid.

[10] In their application, the Clients request an order referring the series of accounts rendered to them by the Solicitors for assessment, and seek declarations with respect to the enforceability of the Retainer Agreement between them and the Solicitors.

[11] The issues raised on the Application therefore are those which pertain generally to whether paid or unpaid accounts should be referred for assessment pursuant to the Solicitors Act, R.S.O. 1990, c. S.15 and the applicable law governing same. In addition, the Application judge will be required to review the Retainer Agreement to determine, if he or she considers appropriate, whether it should be enforced on its terms as this determination will have implications for any assessment performed by the Assessment Officer.

[12] It does indeed appear that the issues raised on the Action are either the same or overlap with the Application. The Action is one for payment of outstanding accounts and enforcement of the Retainer Agreement. The only difference is the claim against Schorr which was advanced on a different basis, although damages are identical and dependent on the outcome of the claim against the Clients.

[13] However, I do not consider that the issues raised on the Application which relate generally to considerations that apply to the granting of an order referring accounts for assessment and the issue of the reasonableness or enforceability of the Retainer Agreement need be the subject of a four-to five- day trial, as counsel for the Solicitors estimate. This would be the practical result if the order sought by the Moving Parties were to be granted. In addition, considerable delay and expense would inevitably be incurred. At this stage, I am of the view that the issues raised in the Application can easily be fairly adjudicated upon more simply and effectively by means of a review of the evidence, cross-examinations and facta, supplemented by oral argument. This could easily be done in one day, perhaps less.

[14] The process surrounding the referring of a solicitor’s account for assessment and the assessment itself should be comparatively uncomplicated and should proceed expeditiously and with economy in the interests of all parties. These objectives would be thwarted if the Order sought herein by the Solicitors were to be granted.

[15] Counsel for the Clients requested in argument that the Action be stayed. No formal cross-motion seeking that relief was brought. Although there is authority in the Rules to grant a stay despite the absence of a Notice of Motion seeking that relief, in all of the circumstances I consider that it would be unfair and inappropriate to do so at this time. Of course, the Clients are at liberty to bring such a motion upon proper material and at such stage in the proceedings as they deem advisable.

Conclusion

[16] For these reasons the motion is dismissed.

Costs

[17] If the parties cannot agree on costs, brief written submissions on that subject may be delivered by the Clients within 15 days of the date of release of this decision and by the Solicitors within 10 days thereafter.

STEWART J.

Date: July 31, 2013