Superior Court of Justice - Ontario

Court File No.: CV-11-00432312-0000
Date: 20130731

RE: NICHOLAS C. TIBOLLO PROFESSIONAL CORPORATION, Responding Party

AND:

2207544 ONTARIO INC., ERNEST ANDERSON and HALA ANDERSON, Moving Party

BEFORE: Michael G. Quigley J.

COUNSEL:
Hala Anderson a.k.a. Hala Hanoun, self-represented

Lori Marzinotto, for the Respondent

HEARD: July 29, 2013

ENDORSEMENT

[1] The moving party, Hala Hanoun Anderson, formerly Hala Anderson, asks this court to set aside the Order for Assessment dated August 5, 2011, and the subsequent costs order given at an Assessment Hearing by Assessment Officer Mr. T. Fernandez on September 4, 2012.

[2] Ms. Hanoun Anderson does so on the basis that she did not retain Mr. Tibollo or his firm, or sign a retainer letter or otherwise consent to having him represent her or her Corporation 2207544 Ontario Inc. (“2207544”) in any legal matters. She says she should not have been part of the Assessment process since she did not retain him. She claims that she did not request any assistance from him to deal with legal issues that involved her or 2207544.

[3] Ms. Hanoun Anderson acknowledges that she was the incorporator, sole director, and sole shareholder of 2207544, but she says that any legal work that was performed by Mr. Tibolo or his firm was performed on the instructions of, and after being retained by her former husband, Ernest Anderson, from whom she separated in 1998. They are now divorced.

[4] Neither does she dispute that 2207544 was the plaintiff in an action commenced in this court under Court File No. CV-09-394148 (the “Action”) or that Ms. Hanoun Anderson was named, under her married name of Anderson, as a Defendant by Counterclaim in that same Action as was 2207544 and Ernest Anderson.

[5] That Action was commenced on their behalf by a solicitor, Jeffrey Goldman. He delivered a defence to the counterclaim on behalf of Hala Anderson, as she then was, Ernest Anderson and 2207544. After that Action was commenced, Mr. Goldman stopped practicing law and the conduct of that Action was taken over in early August of 2010 by Mr. Tibollo and his firm, Nicholas C. Tibollo Professional Corporation.

[6] On or about August 18, 2010, Mr. Tibollo sent Engagement Letters to Ms. Hanoun Anderson, to Ernest Anderson and to 2207544, mailed to the address that was noted on their driver’s license and the client information forms that they had filled out at the time that they retained him and his firm to represent them. That address is 2038 Lorelei Road in the City of Mississauga. Notwithstanding that Ms. Hanoun Anderson insists that she has been separated and divorced from Mr. Ernest Anderson since 1998, the driver’s license information provided to Mr. Tibollo in 2010 still showed that both of them reside at the Lorelei Road address in Mississauga at that time.

[7] Stated shortly, the solicitor client relationship suffered irreparable breakdown in this case. After several years of effort in the Action on behalf of 2207544, Ernest Anderson, and Hala Anderson Hanoun, all of which are named parties and Defendants by Counterclaim to that Action, Mr. Tibollo and his firm got off the record. They were granted an order by Master Brott on August 2, 2011 removing them as solicitors of record in the Action that had been commenced by 2207544. The principal reason for their removal was that none of the three defendants to this Assessment had paid the fees and disbursements charged by the solicitor for his services, notwithstanding repeated promises that never materialized.

[8] The very thorough responding Motion Record put together by Mr. Tibollo attests to the numerous instances where amounts were promised but not delivered. One of the exhibits consists of over 100 emails that evidence the financial runaround of Mr. Anderson avoiding his obligations to send payment to Mr. Tibollo for the services that were being provided by his firm. After being retained, Ernest Anderson repeatedly told the solicitor that his firm's accounts would be paid, that the funds were being wired, and then couriered or otherwise delivered to them. These assurances from one of the three clients named in the Action all turned out to be false, pure and simple. The only cheque that ever cleared the solicitor's account was the initial $5,000. An additional $3,000 may have been paid but no further payments can be confirmed to have been made despite promises that the funds were being wired and couriered from Panama and the Bahamas, places where Ernest Anderson and Ms. Hanoun Anderson claimed to have had deposits and business interests.

[9] It was also instrumental in the decision to remove themselves as solicitors of record, however, that Mr. Tibollo and his firm learned at that time from another law firm that Ms. Hanoun Anderson personally intercepted settlement funds in one of the matters they had worked on. She re-directed those monies to herself and to her company, 2207544, rather than having those funds paid to Mr. Tibollo and his firm, at least in part satisfaction of the solicitor’s growing accounts that were then due and owing.

[10] Even more surprisingly, given her present claim that she never retained the solicitor, was his affidavit evidence confirming that once he and his firm were removed from the record, Ms. Hanoun Anderson attended at his office and attempted to persuade him that he should continue to act on her matters. She also left a voice message on his answering machine on August 22, 2011 providing evidence of that fact. It stated as follows:

Good morning Nicholas. This is Hala Anderson calling. I seen [sic] the email go back and forth. Uh… I believe today is our last chance for appeal. I'm not sure how the system works. I understand that you are no longer my lawyer or our lawyer representing this case. Uh… Mr. Stone is not our… will not be taking this case. He does not think it's worthy. Uh… So I'm not sure exactly at this point in time who to turn to. Uh… I’m [sic] just wanted to pass this idea by you and see if you are interested in… either helping us, helping you, helping all of us, who are involved. Um… Would you please kindly give me a call back if you don't mind 416-998-0305 and it's Hala Anderson. Thanks. Bye now. (my emphasis)

On that same day, Ms. Hanoun Anderson sent an email to the solicitor in which she confirmed, amongst other things, that Mr. Tibollo and his firm were no longer "their lawyer”, but nevertheless invited Mr. Tibollo and his firm to act for them again. (my emphasis).

[11] Finally, on August 5, 2011, Mr. Tibollo’s firm obtained an Order on Requisition for the Assessment of the accounts which his firm had rendered to these three clients. He sought to collect on his accounts using that procedure since he believed, on the evidence that he had in his file, that there was not and could not be any genuine dispute as to the existence of the retainer. Mr. Tibollo took that procedure in the full knowledge that if there was any dispute about the retainer, such a dispute would necessitate the commencement of a collection action: see Paoletti v. Gibson, [2009] O.J. No. 301 (C.A.) at para.27. The Order on Requisition for the Assessment was served on Ernest Anderson and Ms. Hanoun Anderson in their own capacities and on behalf of 2207544. Mr. Tibollo claims and provides affidavits to show that although numerous attempts were made to effect service on them, they initially attempted to evade service for some period of time.

[12] Ms. Hanoun Anderson, Mr. Ernest Anderson, and 2207544 then retained another solicitor, Barry Nussbaum, to represent them on the Assessment Hearing respecting their accounts with Mr. Tibollo's law firm. Mr. Nussbaum attended on the preliminary appointment and he was consulted on the Assessment Hearing dates.

[13] When he attended that hearing, Mr. Nussbaum confirmed to the Assessment Officer that he was there on behalf of all three clients, 2207455, Ernest Anderson and Hala Hanoun Anderson, as is correctly reflected in the style of cause of that proceeding. In addition, it is important to note that no objection was ever made by Mr. Nussbaum to proceeding by way of Assessment and that there was no dispute to the existence of the retainer ever raised by any of these participants during those initial attendances. Clearly, Ms. Hanoun Anderson knew about the existence of this Assessment procedure and that the September 4 hearing date had been booked, and yet she raised no complaint at that time that she ought not to have been included as a named party because she had not retained the solicitor as she now claims.

[14] Mr. Nussbaum had agreed to represent all three clients at the Assessment Hearing on September 4, 2012, but as the date approached circumstances changed. On August 14, 2012, Mr. Tibollo’s firm learned from an exchange of emails that Barry Nussbaum was no longer retained to represent Ms. Hanoun Anderson, Mr. Anderson, or 2207544 at that Assessment. He did confirm, however, that his clients were advised and aware of the September 4 hearing date, but when that day came, only Mr. Anderson attended. Ms. Hanoun Anderson did not.

[15] Once again, Mr. Anderson complained to the Assessment Office that Mr. Nussbaum had failed to attend. He sought an adjournment. The Assessment Officer tried but was not successful in his attempt to contact Mr. Nussbaum. Consequently the matter had to be adjourned, yet again. It was put over to February 19, 2013. Costs thrown away were ordered against the clients, jointly and severally, payable forthwith and fixed in the amount of $2,500.

[16] However, when Mr. Tibollo returned to his office, he contacted Mr. Nussbaum and learned that contrary to what Mr. Anderson had told the Assessment Officer, Mr. Nussbaum was not retained. Mr. Anderson appeared to have lied to the Assessment Officer.

[17] The clients were advised that the Assessment Hearing would proceed on February 19, 2013 and that the cost order of $2,500 was payable forthwith. That letter was sent to 1258 Eglinton Avenue West, Suite 138, Mississauga Ontario, being the address that Ernest Anderson advised was the mailing address for both he and his spouse. That address is actually a P.O. Box address at the Printing Shop.

[18] No payment was received of the $2,500 prior to the February 19, 2013 Assessment Hearing. Mr. Tibollo attended the Assessment Hearing that day. Mr. Ernest Anderson and Ms. Hanoun Anderson also attended. Mr. Nussbaum was not present. The Assessment proceeded. Mr. Tibollo gave his evidence at the Assessment Hearing on behalf of his firm in support of the Assessment that he was requesting and then, for the very first time, and after having heard the evidence of the solicitor, Ms. Hanoun Anderson alleged that she and her company, 2207544 Ontario Inc., were now disputing that they had ever retained Mr. Tibollo or his firm. As a result, the Assessment was adjourned, yet again, but this time in order for Ms. Hanoun Anderson and her company to bring this motion to set aside the Order on Requisition since the Assessment Officer only has jurisdiction where there is no dispute that the solicitor has been retained.

[19] Although I was prepared to hear Ms. Hanoun Anderson today at the hearing of this motion, it is important to note that neither she, nor her company, nor Ernest Anderson have paid the September 4, 2012 cost order of $2,500. Evidently they have no intention to comply with that order. Mr. Tibollo’s counsel said that on the basis of that conduct, I ought not to hear Ms. Hanoun Anderson on this motion. There certainly is authority to support that position: see Lindhorst v. Stone & Co., [2012] O.J. No. 2495 (S.C.J.) at paras. 15-18 and 25, Stacey v. Barrie Yacht Club, [2003] O.J. No. 4171 (S.C.J.) at para. 15, but in my view that would simply have forestalled dealing firmly and finally with the obfuscatory tactics that Ms. Hanoun Anderson and her former husband have consistently and persistently used to avoid their day of reckoning to pay for legal services that they retained and consumed, and that was evident on the face of the records put before the court.

[20] The solicitor asserts in his affidavit that whether Ms. Hanoun Anderson and her company have the funds to pay the cost order is irrelevant. I agree. She claims they do not. She claimed she could not afford to pay for a copy of the transcript from the February 13 hearing. To the contrary, however, Mr. Tibollo asserts that there is no shortage of money involving either Mr. Anderson or Ms. Hanoun Anderson. He claims their children attend private schools where the tuition exceeds $20,000 per year per child. He notes that Mr. Anderson gave evidence under oath under cross-examination and in an affidavit that 2207544 owns various high-end automobiles and mortgages worth well over $1 million in aggregate. However, their financial worth is not the issue on this motion. There is a much simpler issue here. That is whether they retained Mr. Tibollo. The issue is whether this court should set aside the Order for Assessment dated August 5, 2011 or the subsequent costs orders dated February 19, 2013.

[21] The law establishes that in order to set aside the Order for Assessment, there must be a genuine dispute as to the existence of the retainer. Mere bald assertions that the solicitor was not retained are inadequate. If a genuine dispute is proven, then the dispute must be resolved through the commencement of an action. However, the absence of a retainer cannot be baldly claimed as a means to avoid or de-rail the Assessment process. The dispute must be bona fide. It must be evident on the face of the record: Whiteacre v. McGregor, [1980] O.J. No. 811 (S.C.O. Div. Ct.). and it cannot be brought up at the last moment when the client has raised no challenge on a timely basis when the record shows an awareness of the steps that were ongoing: see Price v. Sonsini, 2002 41996 (ON CA), [2002] O.J. No. 2607 (C.A.) at para 17 and Rule 2.02(b).

[22] In this case, neither 2207544 Ontario Inc., nor Ernest Anderson are moving to set aside the Order for Assessment even though 2207544 alleged for the first time at the second day of the Assessment on February 19, 2013 that there was a dispute in the existence of the retainer of his firm. Indeed, I learned today that Ms. Hanoun Anderson has actually removed herself from her position as sole director, and thereby brought the life of 2207544 to a corporate end given that it no longer has a director. That corporate suicide, so to speak, is evidenced by the Ontario Corporations Branch Form 1 in which Ms. Hanoun Anderson removed herself as sole director of the corporation on March 21, 2013.

[23] There are also several specific pieces of evidence that relate to the veracity of Ms. Hanoun Anderson’s claim that she did not retain Mr. Tibollo. It is interesting to note from the client information forms that were found at Tabs F, G and H of the responding Motion Record that the handwriting that fills in all three forms shows the text appears to have been completed by a person with the same handwriting, who Ms. Hanoun Anderson said was her former husband, Ernest Anderson. But when I observed to Ms. Hanoun Anderson that the signature on the client information form that related to her looked virtually identical to her signature that was on the photocopy of her driver’s license contained in the responding record, and indeed that looked exactly the same as the signature on her driver’s license that I asked her to see in court at that time, it seems evident that the document was signed by her, despite her denials.

[24] Secondly, the record shows that Ms. Hanoun Anderson redirected settlement funds due from the Bennett Jones law firm to be received by her personally, rather than by Mr. Tibollo’s firm. The solicitor at the Bennett Jones firm, Emrys Davis, acknowledges in an email to Adam Grant of Mr. Tibollo’s firm that he was "sending the check this morning directly to Ms. Anderson (payable to 2207544 Ontario) per additional instructions received from Ms. Anderson earlier this week." (my emphasis).

[25] Finally, I found it disturbing that there were two separate versions of the agreement purporting to establish that Ms. Hanoun Anderson entered into a trust deed with Mr. Ernest Anderson on the date of incorporation of 2207544, in which it was purportedly agreed that she held the shares of 2207544 beneficially exclusively for him. Particularly disturbing was the fact that two copies of the same agreement had entirely different dates and recitals on them. One of those trust agreements states in its recital that the trustee, Ms. Hanoun Anderson caused 2207544 Ontario Inc. to be incorporated on July 20, 2011. A different version of that same trust deed that was put forward in materials found in Ms. Hanoun Anderson's Motion Record reflected an incorporation date and a date of conclusion of the trust agreement of January 5, 2010, 18 months earlier. Finally, if that was not enough to cause a serious concern relative to the date and reliability of any trust agreement, the actual Ontario Corporation Form 1 that Ms. Hanoun Anderson completed on March 21, 2013 ceasing to be a director of 2207544 as of that date, reflects an incorporation date for to 2207544 of May 28, 2009, 17 months before that.

[26] A reading of Ms. Hanoun Anderson’s affidavit in support of this motion shows that she plainly wishes the court to believe (i) that she did not retain Mr. Tibollo or his law firm, (ii) that she knew nothing about the litigation matters commenced by the corporation of which she was the sole director, officer and shareholder, namely 2207544, and (iii) that she bears no responsibility for any of the fees and disbursements that were incurred by Mr. Tibollo’s firm in acting for her or her husband or the Corporation with respect to the Action. However the evidence advanced by Mr. Tibollo in his responding Motion Record, including instances of her own statements, plainly shows that Ms. Hanoun Anderson (i) was a client, (ii) provided Mr. Tibollo with her driver’s license, (iii) signed his firm's client information forms, (iv) received his firm's engagement letter, (v) paid the initial retainer of $5,000 with her company cheques bearing her signature, (vi) acknowledged that she was a client, both orally and in writing, and (vii) intercepted settlement funds payable to 2207544 that ought to a been directed to Mr. Tibollo’s firm on account of fees. Moreover, after they had removed themselves from the record, she then attempted to re-engage his firm for an appeal. To suggest that Ms. Anderson had not retained or hired Mr. Tibollo and his law firm or that she was not their client and knew nothing about these matters is, frankly, disingenuous and false on the plain record of documentation that was put before me on this motion.

[27] It is clear to me and I find that Ms. Hanoun Anderson was a client of Mr. Tibollo and his firm, just as her former husband, Ernest Anderson and 2207455 were both clients of that firm. The documentation before the court demonstrated that fact beyond dispute. Further, Ms. Hanoun Anderson has effectively come to court seeking a remedy innocently claiming that she knew nothing of these matters when the evidence plainly shows the contrary. The motion to set aside the Order for Assessment dated August 5, 2011, and the subsequent costs order given at an Assessment Hearing by Assessment Officer Mr. T. Fernandez on September 4, 2012 is dismissed with costs.

[28] If Ms. Hanoun Anderson and counsel for Mr. Tibollo are unable to agree on costs, acting reasonably, within the next 10 days, counsel for the solicitor may seek further directions from the court or seek a 9:30 a.m. appointment on notice to Ms. Hanoun Anderson to speak to the issue of costs.

Michael G. Quigley J.

Released: July 31, 2013