NEWMARKET

COURT FILE NO.: CV-11-102504

DATE: 2013-09-09

SUPERIOR COURT OF JUSTICE – ONTARIO

In the matter of the Solicitors Act, and in the matter of:

RE: NICHOLAS C. TIBOLLO PROFESSIONAL CORPORATION, Solicitor (Moving Party)

AND:

BRUNA NICOLETTI (GUIDO) and PETER NICOLETTI, Clients (Responding Parties)

BEFORE: THE HON. MR. JUSTICE P.H. HOWDEN

COUNSEL:
L. Marzinotto, Counsel, for the Moving Party

Responding Parties Self-Represented, aided by A. Guido

HEARD: August 29, 2013

ENDORSEMENT

[1] This is a motion to strike all or part of the affidavit of Bruna Nicoletti sworn on April 17, 2013. Bruna Nicoletti is moving to oppose confirmation of the Report and Certificate of Assessment following a hearing by the Assessment Officer Hugh Boyd in 2011. In support of the motion, Ms. Nicoletti swore and filed the affidavit in question. I am told that the hearing of the motion of Ms. Nicoletti is scheduled for September 16, 2013 for four days.

[2] I have read all of the material on the motion and I have heard submissions from counsel for the moving party and from Anthony Guido for Ms. Nicoletti. Mr. Guido was allowed to aid his wife in making submissions for her pursuant to the order of McCarthy J. who, on adjourning this motion, ruled that Anthony Guido may represent Bruna Nicoletti “on this matter or an aid to her.” This order only covers this motion, not the hearing of the motion opposing confirmation where it will be for the presiding judge to deal with that issue. I mentioned to the parties that this court’s usual practice is not to allow anyone who is not admitted to the Ontario bar as a qualified lawyer to represent a party. However, that does not always mean that a lay person may not, with leave, provide aid to a party who has problems in communicating in court. I leave this to the presiding judge on the hearing of the confirmation opposition motion.

[3] It appears that the affidavit filed by Ms. Nicoletti is largely directed at the retainer issue, even though one of the conditions precedent to the assessment under s.3 of the Solicitors Act, R.S.O. 1990, c. S.15. The preamble to s. 3 reads: “Where the retainer of the solicitor is not disputed....” Where the retainer is challenged, the practise is to challenge by motion, before the assessment proceeds, the praecipe order authorizing the hearing. If the judge on the motion decides that there is a bona fide dispute of the retainer, the assessment cannot proceed and the solicitors would have to commence an action in the ordinary way. Whiteacre v McGregor, [1980] O.J. No. 811. No such challenge was made in this case prior to the assessment.

[4] What the solicitor is submitting through his counsel is that because the motion opposing confirmation is similar to an appeal, the parties are limited to the transcript of the hearing and the material before the Assessment Officer. In a recent case, Lauwers J. (as he then was), ruled that it is not a re-hearing or a new hearing on the merits. The result should not be interfered with unless there was some error in principle, an excess of jurisdiction, or misapprehension of the evidence. Bales Beall LLP v. Fingrut, 2012 ONSC 4991, [2012] O.J. No. 4762 (S.C.J.). But interestingly, in Re Solicitors (Leibel v Kelner and Elman), [1978] O.J. No.2347 (S.C.J.), Master Sandler refers to Re Solicitors (1924), 27 O.W.N. 163 where, notwithstanding that the “client” had participated in the taxation (now referred to as an assessment of costs), the Court on appeal held that the appeal should be deemed a motion to set aside the praecipe order and the time should be extended to allow it. In that case, it was known before the assessment that some of the “clients” disputed the retainer, nevertheless this sort of remedy is there for the presiding judge on this matter, who will have all of the facts before him or her.

[5] It is submitted that the client, not having contested the retainer, should not be allowed to even allege that it was in issue now after the assessment, and that the parts of the affidavit alleging the issue should be struck. The problem presented to me is that the moving party, in its notice of motion and before me, provided me with no authority, in the statute or the Rules of Civil Procedure as they are now, to strike an affidavit on a motion because of its content and alleged contradiction of the facts before the assessment officer.

[6] Rule 33.07 permits an affidavit to be struck for failure to comply with the requirements for medical reports during the discovery process. Rule 34.15 provides authority for striking out an affidavit for failure to attend for an examination or refusal to answer proper questions. There are rules providing for striking a defence for failure to pay costs or misconduct in the discovery process or examinations out of court. The moving party has provided no such authority for me to strike this affidavit before the hearing.

[7] In the circumstances, it appears that this is really an issue for the judge presiding at the hearing of the motion opposing the confirmation. It is an issue as to the scope of the hearing that the presiding judge will allow, and the inherent powers of the judge presiding at the hearing include that power. This is an issue that goes to the evidentiary record before that judge at the hearing of the motion and as it really is an issue of admissibility of evidence as well as scope of the hearing, I find that it should properly be left to the judge presiding at the hearing of this matter to control the evidentiary record.

[8] In the circumstances, this motion is adjourned to be dealt with by the judge presiding at the confirmation motion. Costs of this motion are left to the discretion of the presiding judge on the confirmation opposition proceeding.

HOWDEN J.

Date: September 9, 2013