SUPERIOR COURT OF JUSTICE – ONTARIO

COURT FILE NO.: CV-11-102504
DATE: 20131003

RE: Bruna (Guido) Nicoletti, Appellant

-and-

Nicholas Tibollo, Respondent

BEFORE: The Honourable Mr. Justice M. K. McKelvey

COUNSEL:
Bruna Nicoletti, Self Represented with the assistance of Anthony Guido
Lori Marzinotto, for the Respondent Nicholas Tibollo

HEARD: September 18, 2013

ENDORSEMENT

Overview

[1] The moving party in this matter, Bruna Nicoletti, has brought a motion seeking an order that the report and certificate of assessment of the assessment officer, H.B. Boyd, be set aside. The solicitor/client assessment concerned the legal account of Nicholas C. Tibollo Professional Corporation (“Mr. Tibollo”). Mr. Tibollo rendered accounts for services rendered in connection with an application in which Bruna Nicoletti, her brother Peter Nicoletti and their mother Vittoria Nicoletti were all named as respondents. The applicant was Giovanna Nicoletti who was another daughter of Vittoria Nicoletti. The application sought an order to remove Bruna Nicoletti as an attorney for property for their mother. The assessment officer reduced the solicitor’s account from $48,237.59 to $34,107.50 and found that the clients owed a balance of $21,866.30.

[2] Three separate issues were raised on the hearing of this motion as follows:

(a) Bruna Nicoletti is not represented by counsel in the action and sought leave pursuant to rule 13.02 of the Rules of Civil Procedure to have her husband speak on her behalf at the motion. For oral reasons given on the day of the motion this leave was granted.

(b) Mr. Tibollo brought a motion to strike out an affidavit of Bruna Nicoletti sworn on April 17, 2013. This motion was initially considered by Justice Howden who issued written reasons September 9, 2013 which adjourned the motion to be dealt with by the judge presiding at the motion to set aside the report and certificate of assessment.

(c) Finally, there was the motion to set aside the report and certificate of assessment of H.B. Boyd, to be considered on the merits.

The Motion to Strike the Affidavit of Bruna Nicoletti sworn on April 17, 2013

[3] Mr. Tibollo brought a motion to strike the affidavit of Bruna Nicoletti sworn April 17, 2013. This affidavit was directed to the issue of whether there was a retainer agreement between Bruna Nicoletti and Mr. Tibollo. The position of Mr. Tibollo was that because the motion opposing confirmation is similar to an appeal, the parties are limited to the documentation before the assessment officer at the time of the hearing. Justice Howden concluded that the rules did not provide any authority for the court to strike an affidavit before the hearing. He held that this was an issue for the judge presiding at the hearing of the motion to consider. He further commented that the issue related to the scope of the hearing which the presiding judge would consider and referred to the fact that the inherent powers of the judge presiding at the hearing would include that power. He therefore adjourned the motion to strike the affidavit to be dealt with by the judge presiding at the motion.

[4] Following completion of argument, I advised the parties of my decision that I would limit the evidence to be considered on the motion to evidence which was before the assessment officer at the time of the hearing. I further advised the parties that I would provide further reasons for my decision when I rendered my decision on the merits.

[5] Section 6(9) of the Solicitor’s Act, R.S.O. 1990, c. S.15. provides that a motion to oppose confirmation of the certificate from an assessment shall be made to a judge of the Superior Court of Justice. The authorities make it clear that a motion to oppose confirmation is in the nature of an appeal. It is not a new trial or a re-hearing. Such a motion falls under rule 62.01(1)(c) as an appeal to a judge under a statue. See: Bales, Beall LLP v. Fingrut, 2012 ONSC 4991, [2012] O.J. No. 4762, McMaster Poolman & DeVries v. Parssi, [1995] O.J. No. 2903.

[6] It follows that on a motion like this, which is in the nature of an appeal, the evidence and documentation to be considered is that which was before the assessment officer at the time of the hearing. This conclusion is supported by Rule 62.01 which provides that the appeal record shall contain, “such other material that was before the judge or officer appealed from as is necessary for the hearing of the appeal”. It is also supported by the decision of this court in Girao v. Bogoroch & Associates, [2012] O.J. No. 1804, at paragraph 11, where the court finds that,

The evidence and documentation to be considered is that which was before the assessment officer at the time of the hearing.

[7] The affidavit of Ms. Nicoletti sets out new evidence which was not before the assessment officer. Essentially her affidavit is directed towards an assertion that she never had any retainer agreement with Mr. Tibollo. She further asserts that Mr. Tibollo was in a conflict position and told her that he could represent her. She also makes additional allegations against Mr. Tibollo including allegations of gross negligence and incompetence. Both parties accept that this evidence goes well beyond the evidence which was adduced at the hearing before Officer Boyd.

[8] It should be noted that there was no motion before me to introduce new evidence. In any event, there was no information before me to explain why this evidence could not have been introduced at the hearing before Officer Boyd. As noted in the Supreme Court of Canada decision in R. v. Palmer, 1979 8 (SCC), [1980] 1 S.C.R. 759, new evidence should generally not be admitted if, by due diligence, it could have been adduced at trial.

[9] For the above reasons, I concluded that the motion before me would be argued on the evidence which was before the assessment officer at the time of the hearing.

Consideration of the Motion on its Merits

[10] Ms. Nicoletti raised two main objections to the order of the assessment officer. Her main objections were as follows:

(a) She asserts that the assessment officer exceeded his jurisdiction in making the order.

(b) She asserts that the calculation of the amount owing was erroneous.

Did the Assessment Officer Exceed his Jurisdiction in Making the Order?

[11] Ms. Nicoletti’s position is that the assessment officer exceeded his jurisdiction in making the order because he should have been aware that Ms. Nicoletti was contesting the existence of a retainer between her and Mr. Tibollo. In addition, she asserted that the assessment officer was not entitled to deal with any allegations of negligence on the part of the solicitor and that by doing so he exceeded his jurisdiction.

[12] With respect to the first issue it is beyond doubt that an assessment officer does not have jurisdiction to determine disputes where the retainer of the solicitor is in dispute. This is reflected in section 3 of the Solicitor’s Act which states,

Where the retainer of the solicitor is not disputed and there are no special circumstances, an order may be obtained on requisition from a local registrar of the Superior Court of Justice....

[13] This is also reflected in the Ontario Court of Appeal decision in Cookish v. Paul Lee Associates Professional Corp., 2013 ONCA 278, [2013] O.J. No. 1947, where at paragraph 20 the court states,

Subsection 3(1) of the Act and the jurisprudence relating to it make it clear that an assessment officer has no jurisdiction to determine disputes relating to the existence, nature, terms or extent of a retainer agreement where the order is obtained on requisition. There are only two exceptions to this proposition: (i) where there is really no legitimate dispute regarding the retainer; or (ii) where the dispute relates only to the quantum of the bill.

[14] In reviewing the decision of the assessment officer it is clear that no determination was made relating to the existence of the retainer. The argument put forward by Ms. Nicoletti is that based on the evidence adduced at the hearing the assessment officer should have understood that the existence of the retainer agreement was in dispute and declined to proceed with the assessment.

[15] In support of this position, Ms. Nicoletti referred to some of the evidence given at the hearing. Several passages were referenced by Ms. Nicoletti. For example, she referred to the following evidence she gave on September 8, 2011 and referred to at page 5 of the transcript,

Ms. Nicoletti: Okay, okay, um, when my brother first hired ah, Nicholas and Lori um, there was an injunction – an emergency injunction to deal with and um – um, they – they – they – they – had a – from what I understand there was a schedule for affidavit to be done on a certain date.

[16] She further referred to the following evidence on the cross-examination by Mr. Tibollo found on page 11 of the same transcript,

Q. Okay. And you’re aware that your brother and I had a business relationship, a solicitor and client relationship prior...

A. Yes.

[17] In my view, the passages referred to by Ms. Nicoletti would not justify a conclusion that she was contesting the existence of the retainer relationship. This is made even clearer when other portions of the transcript are reviewed. For example, at the end of the case when she was making submissions Ms. Nicoletti focused on the quantum of the claim and the failure of the lawyer to follow her instructions. At page 57 of the transcript of September 8, 2011 when opening her submissions Ms. Nicoletti stated,

Ms. Nicoletti: Okay, I think they spent way too much time on the, um – on the file. They should have dealt with what was the most important which was getting the injunction order gone ‘cause that’s what cost the most money. They should have just had it gone instead they – they had it seized. And caused a lot more problems because of what – that. So, they spent way too much money. Um, the injunction order expired and he brought a motion to revive it but the judge wouldn’t revive it because it had no merit, okay? So, if you guys would got rid of it in the beginning it would’ve saved me a lot of money and a lot of grief.

Later, in her submissions, she stated,

Ms. Nicoletti: I wanted it dealt with quickly and – and – and it’s still going on. Um, so it wasn’t dealt with – like you didn’t focus in on what needed to be done. You – the facts that I gave you all the facts. I had to repeat them over and over. It was like you weren’t listening. Um, I’m not a lawyer, um, my sister’s affidavit was all lies. It’s all lies, she’s using the court as a sport because she has a vendetta against me. It’s um, it’s unfair and – and – and I had no choice to represent myself. Um, your responsibility was um, you didn’t follow my instructions, you missed deadlines. Um, you – you didn’t return – you didn’t return calls. I was – I felt like she didn’t trust me, ah, she didn’t believe anything I was saying. Um, I got zero results. And um, you didn’t follow my instructions, you didn’t – you didn’t do what I needed you to do.

[18] In addition, in her evidence Ms. Nicoletti gave evidence about ending the relationship. At page 9 of the transcript for September 8, 2011, she states as follows,

The Court: Okay, so there had been billed about 45,000 dollars when the solicitor, client relationship ended, when you ended it?

Ms. Nicoletti: Yes.

The Court: And when did you end that?

Ms. Nicoletti: I think it was December 23rd. It was December 23rd, I think.

[19] I therefore conclude that the evidence at the hearing would not have raised a reasonable concern on the part of the assessment officer that there was a dispute relating to the existence of a retainer agreement.

[20] It is also significant that the order for assessment dated January 17, 2011 was issued upon the application of, “the clients Bruna Nicoletti (Guido) and Peter Nicoletti”. The order was obtained by Alfred Schorr, who was identified on the order as counsel for Peter and Bruna Nicoletti.

[21] There is also good authority that if there is going to be an objection to the assessment on the basis that the lawyer was not retained it is incumbent on the party asserting that position to move upon being served with the order. In the Ontario Court of Appeal decision in Price v. Sonsini, 2002 41996 (ON CA), [2002] O.J. No. 2607, the court comments,

In my view, the respondent’s failure to raise a timely objection to the procedure used to obtain the order for assessment is fatal. The respondent must have known that the order for assessment included all five accounts and that it had been obtained on requisition pursuant to s. 3. If the respondent considered the procedure inappropriate or defective, he should have moved to have the order quashed prior to the assessment or he should have raised a preliminary objection before the assessment officer.

[22] For the above reasons I conclude that there is no basis to question the jurisdiction of the assessment officer on the basis of any dispute over the retainer.

[23] I further reject the suggestion that the assessment officer lost jurisdiction because there were issues of negligence relating to solicitor’s conduct for the following reasons:

(a) There was never any expert opinion given during the hearing that counsel was negligent. In addition, while there was certainly evidence that Ms. Nicoletti was very dissatisfied with the services of her counsel she was not able to point me to any specific evidence of a witness who alleged negligence on the part of her counsel.

(b) In any event, the case law supports a conclusion that in considering an appropriate award an assessment officer is entitled to consider the degree of skill and competence demonstrated by the solicitor which includes questions of carelessness, impropriety and negligence in the conduct of the business to which the bill relates. See: Cohen v. Kealey and Blaney (1985), 26 C.P.C. (2d) 211 (Ont. CA) and re Solicitors, [1978] O.J. No. 2347. Thus, consideration of a claim in negligence by the solicitor would not be beyond the jurisdiction of an assessment officer.

Did the Assessment Officer Err in his Calculation of the Assessment?

[24] In the Bales, Beall LLP v. Fingrut decision Justice Lauwers considers the test to be applied in reviewing the decision of an assessment officer. The test is not one of correctness but rather whether the reasons demonstrate some error in principle or, alternatively, it should be considered on a reasonableness standard. Regardless of which standard is applied, it is clear that some deference is owed to the judgment exercised by an assessment officer.

[25] The factors to be applied by the assessment officer in assessing a solicitor’s account are set forth in Cohen v. Kealey and Blaney as follows:

(a) the time expended by the solicitor;

(b) the legal complexity of the matters dealt with;

(c) the importance of the matters to the client;

(d) the degree of skill and competence demonstrated by the solicitor;

(e) the results achieved;

(f) the ability of the client to pay;

(g) the reasonable expectation of the client as the amount of the fee.

[26] In reviewing the decision of the assessment officer it is apparent that he took into account all of the relevant factors in arriving at his decision.

[27] In considering the time expended by the solicitor, the assessment officer comments that counsel documented approximately 18.3 hours preparing for cross-examination and 4.85 hours for attendance at the cross-examination. However, the cross-examination did not proceed. In total approximately 24 hours were spent on a cross-examination that did not proceed. The assessment officer concluded, “there will be a reduction in hours in regards to preparation and attendance at the cross-examination”. Following release of his decision, counsel made further submissions with respect to some perceived errors in the reasons. Mr. Tibollo pointed out that the amount paid by the clients was $12,241.19 and not $16,761.19 as noted in the reasons. Counsel acting for Ms. Nicoletti at the time wrote to the assessment officer suggesting that if the full cost for the preparation and attendance at examinations for discovery was deducted there should be a further reduction in the fee which was allowed which would have reduced the amount owing by a further $10,000.

[28] The assessment officer issued an amendment to his reasons. He corrected the calculations based on the evidence presented to him that the clients had only paid $12,241.19 on account of the legal fees. He declined to do any further reduction on account of the legal fees because he still considered the sum of $34,107.50 to be a fair and reasonable amount for the assessment. It is to be noted in this regard that in his original reasons the assessment officer did not suggest that all of the time spent on the preparation and attendance on the cross-examination should be deducted but, rather, that there should be a “reduction in hours” in relation to that item. I also note that there was a significant reduction on the solicitor’s account to reflect the comments made by the assessment officer in his reasons.

[29] I therefore conclude that the assessment officer exercised his judgment within a standard that was reasonable and that there was no error in principle in his assessment.

Conclusion

[30] For the above reasons, I conclude there is no basis to set aside the order of the assessment officer. The motion by Ms. Nicoletti is dismissed.

[31] If the parties are not able to agree on costs they may speak to the trial coordinator within 30 days of the release of these reasons to take out an appointment to address the issue of costs. In such event, the parties will deliver brief written submissions at least two days before their attendance. If no arrangements are made within 30 days for an appointment to speak to costs there will be no order for costs on this motion.

Justice M.K. McKelvey

Released: October 3, 2013