COURT FILE NO.: CV-12-00443802-0000

DATE: 20131028

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Wei Chen (Applicant) and Singer, Kwinter LLP (Respondent)

AND RE: Singer, Kwinter LLP (Applicant) and Wei Chen (Respondent)

BEFORE: Frank J.

COUNSEL:
Wei Chen, Applicant/Respondent, in person

Veronica Marson, for the Respondent/Applicant

HEARD: October 25, 2013

JUDGMENT

[1] These applications arise out of Wei Chen’s assessment of Singer, Kwinter LLP’s account

for legal fees in a personal injury action settled on November 30, 2010. By decision dated June 6, 2013, the Assessment Officer assessed Singer, Kwinter’s account in the amount of $110,000, as billed. Mr. Chen challenges the Report and Certificate of the Assessment Officer and Singer, Kwinter seeks confirmation of that Report and Certificate.

Factual Background

[2] Mr. Chen was injured in a car accident in 2001. He retained Singer, Kwinter in March

2010 to act on his behalf in prosecuting the personal injury action arising out of that accident. Singer, Kwinter was the fifth law firm to go on record for Mr. Chen in that action.

[3] Discoveries had been completed when Singer, Kwinter took over the prosecution of the action.

[4] Mr. Chen signed instructions directing Singer, Kwinter to settle this action for $340,000 net of fees, disbursements and taxes totaling $110,000. The fee component was $61,946.90. This is roughly $2,000 less than the fees based on the time dockets and roughly half of the fees based on the contingency fee agreement that was entered into according to Singer, Kwinter.

[5] Mr. Chen was represented by counsel on the assessment. The hearing was approximately a day and a half long.

Framework for review

[6] This court may interfere with the decision of an assessment officer only if the officer has made an error in principle. As the Court of Appeal stated in re Knipfel, (1982), 1982 3319 (ON CA), 133 D.L.R. (3d) 662 at pg. 665:

It is a settled rule that on an appeal from the taxing officer, the Court is concerned with questions of principle and not with mere questions of amount, or the manner in which the taxing officer has exercised his discretion, unless the amounts are so inappropriate or the taxing officer’s decision so unreasonable as to suggest an error in principle.

[7] If the issue is with the amount of the assessment, the court on appeal will not interfere with the assessment officer’s exercise of discretion unless the amount assessed is so grossly disproportionate as to be improper beyond question: see Dryden v. Oately, Vigmond LLP, [2022] O.J. No. 5565, at para. 25, citing Re Solicitor, [1908] O.J. No. 454 (H.C.) et al.

Analysis

[8] At the outset, and repeatedly throughout his submissions, Mr. Chen sought to play three audio tapes he claims to have made that he submits establish that Mr. Kwinter lied when he testified at the assessment hearing. Mr. Chen alleges that he asked to be allowed to play these tapes at the hearing but was refused. The assessment officer referred to these tapes in his reasons which confirm that on a number of occasions during cross-examination Mr. Chen referred to these tapes. According to the assessment officer, Mr. Chen did not ask to have them played. The assessment officer notes that when asked by his counsel on re-examination whether he had a tape, Mr. Chen said that he did not.

[9] I have no reason to doubt the reliability of the assessment officer’s statements.[^1] There is no basis upon which to grant Mr. Chen his request to play his tapes on this appeal. I refused the request.

[10] Mr. Chen objects to the assessment on the basis of the assessment officer having erred in principle by proceeding with the assessment. He submits that the assessment officer was without jurisdiction to hear this assessment pursuant to s. 3 of the Solicitors’ Act as the retainer of Singer, Kwinter is in dispute. It is correct that if there is a dispute with respect to the retainer of the solicitor, the assessment officer has no jurisdiction to proceed. However, in this case the dispute is not about whether Singer, Kwinter was retained but rather the amount the firm is entitled to recover pursuant to the terms of its retainer. As a result, the assessment officer did have jurisdiction. (Park v. Perrier, [2005] O.J. No. 3080 at para. 16)

[11] Mr. Chen alleges Mr. Kwinter was alone with the assessment officer for 20 minutes following the hearing. However, Mr. Chen does not indicate how this might provide a basis for refusing to confirm the assessment. Assuming that Mr. Kwinter was alone with the assessment officer as alleged, based on Mr. Chen’s submission, this was with the knowledge of Mr. Chen’s counsel who made no objection. This allegation is not a basis for refusing to confirm the assessment.

[12] Mr. Chen also objects to the assessment on the basis of the amounts assessed being unreasonable.

[13] The assessment officer undertook a detailed analysis of the evidence and concluded, as he was entitled to, that much of Mr. Chen’s evidence was “beyond reasonable belief”. Where his evidence conflicted with Mr. Kwinter’s, the assessment officer accepted the evidence of Mr. Kwinter.

[14] The assessment officer applied the factors to be considered in determining whether an account is fair and reasonable, as set out in Cohen v. Kealey & Blaney,[1985] O.J. No. 160 (C.A.), to the facts as he found them.

[15] The issues that Mr. Chen raises on this appeal were argued before the assessment officer. He considered and rejected each submission. This includes Mr. Chen’s aggressively argued submission before this court that the terms of the retainer agreement were contained in a letter he sent to Singer, Kwinter that provided that unless Mr. Chen netted $500,000 on settlement, Singer, Kwinter would charge no fee. The assessment officer found that Mr. Chen had not sent such a letter and, further, that it was beyond reasonable belief that in the circumstances Mr. Kwinter would agree to such a term. Both findings were clearly available to the assessment officer on the evidence.

[16] The assessment officer rejected Mr. Chen’s testimony that he had been coerced by Mr. Kwinter into entering into the settlement agreement. He accepted Mr. Kwinter’s testimony that Singer, Kwinter reduced its fees so that Mr. Chen’s net recovery would be in the amount that he insisted he recover.

[17] A focus of Mr. Chen’s impassioned submissions on this appeal was his denial of having entered into the contingency fee arrangement that Singer, Kwinter maintains was entered into on March 5, 2010. As I have said, the assessment officer rejected Mr. Chen’s testimony that the terms of the retainer were those set out in the letter he purported to have sent. But, whether the terms of the March 5, 2010 retainer agreement, which provided for a percentage payment to Singer, Kwinter, prevailed is irrelevant to the quantification of the fees. The assessment officer did not rely on the retainer agreement. Instead, he assessed Singer, Kwinter’s account on the basis of quantum meruit.

[18] The assessment officer found that the result achieved for Mr. Chen by Singer, Kwinter was outstanding. He concluded that, on the basis of the factors set out in Cohen v. Kealey & Blaney, the fees and disbursements billed to Mr. Chen were fair and reasonable. He was entitled to make this finding. Whether a reviewing court might have reached a different conclusion is not relevant.

[19] There is no basis on which this court can interfere with the assessment of the assessment officer.

[20] Mr. Chen’s application is dismissed.

[21] Singer, Kwinter’s application is granted. The Report and Certificate of the Assessment Officer is confirmed.

[22] Following the hearing of these applications, I heard submissions with respect to costs.

[23] Singer, Kwinter is the successful party and is entitled to its costs of both applications. I do not accept its submission that the circumstances are so exceptional as to warrant the award of full indemnity costs.

[24] I award costs to Singer, Kwinter on a partial indemnity basis in the total of $1,819. 50, payable by Mr. Chen within 30 days.

Frank J.

Date: October 28, 2013

[^1]: There is no transcript available of the proceedings as a result of the poor quality of the audio recording.