Court File and Parties
COURT FILE NO.: CV-12-460167
DATE: 2013-11-05
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ORVILLE STAFFORD WILLIS,
Applicant
– and –
LAWRENCE NORTON SHAPIRO,
Respondent
Orville Willis in person, unrepresented
Mark S. Shapiro, Counsel for the Respondent
HEARD: OCTOBER 7, 2013
Endorsement
endorsement: greer J.:
[1] The Applicant, Orville Stafford Willis (“Willis”), commenced this Application on July 31, 2012, to have the legal accounts of his former Solicitor, the Respondent, Lawrence Norton Shapiro (“the Solicitor”), assessed. He also asks for an Order that there be a rejection of an agreement by reduction of the amount payable. He wants all the Solicitor’s legal accounts assessed, whether paid or not. The Solicitor was retained by Willis to act for him commencing February 2010 in an uncontested Family Law matter. The Solicitor’s services were terminated by Willis on October 2011. The parties did not either enter into any written and executed retainer agreement or by way of a retainer letter.
[2] Over the period in question, Willis says that he paid, in total, $9,500 with one amount of $1,500 remaining unpaid. Willis says all the monies paid by him were paid before the Solicitor sent him any legal accounts. Attached hereto as Schedule “A” is an outline prepared by Willis showing his 7 payments made between February 22, 2010 to May 19, 2011, all by Money Order.
[3] The Solicitor’s 5 Invoices are listed as being “picked up” by Willis from the Solicitor’s Office on September 23, 2011, one by e-mail on September 23, 2011, and 7 by e-mail on October 17, 2011.
[4] The Solicitor swore an Affidavit on October 28, 2012. He says he informed Willis that his hourly billing rate would be $400 per hour. He claims he mailed the invoices to Willis on their respective dates. Willis says in his e-mail to the Solicitor dated September 22, 2011, that he picked all 5 invoices up at the Solicitor’s Office on that date and received nothing by mail.
[5] The Bills are dated to correspond with the photocopies of Willis’ various bank drafts in his Application Record. There is no evidence from the Solicitor to show that each account was mailed on the date shown on the Invoice. There is no signature of the Solicitor on any of these Invoices.
[6] The Solicitor says Willis still owes the sum of $1,587.45. Willis does not deny that this account has not been paid. It is dated September 23, 2011 and also is unsigned.
[7] Willis received an e-mail dated October 17, 2011 from Stacy Norris of the Solicitor’s Office attaching 7 invoices dated between June 15, 2010 and January 11, 2011, saying, “I apologize for any inconvenience; I thought I had provided you with your invoices.”
[8] The Solicitor swore an Affidavit on October 28, 2012, to which he attached a copy of his time dockets for the matter and confirming the amount outstanding.
[9] There was a delay in the proceeding due to Willis’ complaint about the Solicitor to the Law Society of Upper Canada. Its file was closed after 5 months and Willis then served his Application dated July 31, 2012 for hearing November 2, 2012.
[10] Willis wanted to have all of the Solicitor’s Accounts referred for an Assessment. The Solicitor refused to do this.
[11] Section 4(1) of the Solicitor’s Act, R.S.O. 1990, c. S.15 (“the Act”) provides that solicitor’s accounts shall not be referred for assessment after 12 months from the time the account was delivered, sent or left for the client, unless special circumstances are proven to exist to the Court or Judge hearing the matter.
[12] Section 11 of the Act provides that the payment of a solicitor’s account does not preclude the Court from referring the account for assessment if special circumstances exist.
[13] It is the position of the Solicitor that no special circumstances exist to allow his accounts to be assessed. Willis says that special circumstances exist, given that the Solicitor received the accounts long after he had paid amounts on account asked by the Solicitor before any accounts had ever been provided.
[14] In Enterprise Rent-A-Car v. Shapiro, Cohen, Andrews, Finlayson (1997), 28 O.T.C. 305 (Ont.Gen.Div.), the Court said that it has broad discretion to order an assessment where the interests of justice in a particular case would be served, pointing out that one of the underlying principles of the scheme of assessment under the Act is that payment indicates satisfaction.
[15] In Guillemette v. Doucet 2007 ONCA 743, the Court of Appeal notes in para. 4 that a finding of “special circumstances” turns on a fact-driven exercise of judicial discretion. It went on to say, “This Court will defer to that discretion absent an error in principle or a clearly unreasonable result.” The Court also found in para. 2 that a finding of special circumstances by the Judge permits the commencement of the Application for a Reference to assess Costs beyond the two-year limitation period found in the Limitations Act, R.S.O. 2002, c. 24, Sch. B.
[16] In the recent decision of the Court of Appeal in McCarthy Tétrault LLP v. Guberman, [2012] O.J. No. 4694, 2012 ONCA 679, the Court said in para. 13:
The right of a client to have a lawyer’s account assessed is an important one, not to be taken away except in compelling circumstances. As this Court has stated, public confidence in the administration of justice requires the court to intervene when necessary to protect the client’s right to a fair procedure for the assessment of a solicitor’s bill. See: Price v. Sonsini (2002), 2002 41996 (ON CA), 215 D.L.R. (4th) 376, at para. 19.
[17] In my view, Willis has proven that special circumstances exist with respect to how the Solicitor failed to promptly and properly send out accounts to be paid. What was sent out, not by mail as the Solicitor suggests, but by e-mail long after the fact. They arrived after the retainer had been terminated. None were properly signed and only the last one had proper detail.
[18] The Solicitor’s submission that the Limitations Act, supra, applies, is rejected, given the Court of Appeal’s decision in Guillemette, supra.
[19] An Order shall go under subrule 57.01(3.1) in exceptional cases that all of the Solicitor’s legal accounts shall be submitted to the Assessment Officer pursuant to subrule 57.02(1). A copy of this Endorsement and my Order shall be sent to the Assessment Officer.
[20] If the parties cannot otherwise agree on Costs, I will receive brief written submissions by them no longer than 2 pages in length, sent to me care of Judges’ Administration, 1st floor, Court House, 361 University Avenue, Toronto, within 30 days of this Order.
Greer J.
Released: November 5, 2013
COURT FILE NO.: CV-12-460167
DATE: 20131105
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ORVILLE STAFFORD WILLIS,
Applicant
– and –
LAWRENCE NORTON SHAPIRO,
Respondent
ENDORSEMENT
Greer J.
Released: November 5, 2013