SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: 13-56429
DATE: 20131205
RE: Timothy N. Sullivan, Solicitor
AND
James Cornell, Client
BEFORE: Justice M. Z. Charbonneau
COUNSEL:
Timothy N. Sullivan
James Cornell
HEARD: October 8, 2013
ENDORSEMENT
[1] Mr. Cornell brings a motion opposing the Report and Certificate of Assessment of assessment officer L. Bender issued on June 3rd 2013 in respect of an account issued by solicitor Sullivan. The certificate fixes the total amount owed by Mr. Cornell to Mr. Sullivan at $13,621.05, all inclusive.
[2] The account rendered by Mr. Sullivan was for fees and disbursements incurred on behalf of Mr. Cornell in the context of a matrimonial proceeding. The proceeding was eventually settled prior to trial.
[3] The assessment proceeded before officer Bender on May 23, 2013. The fact that Mr. Cornell had retained Mr. Sullivan was not an issue. This is established very early at lines 17 to 25 of the transcript of the hearing. Mr. Cornell was upset with the services provided by Mr. Sullivan. In fact, he had already filed a complaint with the Law Society. He appeared to want to refer the officer to the transcript of the Settlement Conference held before Justice Maranger. However, he did not have the transcript at that time because he did not want to pay for its costs. In any event the assessment officer indicated he would allow him to testify and explain his grievance.
[4] There was a discussion around the fact Mr. Cornell might want an adjournment to prepare but then he indicated he wanted to proceed.
[5] Mr. Sullivan testified under oath and explained his accounts item by item. The terms of the retainer agreement were set out in writing in a retainer agreement provided to Mr. Cornell when he hired Mr. Sullivan. The evidence provided by Mr. Sullivan was thoroughly and well supported by documentary evidence.
[6] Mr. Cornell tried to cross-examine Mr. Sullivan but with very little success. He rather took the opportunity to testify. His main concern was that some information was provided by Mr. Sullivan to opposing counsel. However Mr. Cornell was unable to explain exactly how that impacted on his case. He was also complaining about a disbursement paid for an accounting for which a report had not been provided to him.
[7] The assessment officer asked him if he had further questions and Mr. Cornell indicated he would rather proceed with his own testimony. The assessment was adjourned to June 3rd 2013 at 9:00 a.m.
[8] Mr. Cornell did not appear on June 3rd. The officer proceeded in the absence of Mr. Cornell and issued the Certificate of Assessment mentioned earlier.
[9] Mr. Cornell prepared a first Notice of Motion returnable on August 13th, 2013. It was filed with the Court on June 17th, 2013.
[10] In that Notice of Motion Mr. Cornell asked an order “opposing the confirmation of the Report and Certificate of Assessment” and “referring the matter back to an assessment officer for continuation/completion of the reference”. In support of his motion he filed his affidavit in which he indicates “I was not able to attend on June 3rd, 2013 due to circumstances beyond my control”. His affidavit also indicates he left a voice mail message to the Court. He indicated that had he been able to attend he would have submitted the following evidence in support of his claims:
a) Prior to signing the retainer, Mr. Sullivan charged me $1,183.00 contrary
to the retainer agreement.
b) Sullivan Law charged for non-legal services provided by his assistant at
the rate of legal services contrary to the retainer agreement.
c) Mr. Sullivan’s Assessment brief contained emails from separate email
chains to deviously modify the context of the emails.
d) The case was not legally complex nor did Mr. Sullivan expend a
significant amount of time.
e) Mr. Sullivan charged for the services of a forensic accountant yet
failed to disclose the findings to the client or even provide a written report.
f) Mr. Sullivan conducted expensive questioning yet failed to collect
the five (5) undertakings and assemble the resulting transcripts.
g) The testimony given to the Assessment officer on May 23rd,
2012[sic] contradicted the information Mr. Sullivan provided to
the LSUC in response to my complaint regarding his failure to
represent my interests and withholding documentation from me to my
prejudice.
h) The testimony given to the Assessment officer on May 23rd, 2012 [sic]
regarding the Settlement Conference contradicts the transcripts of the
Settlement Conference released specifically for the Assessment on June 3rd, 2013.
[11] Mr. Cornell did not proceed with his motion on August 13th, 2013. He was granted an adjournment to October 8th, 2013 because he was waiting for the transcript of the Settlement Conference.
[12] On September 30th, 2013, Mr. Cornell filed an “Amended” Notice of Motion. In that motion he now asks for the following relief:
a) An Order opposing the confirmation of the Report and Certificate of Assessment dated June 3rd, 2013.
b) An Order for the refund of the initial deposit by the client in the amount of $2,000.
c) An Order for the reimbursement of $2,000 of fees paid by the client to Sullivan Law.
d) An Order for the reimbursement of the fees associated with this case in the
amount of $1,267.26.
e) In event the Honourable court determine these orders not be appropriate,
an Order referring the matter back to an assessment officer for continuation/completion of the reference.
[13] He also filed in support of his motion the affidavit of Sandra Gwen Tuppert sworn on September 30th, 2013 in which she states:
a) I can verify that James Cornell was unable to attend the Solicitor Client Assessment on June 3rd, 2013.
b) I sent an email using Mr. Cornell’s email account to Lisa Bergau from the civil office on the morning of June 3sd, 2013, a fact that can be confirmed by Lisa Bergau.
c) I received an automatic reply stating she was out of the office and for urgent matters to call the civil office’s general number at 613-239-1054.
d) I left a message with the civil office, a fact that can be confirmed by the civil office. The voice mail message advised that my phone call would be returned within one business day.
e) I also sent an email using Mr. Cornell’s email account to Mr. Sullivan signing my name to the email. A fact that can be confirmed by email records.
f) I can confirm that Mr. Sullivan testifies on Page 2, Line 10 of the June 3rd, 2013 that he attended the office prior to the Assessment and should have in theory received the email advising of the family medical emergency.
[14] On or about August 3rd, 2013 Mr. Sullivan filed the affidavit of his associate Golsa Gharmari. Annexed to the affidavit appears to be all the documents in Mr. Sullivan’s file relevant to his retainer and his account to Mr. Cornell.
[15] Mr. Cornell also filed a Motion Record containing various documents without proper identification. Finally, Mr. Sullivan filed the affidavit of his law clerk, Crystal Pelletier in response to the 36 paragraphs of allegations made by Mr. Cornell in the “Grounds” section of his Amended Notice of Motion.
ANALYSIS
[16] In order for Mr. Cornell to have the Certificate of Assessment set aside, he must show two things: 1) that his failure to attend the continuation of the Assessment Hearing was justifiable in all the circumstances and 2) that he has a valid opposition to the assessment on the merits justifying that the matter be returned back to the Assessment Officer. I am of the view that Mr. Cornell fails on both counts.
[17] The only reason that he has provided for not attending the continuation of the Assessment Hearing is: “ due to circumstances beyond my control.” He has never explained the nature of his personal emergency. In fact, when questioned about it at the hearing he talked about a sick friend or relative in Pembroke but could not explain why he could not take a few hours on June 3rd, 2013 to attend before the Assessment Officer as he had confirmed he would. Moreover, the alleged attempt at notifying the court office and Mr. Sullivan were totally unsatisfactory. The administration of justice is entitled to more than a vague voice mail message at 8:00. Similarly it is pure speculation that Mr. Sullivan must have been aware of the email sent to him by Ms. Tuppert.
[18] After reviewing the whole documentation, I have also great doubts about the credibility and reliability of Mr. Cornell’s evidence. He has failed to provide a satisfactory explanation for his failure to attend.
[19] In relation to the merits of re-opening the assessment, I note that Mr. Cornell’s amended Notice of Motion only seeks three reliefs namely: 1) the refund of the $2,000 deposit paid to Mr. Sullivan when he signed the retainer; 2) the reimbursement of the sum of $2,000 paid to Mr. Sullivan on account of fees; and 3) the reimbursement of the sum of $1,267.26.
[20] I have reviewed all the documents provided by the parties. The total bill provided by Mr. Sullivan was $14,516.70. Net of disbursements and taxes, his fees total $6,206.50. Given the terms of the retainer and the fact this matrimonial matter proceeded basically to the eve of the trial, the amount is certainly reasonable on its face. A review of Mr. Sullivan’s dockets also confirms this.
[21] Moreover, the various specific complaints raised by Mr. Cornell do not appear justified on a review of the various documents provided by both parties. Mr. Sullivan provided completed documentary support for his various accounts. All disbursements appear reasonable. This includes the $1,000 authorized in writing by Mr. Cornell for the accounting.
[22] Mr. Cornell has not shown that there is further objections to Mr. Sullivan’s account that are justified on the merits.
[23] For all of these reasons, the motion is dismissed and the Certificate of Assessment dated June 3rd, 2013 is confirmed.
[24] Costs should follow the event. Mr. Sullivan seeks costs of $3,133.01 as indicated in a bill of costs filed at the Hearing. Mr. Cornell may provide me his written submissions on costs within 20 days, if so advised.
Justice Michel Z. Charbonneau
Date: December 5, 2013
COURT FILE NO.: 13-56429
DATE: 20131205
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Timothy N. Sullivan, Solicitor
** AND**
James Cornell, Client
BEFORE: Justice M. Z. Charbonneau
COUNSEL: Timothy N. Sullivan
James Cornell
ENDORSEMENT
The Honourable Justice Michel Z. Charbonneau
Released: December 5, 2013