COURT FILE AND PARTIES

COURT FILE NO.: CV-13-492691
DATE: 20140425

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: RITA MAE ODO, Applicant

AND:

WILLIAM A. MCMASTER and SINGER, KWINTER, Respondents

BEFORE: B. P. O’Marra J.

COUNSEL: Rita Mae Odo, self-represented

Veronica Marson, for the Respondents

HEARD: April 17, 2014

ENDORSEMENT

1This is a motion to refer a solicitor’s account for an assessment beyond 12 months of its payment and delivery pursuant to the Solicitors Act, R.S.O. 1990 ss. 4(i) and 11.

2The solicitor was retained by the Applicant to represent her related to two motor vehicle accidents in April of 2004.

3The agreement as to terms of retainer was confirmed in a letter from counsel to the Applicant on September 27, 2004.

4The Applicant authorized counsel to settle her tort claims at mediation on May 5, 2009. She signed and initialed an acknowledgement of net recovery and fees and disbursements to the solicitor.

5On or about May 28, 2009 the solicitor’s final account was personally delivered to the Applicant. The final account showed the fees and disbursements that had already been paid from the settlement. The Applicant did not raise any objections to the final account.

6The Applicant met with the same solicitor on or about October 13, 2010 to discuss two additional accidents she had been involved in. The Applicant did not raise any issues about the final account of May 28, 2009.

7The Applicant first objected to the final account by way of a fax dated April 1, 2011. The solicitor replied by letter dated July 4, 2011 and advised he was not prepared to reconsider the final account based on the passage of time and prior specific instructions.

8On or about April 8, 2013 the Applicant filed a complaint with the Law Society against the solicitor regarding the final account.

9On December 6, 2013, the Law Society found that there was not sufficient evidence to warrant further regulatory proceedings against the solicitor. It found that the terms of the retainer had been explained and confirmed with the Applicant in writing in 2004. It found that the Applicant knew and agreed to the amount she received from the settlement and was explained at the mediation. Within thirty days thereafter the remaining settlement funds had been distributed. The Law Society concluded that the Applicant’s challenge to the final account was unsustainable in light of the issue not being raised for two years and not being reported to the Law Society until almost four years after the settlement.

10The Applicant did not take any steps to refer the final account for an assessment hearing until late 2013 and only after the outcome of the Law Society complaint. Nearly five years have passed since the final account was paid and delivered.

the law

11If a client does not apply for assessment of a solicitor’s account within 12 months of the delivery of the account the client must establish “special circumstances” to justify an assessment.

Solicitor’s Act, ss. 4(i), 11.

Nakhdjavan v. Murdoch, 2013 ONSC 219 at paras. 4, 7 and 9.

12Special circumstances that would permit waiver of the 12 months deadline must be of an identifiably exceptional nature.

Druck v. Robins Appleby and Taub Professional Corp., 2012 ONSC 7290, paras. 13 and 14.

13Where accounts have already been paid there is a presumption that the paid account has been accepted by the client as proper and reasonable. The Court’s jurisdiction to waive the 12 month deadline in such cases is limited to “circumstances amounting to fraud or gross misconduct”.

Druck v. Robins Appleby and Taub, paras. 14 and 15.

analysis

14The Applicant did not express any concerns about the final account for almost two years after she received it and it had been paid.

15It was four years and seven months after the final account had been delivered and paid that the Applicant sought to refer the account for an assessment.

16The review by the Law Society dated December 6, 2013 referred to the challenge to the lawyer’s fees as “unsustainable”. This was based significantly on the Applicant’s signature and initials on documents in 2009 that set out her net receipt as well as fees and disbursements to the lawyer.

17There were no special circumstances or circumstances that amounted to fraud or gross misconduct by the solicitor that would support waiving the 12 month deadline for such an application

result

18Application dismissed. The Respondent very fairly did not seek costs and none are ordered.

B. P. O’Marra. J.