COURT FILE NO.: CV-14-498882

DATE: 20140609

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Elisabeth Eveline Mitchinson, Applicant

– AND –

Bakerlaw, Respondent

BEFORE: Justice E.M. Morgan

COUNSEL: Elisabeth Mitchinson, in person (assisted by Tim Mitchinson)

Louis Sokolov and William Roland, for the Respondents

HEARD: June 9, 2014

ENDORSEMENT

[1] This Application seeks three forms of relief: (a) a declaration as to whether any finding of negligence against the Respondent by an Assessment Officer would be res judicata against the Respondent; (b) that the audio recordings created by the Applicant that record conversations between her and the Respondent on April 17, 2012 be admissible; and (c) that the assessment of the Respondent’s account be held before a Superior Court judge rather than by an Assessment Officer.

[2] There has been no negligence claim brought by the Applicant, although an allegation of negligence, or failure to follow instructions, appears to lie at the core of the Applicant’s objection to the Respondent’s legal bill. Since no negligence action was ever commenced, I see no reason for anything to be determined with respect to res judicata. The Applicant and the Respondent both now agree that this issue has become moot, as the limitation period for a negligence claim has expired.

[3] The Applicant contends that there has been inordinate delay in getting the matter before an Assessment Officer. The Applicant’s position is that the accumulation of delays and errors at the Assissment Office amount to an apprehension of bias. For that reason, she seeks to have the assessment taken away from an Assessment Officer and moved to a judge of this court.

[4] There have been a number of failed or aborted mediations. This Application has also intervened to prevent the assessment hearing from reconvening. The Respondent wanted time to report the allegations to Law Pro, and to have the insurer appoint counsel, as has now occurred. The Assessment Officer referred the question of negligence, and whether any finding at the assessment hearing would be res judicata in a subsequent action, to this court for determination before proceeding with the full assessment hearing. This Application hearing date was then adjourned at least once for cross-examinations to take place.

[5] In addition, there has been at least one clerical error in which an Assessment Officer marked the matter as settled, which has now been corrected on the record. The Applicant also complains that the Assessment Office has lost some of her correspondence and that there have been a number of miscommunications with that office.

[6] Unfortunately, the wheels of justice do sometimes spin slowly, both in court proceedings as well as in assessment proceedings. Likewise, the assessment office, like the court office and every other office, is staffed by human beings who sometimes make mistakes. However, I have not heard anything that strikes me as something other than inadvertent administrative mishaps; I certainly have not seen or heard anything in respect of the assessment proceedings or the administration of the assessment office that rises to the level of an apprehension of bias.

[7] The matter should proceed to an assessment before an Assessment Officer forthwith.

[8] The Applicant points out that the case law requires a solicitor to facilitate a client’s assessment of the law firm’s account. In that spirit, I require counsel for the Respondent to ensure that this matter be restored to the assessment office’s list as soon as is practicable and that the hearing before an Assessment Officer be scheduled cooperatively with the Applicant for as early a date as the assessment office can reasonably provide.

[9] Finally, the Applicant has indicated that it is in possession of certain surreptitious audio recordings that it made of conversations with the Respondent and of negotiations with the opposing party in the underlying Human Rights Tribunal action in which the Respondent represented the Applicant. The Applicant has provided counsel for the Respondent with edited transcripts of those recordings, but does not wish to disclose all of the recordings.

[10] The Applicant’s position is that she has provided all of the portions of the recordings on which she intends to rely at any assessment hearing. She contends that the balance of the recordings are “privileged” conversations between the Applicant and her spouse recorded during the course of the day in which the negotiations took place.

[11] In my view, it is not enough for the Applicant to produce only those portions of the recordings, or the transcripts thereof, on which she intends to rely; the Respondent has a right to hear all of the conversations in context, and to determine if any of the conversations that were edited out of the material provided to him are helpful to the Respondent’s case.

[12] Further, there is no privileged relationship between the Applicant and her spouse who is acting as her spokesperson here. The Applicant’s spouse is not a solicitor, but rather is in the role of an agent whose communications with the Applicant do not fall within any category of legal privilege.

[13] The Applicant must provide Respondent’s counsel with a copy of the complete audio recordings in question, and not just the portions on which the Applicant intends to rely.

[14] Neither party here is seeking costs. Both sides agree that this matter was directed to court by the Assessment Officer, and that therefore costs should not be awarded for or against either party.

Morgan J.

Date: June 9, 2014