Endorsement
COURT FILE NO.: 13-57614
DATE: 20140625
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Octavie Tshlani Bimsumule, Appellant
AND
Edward C. Conway, Respondent
BEFORE: Mr. Justice Robert J. Smith
COUNSEL: Self-represented
HEARD: By written submissions
E N D O R S E M E N T
Overview
[1] The appellant filed a “motion affidavit” opposing the confirmation of the assessment decision of Ms. Bender dated February 3, 2014. The “motion affidavit” will be considered as a notice of appeal and I ruled that the time period was extended for filing the notice of appeal in the circumstances.
[2] The appellant appeals from assessment officer’s decision approving fees of $75,000 (reduced from $82,646.67) plus $5,000 for costs of the assessment hearing.
[3] The appellant submits that the assessment officer’s award was unreasonably high and constitutes an error in principle based on a number of factors including:
i) The legal services rendered;
ii) The degree of responsibility;
iii) The result achieved;
iv) The level of complexity;
v) The abusive conduct of the lawyer; and
vi) His capacity to pay.
[4] The appellant argued that the assessor committed an error in principle by refusing to accept a number of relevant e-mails exchanged with Mr. Conway. The respondent submitted that the assessment officer had considered all of the emails exchanged between them and had not refused to consider any e-mails. The appellant was unable to identify any emails that the assessment officer refused to consider. I therefore dismiss this ground of appeal as the appellant could not establish that assessment officer failed to consider any relevant e-mails.
[5] The appeal from the assessment of costs is dismissed for the following reasons:
a) The appellant submitted that the amount awarded was not reasonable in relation to the maximum legal fees estimated by the lawyer. This ground of appeal has no merit and the assessment officer’s decision on this issue is reasonable, because the appellant signed a retainer agreement with the benefit of independent legal advice agreeing to pay the full amount of his bill of costs dated April 23, 2013. In addition the appellant agreed to provide a mortgage to the respondent as security for the amount he agreed to pay. The appellant had also paid $24,572.19 towards the respondent’s bill of costs.
b) The assessment officer found that the appellant was aware of the work being done on his file and that he authorized all of the work. The transcript evidence supported this finding. The client was found to be very intelligent and was not an unsophisticated client. The appellant acknowledged that he performed a large amount of work by assisting with the preparation of documents and was very involved in his case. The assessment officer considered the work performed by the appellant when making her award.
c) The appellant has not identified any error of principle in the assessment officer’s findings and has simply repeated the factors to be considered in assessing a solicitor’s account.
d) The appellant argues that the assessment officer erred in principle by failing to consider his statement of defence in the mortgage action. The appellant’s statement of defence in another action is only a pleading and is not evidence in the assessment hearing. As a result I find there was no error by the assessment officer on this issue.
e) The appellant was unable to show that the assessment officer applied the wrong burden of proof. The respondent acknowledged that he bore the burden of proof and the assessment officer applied the burden of proof correctly.
f) I find that the assessment officer did not make a palpable and overriding error of fact when she found that the appellant had paid the respondent $3,000 in cash rather than $8,000 as he alleged. The appellant did not introduce any evidence to support his allegation that he paid the respondent $8,000 in cash. The assessment officer heard both parties and had evidence on which she could reasonably make the finding of fact she made. The appellant has not shown that the assessment officer made any errors of principle in her finding of fact on this issue.
g) The appellant submits that the respondent refused to accept the offer to settle made by the Children’s Aid Society of a 50/50 custody arrangement and a six month supervision order. There was no evidence that the respondent refused to follow the appellant’s instructions by refusing to make or accept an offer to settle;
h) There was no evidence of abusive conduct by the lawyer that would justify reducing his bill of costs especially since the appellant was advised to obtain independent legal advice before signing the retainer and agreeing to pay the bill of costs. The appellant did obtain independent legal advice before signing the retainer and the mortgage to the solicitor.
Disposition
[6] For the above reasons, I find that the assessment officer did not make any error in principle or make any palpable and overriding errors of fact and the appeal is dismissed.
Costs
[7] Having considered the parties written costs outlines the appellant is ordered to pay the respondent costs of the appeal of $3,000 plus HST.
R. Smith J.
Date: June 25, 2014
COURT FILE NO.: 13-57614
DATE: 20140625
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Octavie Tshlani Bimsumule, Appellant
AND
Edward C. Conway, Respondent
BEFORE: Mr. Justice Robert J. Smith
COUNSEL: Self-represented
ENDORSEMENT
R. Smith J.
Released: June 25, 2014