Gowling Lafleur Henderson LLP v. Toronto Institute of Pharmaceutical Technology, 2014 ONSC 4778

SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 12-54168
DATE: 2014-08-18

RE: Gowling Lafleur Henderson LLP, Applicant

AND:
Toronto Institute of Pharmaceutical Technology, Respondent

BEFORE: Honourable Justice Timothy Ray

COUNSEL: Counsel, for the Applicants, Jaimie Lickers and Guy Regimbald

Counsel, for the Respondent, Bola Adetunji

HEARD: August 18, 2014

ENDORSEMENT

1The respondent brings this motion to dismiss which in fact is in two separate motion records attacking an order obtained by the applicant for an assessment of its accounts. Since apparently the respondent challenged the retainer, the assessment was ordered to be heard by a judge. The applicant seeks an order amending the name of the respondent in the order on the ground of misnomer.

2After the applicant argued its motion to amend, the respondent indicated he was not opposing the order to amend. I am satisfied on the basis of the affidavit evidence of the individual employed by the applicant, that there are sufficient grounds for the amendment. There is no prejudice to the respondent. Accordingly, the relief requested is granted and an order is to go in accordance with the applicant’s draft order.

3The respondent’s motions are dismissed. I asked for submissions at the outset on the issue of the weight to be given to the affidavit in support of the respondent’s motions since the affiant had described herself as an assistant whose job was to open the mail and do filing for the respondent. The lion’s share of her affidavit was devoted to what the principal of the respondent had told her. I ruled that the affidavit would be given no weight. However, the exhibits attached to her affidavit were not contentious. I accepted that they would form part of the argument.

4The respondent’s position was that there was no evidence of a retainer, and therefore, the assessment order should be set aside. It was agreed that there was no formal retainer. I don’t accept the respondent’s argument that emails between the applicant and the respondent’s principal demonstrated that the principal, personally, was the true client instead of the respondent. There was no evidence from the principal. The documents were quite ambiguous. The retainer will be an issue for the judge hearing the assessment should the respondent choose to advance it.

5The evidence in the exhibits that the respondent says shows that services were performed for the principal in his personal capacity, not the respondent, is unclear. In the absence of evidence from the principal, there is no evidence to support the respondent.

6Finally, the respondent’s argument that the services of a patent agent are not available under the assessment regime fails. The applicant is a law firm that seeks to have its bills assessed. The services of a patent agent are legal services in the same manner that a paralegal’s services are assessable rather than those of a patent attorney and being supervised by a law firm. I imagine if the applicant expanded its services to include plumbing and electrical services, then the assessment process may fall outside its scope. That would be because they would fall outside the scope of legal services. It is common to include in assessments, the services of non-lawyers.

7The respondent therefore fails in his motion to demonstrate there was no retainer, his motion that the assessment process is unavailable, and also his motion to show that the corporate respondent was not responsible for the applicant’s accounts.

8The applicant filed a costs outline in accordance with Rule 57. The applicant did not.

9If the parties cannot agree on costs, they may make written submissions of two pages or less within twenty days and a further ten days for reply.

Honourable Mr. Justice Timothy Ray

Date: August 18, 2014

COURT FILE NO.: 12-54168

DATE: 2014-08-18

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Gowling Lafleur Henderson LLP, Applicant

AND:

Toronto Institute of Pharmaceutical Technology, Respondent