SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CV-13-479516

DATE: 20140109

RE: STEVEN W. LEGAULT, Applicant

AND:

LISA C. HERMAN, Respondent

BEFORE: MORAWETZ R.S.J.

COUNSEL:
Steven W. Legault, In Person

Alfred H. Herman, for the Respondent

HEARD: NOVEMBER 20, 2013

ENDORSEMENT

[1] The Notice of Application brought by Mr. Legault, dated May 2, 2013, requests an assessment of Lisa Herman’s account. Although not specifically stated, it appears that Mr. Legault has brought this application for an order directing a reference of the accounts of Ms. Herman dated July 26, 2011, October 6, 2011 and January 17, 2012 to an assessment before an Assessment Officer. The accounts have been paid in full.

[2] The grounds put forth by Mr. Legault are as follows:

(a) he overpaid Lisa Herman’s account;

(b) he did not have a retainer agreement;

(c) he was simply told to pay a fee of $400 per hour

(d) he was treated unprofessionally during meetings as Lisa would take calls during these meetings to talk with family members, and other cases;

(e) he was abandoned in court and told there may be papers to sign during the first case conference;

(f) he feels the amount of time spent was excessive and did not produce any result.

[3] Mr. Legault filed an affidavit in support of his application.

[4] Ms. Herman swore two affidavits. The first was sworn October 10, 2013 and the second was sworn November 13, 2013.

[5] Exhibit I to Ms. Herman’s affidavit of October 20, 2013 is a copy of a retainer agreement. At the hearing, the existence of the retainer agreement was not disputed by Mr. Legault.

[6] Ms. Herman takes issue with the contents in Mr. Legault’s affidavit. I have concluded that it is not necessary to review Ms. Herman’s affidavit in detail nor to comment on the areas that she takes issue with statements contained in Mr. Legault’s affidavit.

[7] The law in this area is clear.

[8] Pursuant to s. 3 of the Solicitors Act, R.S.O. 1990, c. S.15, (the “Act”) a client has one month from the date of delivery of the bill to requisition its assessment. In the event that 12 months pass since an account has been delivered, the client has to demonstrate “special circumstances” in order to satisfy a court that an assessment should be directed. See s. 4 of the Act and Burt v. Johnstone, (1996) 1 C.P.C. (4th) 319 (Ont. Ct. J.).

[9] Among the factors which have been considered when determining whether or not special circumstances exists, are the sophistication of the client, the adequacy of communications between the solicitor and the client concerning the accounts, whether there is overcharging for the services provided, the level of details in the bills, whether a solicitor-client relationship still exists or whether payments made could be characterized as involuntary. See Katana v. Dockrill 2008 CarswellOnt 1708 (Ont. C.A).

[10] I accept that the onus is on Mr. Legault to demonstrate that special circumstances exist in order to seek leave to assess the accounts. See Wachmenko v. Contro Trebb Scott Hurotubise LLP (2010) 2010 ONSC 2687, 85 C.C.L.I. (4th) 68 (Ont. S.C.J.).

[11] In argument, I invited Mr. Legault to address the issue of “special circumstances”. In response, Mr. Legault indicated that he makes a modest living and had to take time off work to attend in court on the day of the hearing. In my view, the comments of Mr. Legault do not constitute “special circumstances” of the kind referenced in Katana, supra.

[12] In this case, the record establishes that:

(a) Mr. Legault signed a retainer agreement where he was aware of and agreed to the hourly rate of $400 per hour;

(b) Detailed accounts were rendered;

(c) Mr. Legault paid his accounts without objection or complaint at the time;

(d) there are no particulars provided with respect to deficiencies and the services rendered;

(e) Mr. Legault failed to identify any specific overcharging in the accounts or that the fees were unreasonably high;

(f) there was no explanation or reason provided as to why he waited so long to seek an assessment of the accounts.

[13] In my view, Mr. Legault has not demonstrated that “special circumstances” exist that would cause me to direct an assessment of the accounts.

[14] In the result, the application is dismissed, together with costs payable by Mr. Legault to Ms. Herman in the amount of $1,500 inclusive of disbursements and HST.

MORAWETZ R.S.J.

Date: January 9, 2014