ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-13-004905-11
DATE: 20141001
BETWEEN:
COLMVEST HOLDINGS CORP.
Applicant
– and –
KRAMER SIMAAN DHILLON LLP
Respondent
Jeffrey Radnoff, for the Applicant
Alexander Minkin, for the Respondent
HEARD: April 3 and June 27, 2014
b. p. o’marra j.
reasons for judgment
overview
[1] The applicant Colmvest (the “client”) seeks an order assessing two of the respondent solicitors’ accounts. The client also seeks an order sealing this proceeding. The respondent solicitors oppose the sealing order and the referral of the account dated June 2, 2011 (Account 15311) for assessment. The solicitors do not oppose the referral of the account dated March 18, 2013 (Account 350).
[2] The chronology is as follows:
On June 3, 2011, the solicitors provided the client with a bill of costs for Account 15311 in the total of $58,693.54.
On June 26, 2011 the solicitors emailed the arbitrator (of the dispute for which Account 15311 was rendered) to advise him that they had ceased acting for Mr. William Meany who was the principal of the applicant. The solicitors also advised that they would assume an advisory role for the remainder of the arbitration.
On June 28, 2011 the client and the solicitors settled Account 15311 for $40,000.00. The client argues that this was an interim account. The solicitors disagree and submit it was a final account.
On February 23, 2013, Mr. Meany asked the solicitors (specifically Mr. Kramer) to argue a submission in front of the arbitrator. The solicitor agreed.
On February 25, 2013 the solicitors requested and received from the client a retainer of $12,500.00.
On February 28, 2013 the solicitors informed the arbitrator that Mr. Meany had retained them to present a particular submission. The arbitrator informed the other parties about a possible conflict of interest arising from his ongoing working relationship with Amandeep Dhillon, a lawyer who had left but since returned to the solicitor’s law firm.
On March 18, 2013 the solicitors requested payment from Mr. Meany for the amount by which Mr. Kramer’s services since February of that year had exceeded the initial retainer of $12,500.00. This was Account 350. The amount was $8,929.89. The client denied that he received this request.
On April 12, 2013 the arbitrator ruled that the solicitors must withdraw from representing Mr. Meany at the arbitration due to Mr. Dhillon’s relationship with the arbitrator.
On May 6, 2013 the solicitor sent a second email to Mr. Meany requesting payment of Account 350. The client maintains that he did not receive this request either.
On June 8, 2013 in response to a third email request, Mr. Meany informed the solicitors that he would not pay Account 350 and further that he expected the solicitors to both return the $12,500.00 retainer and indemnify him against certain arbitration costs.
On June 20, 2013 the solicitors commenced a Small Claims Court action against Mr. Meany for the $8,929.89 remaining on Account 350.
On September 27, 2013 the solicitors obtained an order for substituted service of the statement of claim.
On October 8, 2013, Mr. Meany received the Small Claims Court action initiated by the solicitors. The client maintains that this is the first time that he had received a copy of Account 350.
On October 10, 2013 the client obtained a registrar’s order referring Account 350 to an assessment officer.
On October 15, 2013 the Honourable Justice Thomson ordered that the solicitor’s Small Claims action be stayed pending the completion of the assessment of Account 350.
On December 2, 2013 the respondent brought a motion to set aside the registrar’s order. This motion was adjourned until January 22, 2014.
On January 22, 2014, Master Muir adjourned the motion again based on the client’s undertaking to bring a motion to a judge for an order that Account 350 be referred for assessment.
On April 3, 2014 the client served a cross motion for an order that both Account 350 and Account 15311 be referred for assessment and for an order sealing the proceedings.
The solicitors do not oppose the referral of Account 350 for assessment. However, that account is relevant to the extent that the date on which it was rendered may or may not support the client’s position regarding the assessment of Account 15311.
position of the parties
[3] The applicant submits the following:
(a) public confidence in the administration of justice requires the Court to order the referral of Account 15311 for assessment
(b) its right to assessment should not be taken away except in compelling circumstances
(c) a sealing order ought to be granted to protect solicitor/client communications; and
(d) the underlying cause of action (the arbitration)has already been ordered sealed by the Court
[4] The respondents submit the following:
(a) the applicant and Mr. Meany are not entitled to an assessment of Account 15311
(b) the applicant must establish special circumstances to refer a paid bill for assessment and this requirement also applies to paid interim accounts
(c) although the Court has inherent jurisdiction to assess accounts paid more than 12 months prior, this is limited to circumstances amounting to fraud or gross misconduct
(d) the applicant has not led any evidence of special circumstances, fraud or gross misconduct
(e) Account 15311 is not an interim account in any event. It is an earlier retainer that had been terminated
(f) The applicant and Mr. Meany agreed to settle Account 15311 and received consideration in the form of a reduced payment; and
(g) The applicant has failed to satisfy the test for a sealing order set out in Sierra Club of Canada, 2002 SCC 41 at paragraph 40.
analysis
(a) assessment of account 15311
[5] The rendering of legal services and the determination of appropriate compensation for those services is not solely a private matter to be left entirely to the parties. There is a public interest component relating to the performance of legal services and the compensation paid for them. That public interest component requires the court to maintain a supervisory role over disputes relating to the payment of lawyer’s fees. Apart from the Solicitors Act, a Superior Court has an inherent jurisdiction as part of its disciplinary authority over lawyers to direct the assessment of lawyers’ fees.
Plazavest Financial Corporation et al. v. National Bank of Canada et al. 2000 5704 (ON CA), [2000] O.J. No. 1102 (C.A.) at paras. 14 and 15.
Solicitor, Re (1930) 1930 371 (ON SC), [1931] 1 D.L.R. 315 (Ont. C.A.).
[6] Under the Solicitors Act the availability of assessment depends on a number of different factors, including whether there was “an undisputed retainer, the timing of the delivery of the account, whether the account is an interim or final account, whether the account is paid or unpaid, and the timing of payment of the account”.
Fiset v. Falconer [2005] O.J. No. 4023 (S.C.J.) at para. 30.
[7] Assessment after payment is the exception rather than the rule. In determining whether to order an assessment the Court has a broad discretion to be exercised on a case-by-case basis and with an eye to all of the relevant circumstances.
Plazavest, at para. 33.
[8] There is a rebuttable presumption that if a client pays an account it is a reasonable account. When an account has been paid the client must show “special circumstances” to justify an assessment of the account.
Fiset, at para. 31.
[9] In the matter before this Court there is no evidence of issues regarding payment. Nor is there any evidence of impropriety or irregularity of billing. There is also no evidence that the client has disputed the bill all along. The client has provided no evidence of special circumstances regarding Account 15311.
[10] The client’s displeasure with the arbitrator’s order is not a special circumstance sufficient to justify referring the account for assessment.
[11] The client, however, submits that Account 15311 was in fact an interim account. According to the client the date for assessing interim accounts runs from the date of the final account and the final Account 350 is less than 12 months old. There is no need to show special circumstances.
[12] The client is correct that the limitation period for the assessment of interim accounts rendered in connection with the same matter runs from the date of the final account.
Price v. Sonsini (2002) 2002 41996 (ON CA), 60 O.R. (3d) 257 (C.A.) at para. 15.
[13] The distinction between an interim and final account is a question of fact.
Fellowes, McNeil v. Kansa Canadian Management Services Inc. (1997) 1997 733 (ON CA), 34 O.R. (3d) 301 (C.A.) at para.7.
[14] Evidence of continuity and the possibility of future variants of an account would support a finding that the account was an interim account. An account rendered during an ongoing matter will be a final account if it was clear that the amount of the account was not provisional and subject to later adjustment.
Fiset, at para. 26.
[15] In this case Account 15311 was neither provisional nor subject to later adjustment. The parties had settled the account for an amount less than that originally submitted and ended the retainer. The solicitor subsequently notified the arbitrator that they would no longer be acting for the client. It was not until some 20 months had passed that the client asked Mr. Kramer to argue a motion before the arbitrator. The client signed a new retainer for the motion.
[16] In these circumstances, Account 15311 was not an interim account. I decline to refer Account 15311 for assessment.
the sealing order
[17] Court documents and civil proceedings are accessible to the general public subject to a court order that they be treated as confidential and sealed.
Courts of Justice Act, s. 137(2), R.S.O. 1990.
[18] Sealing orders should only be granted where:
(a) such an order is necessary in order to prevent a serious risk to an important interest, including a commercial interest, in the context of litigation, because reasonably alternative measures will not prevent the risk; and
(b) the salutory effects of the confidentiality order, including the effects on the right of civil litigants to a fair trial, outweigh its deleterious effects, including the effects on the right to free expression, which in this context includes the public interest in open and accessible court proceedings.
Sierra Club of Canada, at para. 53.
[19] It is up to the person seeking the sealing order to demonstrate a public interest that outweighs the public interest in openness.
Philion v. Lemieux, 2007 ONCA 281 at para. 30.
[20] Courts are generally more willing to grant sealing orders on the basis of solicitor/client privilege, which is a fundamental tenet of our legal system and integral to the administration of justice.
R. v. Cunningham v. Lilles 2010 SCC 10 at para 26.
[21] The materials filed on this application include detailed legal bills and numerous emails exchanged between the client and solicitors. These are presumptively privileged documents and properly the subject of a sealing order. The presumption can be rebutted by evidence that the requested information is not linked to the merits of the case and its disclosure will not prejudice the client.
Maranda v. Richer, 2003 SCC 67, [2003] 3 S.C.R. 193 at para.33.
Kaiser, Re 2012 ONCA 838 at para. 9.
[22] Furthermore, given the volume and detail of bills and emails in this case, “there is a reasonable possibility that the assiduous inquirer, aware of background information available to the public, could use the information requested concerning the amount of fees paid to deduce or otherwise acquire communications protected by the privilege”.
Ontario (Attorney General) v. Ontario (Assistant Information & Privacy Commissioner), 2005 6045 (ON CA), 197 O.A.C. 278, at paras. 12 and 13.
[23] A sealing order in this matter does not restrict the rights and obligations of the parties to material filed in the proceeding. The order solely relates to public access to documents protected by solicitor/client privilege.
result
On consent, account 350 dated March 18, 2013 is referred for assessment.
The application to refer account 15311 dated June 2, 2011 for assessment is dismissed.
The material and all evidence on this proceeding including this decision is ordered sealed subject to a further order of the Court.
[24] I will consider brief costs submissions (no more than three pages) to be filed within 15 days.
B. P. O’Marra J.
Released: October 1, 2014
COURT FILE NO.: CV-13-004905-11
DATE: 20141001
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
COLMVEST HOLDINGS CORP.
Applicant
– and –
KRAMER SIMAAN DHILLON LLP
Respondent
REASONS FOR JUDGMENT
B. P. O’Marra J.
Released: October 1, 2014