SUPERIOR COURT OF JUSTICE – ONTARIO
RE: J. Dannial E. S. Baker, Applicant
AND:
Susan W. Garfin, Respondent
BEFORE: Carole J Brown J
COUNSEL:
J. Dannial E. S. Baker, representing himself
Bernard Gasee, for the respondent
HEARD: January 23, 2014
ENDORSEMENT
Introduction
1The respondent, Susan Garfin, seeks an order setting aside or dismissing an order obtained on praecipe dated June 13, 2012 and a subsequent order made by the assessment officer at a preliminary assessment, on the grounds that:
the account was billed after the limitation period expired;
the appointment and order for assessment are contrary to the Solicitor’s Act;
the assessment must be heard by a Judge as the retainer terms are in dispute which was not disclosed to the Registrar at the time of the assessment.
Background
2The parties are both lawyers whose offices are located near one another in the same office building, located at 393 University Avenue in Toronto. The applicant was retained by the respondent to represent her in a collection file brought by her as against a former client, Crossen, against Crossen's husband, Mirkopolous.
3The retainer was verbal, but both parties agree that the applicant was to be paid fees for his services if costs were awarded to Ms. Garfin at trial. Pursuant to the agreement, Ms. Garfin was to pay all disbursements incurred in the collection file.
4The applicant represented Ms. Garfin at the trial which proceeded December 11, 13-14, 18, 2007 and January 8-10, 14-15, 17, 21-22 and 24-25, 2008. The respondent submits that Mr. Baker quit on January 9, 2008. Mr. Baker submits that he was terminated by Ms. Garfin on that date. While the judgment of MacDonald J states that Mr. Baker acted for Ms. Garfin until January 10, 2008 when Ms. Garfin discharged him and represented herself, Ms. Garfin states that she gave that explanation in open court due to the fact that she did not want to disclose what had actually occurred. While there is a significant discrepancy in this evidence and the reason for Mr. Baker's not continuing with the trial, I accept the indication contained in the decision of MacDonald J as what occurred.
5While Mr. Baker acknowledges that their original agreement was that he would be paid whatever costs were recovered on the lawsuit, and that no costs were recovered, it is his contention that if he had not been taken off the file, he would have won the action and would certainly have then been paid. That assertion is entirely speculative.
6In any event, the respondent was not successful at trial and no costs were awarded to her. On appeal, the Court of Appeal dismissed the costs claim on May 22, 2009 and no costs were awarded to Ms. Garfin. Accordingly, pursuant to the oral retainer agreement between the parties, Mr. Baker would not have been entitled to payment of any fees.
7Mr. Baker conceded on cross-examination on his affidavit that they did not discuss what would occur if his retainer were terminated. However, the account which is the subject of the assessment and this motion is, according to Mr. Baker’s submissions, based on quantum meruit, to which he is entitled pursuant to law.
8Mr. Baker did not, thereafter, render an account to Ms. Garfin for his services, which is consistent with the terms of the oral agreement on which the parties agree. It is the position of Ms. Garfin that not receiving an account did not surprise her, as she had not been awarded costs and pursuant to the retainer agreement, Mr. Baker would not have been paid.
9On June 15, 2011, Mr. Baker delivered his first and only account, almost three years after judgment was rendered and more than two years after the Court of Appeal decision.
10It is the position of Mr. Baker that he did not render an account sooner as Ms. Garfin told him she would go bankrupt if he rendered an account. He further indicates that she told him that he could use her condominium in Hawaii whenever it was not rented or being used by her, which caused him to refrain from rendering any account based on that consideration. It was further the evidence of Mr. Baker on cross-examination that he rendered the account in June of 2011 out of anger after the plaintiff allegedly reneged on the said agreement that he could use her Hawaiian condominium. There is no evidence as regards this "side agreement".
11The account finally rendered was "Re: Garfin ats Crossen and Mirkopolous". The bill stated only:
"To my professional services rendered herein in connection with the above-noted matter".
12The account was for $25,000 plus HST for a total of $28,350.
13The account contained no detail or itemized account of services rendered, nor any dates of services rendered. It was not signed.
14There were no disbursements charged, which is consistent with Ms. Garfin’s evidence that, pursuant to the retainer agreement, she was to pay all disbursements incurred on an ongoing basis. While there is no evidence to indicate that disbursements were paid by her on a running basis, there is no argument regarding any disbursements owing, and therefore this is not in issue.
15The applicant did nothing to pursue Ms. Garfin for payment of the account, nor were any follow-up accounts or reminders regarding payment of the June 15, 2011 account issued by Mr. Baker. Instead, on June 13, 2012, almost one year later, he obtained an order of the Registrar on praecipe for the assessment of the account.
16On October 15, 2012, Mr. Baker also obtained a date for the preliminary assessment, which was scheduled to be held over a nine-day period, in May of 2013. Mr. Baker further advised the assessment officer that he would be amending his account from $25,000 to approximately $200,000. The assessment was to be rescheduled. The original account has never been amended to increase the fees.
Analysis
The Solicitor's Act
Analysis
17Pursuant to the Solicitor’s Act, s. 3, an order for an assessment on requisition may be obtained from the local Registrar where the retainer of the solicitor is not disputed and there are no special circumstances. No action may be brought for the recovery of fees until one month after delivery to the client of a bill, subscribed with the proper hand of the solicitor has been delivered to the client. Pursuant to the Act, the solicitor's bill of fees is sufficient in form if it contains a reasonable statement or description of the services rendered with a lump sum charge therefore and, in any action upon an assessment of a bill, if it is deemed proper, further details of the services rendered may be ordered.
18The caselaw indicates that, in the event that there are multiple clients or multiple files, a solicitor must show that the work done and charged for relates to a specific client or file: Plater v Arenson, 1999 2382 (ON CA), [1999] O.J. No. 2352, 37 CPC (4th) 1 (Ont. C.A.).
19The date the cause of action for unpaid legal work arises is upon completion of the work or services. A lawyer cannot indefinitely extend the limitation period by postponing delivery of the bill. However, where the bill is only interim and not final, the limitation period pursuant to s.3 of the Solicitor’s Act runs from the date of the final account. It is a question of fact as to whether the prior account or accounts are to be considered final for purposes of the limitation period for seeking assessment.
Was the Assessment Order Properly Obtained?
Was the Assessment Order Properly Obtained?
20In this case, Mr. Gasee, counsel for Ms. Garfin, argues that the bill rendered by Mr. Baker was not proper, that the assessment order was obtained improperly without disclosure as to the fact that the retainer terms were in dispute and that special circumstances may exist. He argues that said order should be set aside. He further argues that the limitation period has been surpassed. He argues that the bill was rendered four years after the work was completed or, if one is including the appeal of the trial, which was not handled by Mr. Baker, two years after that decision was rendered. Moreover, he argues that the bill lacked any detail as regards the work done, as required pursuant to s.2(3) of the Act, that it was unsigned, that there was no date that would permit the Registrar to determine when the services were actually rendered and whether the limitation period had been respected.
21Mr. Baker argues that the limitation period has not expired, that there were special circumstances which would extend the limitation period, and that, as he intended to increase the amount of the account rendered to $200,000, this was only an interim and not a final billing, and therefore the limitation period had not expired. Mr. Baker further argues that the account did not require detail of services rendered or a signature, and that the requisition had been properly obtained.
22Mr. Baker argues that the retainer by Ms. Garfin was a broad retainer which is ongoing. He submits that he was retained on other matters including a collection matter against the law firm of Smith, which also involved Crossen. He asserts that the subject bill was rendered with respect to numerous Crossen files, and not only the one referable to the trial and appeal. He states that the bill rendered on June 15, 2011 was not just for the trial for which he was retained on April 7, 2007, but was a running bill regarding his ongoing retainer and, therefore, no limitation period has begun to run as regards accounts rendered to Ms. Garfin. He points to the indication of "Crossen and Mirkopolous" in the re line, and argues that this indicated that it was for more than one matter. However, the subject or re line actually states "Re: Garfin ats Crossen and Mirkopolous", and the account as rendered is "for my professional services rendered herein in connection with the above-noted matter". I find that this references the trial, for which he represented Ms. Garson for 6 of the 14 days. I am of the view that the re line does not reference other matters. The bill specifically states that it is for the above-noted "matter", in the singular. There is no detail as regards any other files. I find, based on his own bill rendered, that the subject bill was not rendered for any other matters, but only the one referenced and that, based on the original agreement, which was not amended, Mr. Baker was not entitled to any fees in any event. I further find that the bill was a final bill and not an interim bill, and that, as such, was rendered beyond any applicable limitation period.
23As regards the failure to render a detailed account, Mr. Baker argues that he could not render a detailed account as he did not have the files to review, which are in Ms. Garfin's possession. However, in cross-examination he admitted that he had and still has on file on his computer portions of that file, and that he copied to a thumb drive some of that file which he thereafter gave to Ms. Garfin.
24I find that the account rendered was deficient as it did not contain any reasonable statement or description of the services rendered, nor any dates on which they were rendered. I do not accept Mr. Baker's explanation that he was unable to provide any statement or description of the services rendered due to the fact that he did not have the entire file at his disposal. He did admit in cross-examination that he had portions of the file on his computer and copied onto a thumb drive. I note, as well, that he could have accessed the court file and the documents filed therein, had he so wished, which along with the portions of his file stored on computer, would have permitted him to render a detailed account. He did not do this.
25It is clear from Mr. Baker's own admissions in cross-examination that he rendered the account because he was angry with Ms. Garfin for not permitting him to use her Hawaiian condominium. I do not find this a sufficient reason for rendering the bill, in all of the circumstances of this case, and in light of the original agreement which would have given Mr. Baker nothing upon completion of the trial and appeal. It is, in my view, unseemly that he would now seek an amount for payment of fees which is substantially beyond anything he would have received pursuant to the original agreement. While he asserts that had he been permitted to continue with the trial, he would have been successful in winning the trial and obtaining costs for Ms. Garfin, such that he would have been paid, I find this to be pure self-interested speculation and do not accept that argument.
26Mr. Gasee further argues that obtaining the assessment order was improper as Mr. Baker is now disputing the retainer and argues that there were special circumstances for delaying the rendering of the account, namely Ms. Garfin's offer to let him use the Hawaii condominium, on which she later reneged. There is no sufficient nor persuasive evidence as regards this "side deal".
27Mr. Baker now seems to dispute the retainer as regards the original agreement that he would only be paid if costs were awarded to Ms. Garfin, and now asserts that he is entitled to fees, on the basis of quantum meruit pursuant to law. I note his acknowledgment that there was no discussion as to quantum meruit in the event that his retainer was terminated. There is no evidence to indicate that he brought any such dispute to the attention of the Registrar pursuant to s.3 of the Act.
28There is no evidence to suggest that the Registrar was made aware of any dispute as regards the retainer, nor of any "special circumstances" as regards the granting of the assessment order as required by s.3 of the Solicitor's Act.
29I find that the obtaining of an assessment on requisition was improper, and that the assessment order should be set aside. I further find that the bill itself is unfounded, based on the evidence before me and the agreement struck by the parties.
30I order that the Registrar's order for assessment on requisition be set aside and that the nine-day scheduled assessment be vacated.
Costs
31I make no order as to costs. The parties will each bear their own costs.
Carole J. Brown J.
Date: February 19, 2014