CITATION: Davis v. Cox-Kikkajoon et al, 2015 ONSC 1946
COURT FILE NO.: 12374/12
DATE: 20150325
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
JEROME DAVIS
Applicant
– and –
HEIKKI COX-KIKKAJOON and BOLAND HOWE LLP
Respondents
Self-represented.
Heikki Cox-Kikkajoon, for the Respondents.
HEARD: March 19, 2015
R. D. GORDON, R.S.J.
Overview
[1] Before me are two motions arising out of an adjourned assessment of costs. The first is Mr. Davis’s motion in which he seeks the following relief: (1) an Order that the determination of the validity of the Contingency Fee Agreement (“CFA”) be joined with another proceeding which he intends to bring; (2) an Order compelling the Respondents to produce full and detailed disclosure of all disbursements of the settlement funds; (3) an Order compelling full disclosure of all documentation relating to the motor vehicle accident of August 5, 2005 by the insurer Dominion of Canada; and (4) an Order that I determine if the threshold has been met with respect to injuries suffered by him in the accident.
[2] The second is the motion brought by Boland Howe LLP to have Mr. Davis declared a vexatious litigant.
Background
[3] Mr. Davis was injured in a motor vehicle accident on or about August 5, 2005. He was a pedestrian at the time and was struck by a vehicle operated by Christine Gelinas. He sustained several injuries.
[4] Mr. Davis first consulted with the firm Lacroix, Forest LLP concerning the accident and subsequently hired Mr. Patrick Poupore, a personal injury lawyer in Sudbury, to assist him in asserting his claim against Ms. Gelinas and the accident benefits insurers. With respect to the tort claim, a statement of claim was issued and examinations for discovery held. Eventually the matter was set down for trial in April of 2008.
[5] Mr. Davis and Mr. Poupore had a parting of the ways and on July 13, 2009, Mr. Davis signed a new retainer agreement with the firm Boland, Howe LLP. The retainer agreement outlined a contingency fee arrangement and is referred to herein as the first CFA.
[6] Eventually a private mediation was scheduled to take place in Toronto on April 27, 2011. Unfortunately, due to inclement weather, neither the mediator nor counsel for Ms. Gelinas were able to attend as scheduled. That same day, Mr. Davis handed to Mr. Cox-Kikkajoon a Notice of Intention to act in person and ended the retainer. He followed that up by obtaining an order for an assessment of costs.
[7] That costs assessment was settled on September 7, 2011 on the steps of the court house. In the course of their settlement discussions, Mr. Cox-Kikkajoon indicated that his firm would be willing to continue to represent Mr. Davis should he so wish.
[8] On November 2, 2011, Mr. Davis wrote to Boland Howe LLP enclosing another signed retainer agreement which I will refer to as the second CFA. It was on terms identical to the first.
[9] A mediation was scheduled for March 28, 2012. On March 21, 2012 Mr. Davis sent Boland Howe LLP another Notice of Intention to Act in Person and once again severed the retainer. Upon receipt of the notice, Mr. Cox-Kikkajoon contacted Mr. Davis to discuss matters further. Eventually, it was determined that he would continue to represent Mr. Davis as though the notice had not been sent. They attended the mediation on March 28, 2012 and a settlement of the tort claim was reached at $400,000 all inclusive. Mr. Davis signed minutes of settlement. On April 23, 2012 Mr. Cox-Kikkajoon reported to Mr. Davis in writing on the successful completion of the matter and enclosed the firm’s account and a cheque to Mr. Davis for the balance of the settlement funds, namely $260,016.43.
[10] Mr. Davis obtained a Notice of Appointment for Assessment of Costs which eventually found its way to Assessment Officer Robert Girard on July 23, 2013. On that day the Assessment Officer declined an adjournment request by Mr. Davis and proceeded with the assessment. Mr. Davis left part way through the proceedings, ostensibly for medical reasons. Mr. Cox-Kikkajoon gave his evidence and Mr. Girard made an endorsement that if Mr. Davis did not serve and file a motion, Mr. Cox-Kikkajoon would be free to file his submissions after September 30.
[11] On October 1, 2013, Mr. Cox-Kikkajoon received Mr. Davis’s motion seeking, among other things, revision of the second CFA. His motion was brought before Justice L. Gauthier on November 5, 2013 and she made an endorsement that the assessment officer had not made any determination of whether the CFA was fair and reasonable and remitted the matter back to him for that purpose.
[12] On May 21, 2014, the assessment officer found the CFA to be fair and reasonable but endorsed the following:
However, the client does not agree with terms in the event the retainer is cancelled which appears in par. 3 at page 2, end of the 2nd line “In the event…”. I find this falls within the meaning of “Special Circumstances” and as such has to be brought before a judge of the Superior Court of Justice. The assessment hearing is adjourned until the above issue is determined by the court.
[13] The motions before me ensued.
Analysis
The Motion Brought By Mr. Davis
[14] There was a significant procedural irregularity in the material filed by Mr. Davis in that it contained no sworn affidavit. Notwithstanding, I accepted the material and considered it on the basis that he would readily swear to the truth of the documents. I did so in an effort to have this matter disposed of in the most timely and efficient manner possible.
[15] Certain of the relief requested by Mr. Davis can be dealt with summarily. He has asked that the court determine if the threshold has been met with respect to his injuries. In the context of the assessment of the costs of Boland Howe LLP, it is my view that the determination of whether the threshold has been met is of no relevance. This is not a proceeding under the Insurance Act, rather it is a proceeding under the Solicitors Act and the application of the threshold is of no consequence to the issue before me.
[16] Mr. Davis also asks that I order Dominion of Canada to make full disclosure of all documentation in its possession relating to the motor vehicle accident. Again, this request is unrelated to the issue of assessment of costs and is of no relevance to the issues properly before me. Even if the request was relevant to these proceedings, Dominion of Canada has not been provided with the Notice of Motion and has been given no opportunity to argue the matter.
[17] Mr. Davis has asked for an order that Mr. Cox-Kikkajoon produce full and detailed disclosure of all disbursements of the settlement funds. Those details are apparent from the documentation filed on this motion. The settlement funds amounted to $400,000. Of this amount, $14,962.50 was paid to Mr. Poupore in satisfaction of his fees, $125,021.07 was paid to Boland Howe LLP on account of its fees and disbursements (a full listing of disbursements was included in the account), and $260,016.43 was paid to Mr. Davis.
[18] Mr. Davis has asked that these proceedings be joined to a proceeding which he intends to bring against Boland Howe LLP alleging negligence and breach of contract. If what Mr. Davis seeks is an order under Rule 5 of the Rules of Civil Procedure, it is my view that there can be no such order without the other proceeding having been started. Similarly, if the relief sought is under Rule 6 dealing with consolidation of proceedings, the order cannot be made when there is only one proceeding before the court.
[19] The only remaining issue raised by Mr. Davis is the validity of the CFA. Mr. Davis asks that I direct a trial on the issue, but in my view that is unnecessary given the record before me.
[20] Mr. Davis’s sole grievance with the CFA is its failure to include a statement that he retained the right to make all critical decisions regarding the conduct of the matter, as required by Ontario Regulation 195/04. He says that he did not appreciate his ability to make such decisions and therefore mistakenly acquiesced in his lawyer’s determination to settle his case at mediation. The result, he argues, is that the CFA is not fair and reasonable as required by section 24 of the Solicitors Act and must be declared void.
[21] If I were to accept that Mr. Davis was unaware of his ability to make critical decisions regarding the litigation, I would agree that the failure to include the required provision in the CFA would be fatal to it. However, the evidence before me is quite clear that Mr. Davis was fully aware of his right to control this litigation and his retainer with Boland Howe LLP. Mr. Davis, as he has pointed out, is an educated man. Boland Howe LLP was the third firm he had consulted with respect to his accident, and he had earlier dismissed Mr. Poupore because his performance had not expectations. Furthermore, he had regularly indicated his dissatisfaction with the services being offered by Boland Howe LLP and on at least two occasions had effectively dismissed the firm by serving a Notice of Intention to Act in Person. All of this indicates clearly to me his appreciation that any final decision making power was his.
[22] Accordingly, in the circumstances of this case, notwithstanding the failure of the CFA to include a statement that he retained the right to make all critical decisions, the agreement was fair and reasonable.
[23] I accept that Mr. Davis is not satisfied with the settlement of his action. I acknowledge his position that the costs claimed by Boland Howe LLP are not fair and reasonable given the results obtained. Those are not issues which impact on the reasonableness or fairness of the contingency fee agreement itself, but rather on the reasonableness and fairness of the fees which result from the agreement. That issue is one properly left for consideration by the assessment officer, along with all other relevant factors.
The Motion Brought by Boland Howe LLP
[24] An order is sought under section 140 of the Courts of Justice Act that Mr. Davis not be allowed to bring any further proceedings before the court except with leave.
[25] In the case of Lukezic v. Royal Bank of Canada, 2012 ONCA 350, the Court of Appeal held that there is jurisdiction to make such an order only when the request comes before the court by way of application. It held specifically that there is no jurisdiction to grant such an order when the request is made by way of a motion in a proceeding.
[26] It follows that I am without jurisdiction to entertain the motion and it must be dismissed.
Conclusion
[27] The CFA is determined to be fair and reasonable in the circumstances of this case. There are no special circumstances preventing the assessment from being conducted and the matter is remitted back to the assessment officer for completion.
[28] Both motions are otherwise dismissed.
[29] Mr. Davis was unsuccessful with respect to the relief he sought. Boland Howe was unsuccessful in its motion. It is appropriate that there be no order as to costs given this divided success.
R. D. GORDON, R. S. J.
Released: March 25, 2015
CITATION: Davis v. Cox-Kikkajoon et al, 2015 ONSC 1946
COURT FILE NO.: 12374/12
DATE: 20150325
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
JEROME DAVIS
Applicant
– and –
HEIKKI COX-KIKKAJOON and BOLAND HOWE LLP
Respondents
Ruling on motions
R. D. GORDON, R. S.J.
Released: March 25, 2015