Skeggs v. Aloe-Gunnell, 2015 ONSC 2743

CITATION: Skeggs v. Aloe-Gunnell, 2015 ONSC 2743

COURT FILE NO.: 26102/13

DATE: 20150427

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Frederick J. Skeggs Solicitor

– and –

Valve Aloe-Gunnell Client

Paul Skeggs, for the Solicitor

Neal H. Roth, for the Client

HEARD: April 23, 2015

decision on motion

A. D. KURKE J.

Overview

[1] Valve Aloe-Gunnell (“the Client”) applies to oppose confirmation of the Report and Certificate of Assessment dated November 29, 2013 of Robert J. Girard, Regional Hearings Officer. The Hearings Officer held that the total owing by the Client to Frederick J. Skeggs (“the Solicitor”) was $30,692.77. With adjustments made for retainer, payment received, and pre-judgment interest, the Hearing Officer’s Report issued for $21,227.64 payable to the Solicitor. In addition, the Hearings Officer fixed costs at $750 and disbursements of $144 payable to the Solicitor relating to the Assessment itself.

[2] The Client seeks to have the Decision of the Hearings Officer revoked, and the Report and Certificate set aside, and an Order that the monies already paid by the Client be deemed to satisfy the account of the Solicitor. She also seeks to set aside the Writs of Seizure and Sale and Notices of Garnishment that had been issued by or on behalf of the Solicitor, in reliance on the Report and Certificate of the Hearings Officer. In addition, she asks for costs on this Motion.

[3] The Client asserts that she was denied natural justice during the course of the Assessment, in that she was not given a fair opportunity to present her case. She puts forward as well various other grounds, claiming errors by the Hearings Officer in dealing with evidence, in fact finding, in not requiring more detailed proof from the Solicitor to substantiate his account, and in understanding and weighing the factors that go into a proper taxation of the Solicitor’s account.

[4] I conclude that the Client must succeed on the ground that she was denied natural justice at the hearing, and I therefore I set aside the Hearing Officer’s Report and Certificate of Assessment, and the Writs of Seizure and Sale and Notices of Garnishment that are based on them. I need not address the other grounds, as I am directing that a new Assessment take place, before a different Hearings Officer. My reasons for so finding and ordering are set out below.

Background

[5] The Transcript of Proceedings before the Hearings Officer on October 8, 2013 is found at Tab 4 of the Client’s Motion Record. At the opening of the hearing (page 2 of the transcript), the Hearings Officer explained to the self-represented Client that at the hearing, the Solicitor would give evidence, and then the Client could do so. This could be followed by Reply evidence from the Solicitor, “and then both sides are permitted to give an argument, following which I must make a decision…”.

[6] But that is not what happened. During the course of the Client’s evidence, the following exchange took place between Client and Hearings Officer, after the Solicitor asked the Client, “Are you going to wrap this up or are you just repeating yourself?” (pages 31-33):

MS. ALOE: All right. Am I able to provide you with copies of the offer and the settlement leave I gave to – I sent to Mr. Skeggs? The reason that is important is because when I actually went through the numbers and figured out what I believe is fair to pay, that that shows how I – you know – on the statement how I did that and what number I came up with at the end of the day which I felt should be the balance of his statement. That’s the reason I’m asking whether I can pass that to you.

THE COURT: No, you can’t.

MS. ALOE: You [sic] can’t.

THE COURT: No.

MS. ALOE: Okay.

THE COURT: Anything else, Ms. Aloe?

MS. ALOE: So, what I determined should be the balance after there’s an accurate billing on this and after that period….

THE COURT: That’s my decision to make. I don’t want to hear your comments on that.

MS. ALOE: Oh, you don’t want to know what that is.

THE COURT: No.

MS. ALOE: Okay. That was my next question, whether you wanted to know.

THE COURT: What you’re doing right now is you’re giving me, which is normal in these circumstances when a self-represented person is before me, is that you gave evidence, which is fine, and you’re also giving closing arguments.

MS. ALOE: Okay.

THE COURT: Okay. So, in order to continue the protocol for the assessment, Mr. Skeggs, any cross-examination of the client?

MR. SKEGGS: I have none, no.

[7] The Hearings Officer then asked the Solicitor whether he had any reply evidence, and the Solicitor offered further testimony.

[8] Taking into account that the Client was representing herself, it is my respectful view that the Hearings Officer should have taken additional steps to determine whether the Client had any further evidence to offer, other than her “comments” about what the appropriate amounts of the bill should be. The Hearings Officer had a duty to offer assistance to ensure that the self-represented Client had a fair opportunity to present her case to the best of her ability, but took few or no steps to assist her to do so: Toronto-Dominion Bank v. Hylton, [2010] O.J. No. 4725 (C.A.), at para. 39; C.I.B.C. v. Rajshree Prasad, et al., 2010 ONSC 320, at para. 10(b).

[9] And indeed, given the nature of the Offer to Settle, as described by the Client, the Hearings Officer should also have explained to the Client that she could base her submissions at the end of the hearing on the document that she had produced, even if the Court refused to accept the document itself.

[10] After the Reply evidence of the Solicitor, in the course of which he made several allegations about the Client’s credibility and reliability, and threatened that she‘s “going to bite off a lot more than you chew” if she brought an application against him for negligence, the Solicitor concluded with (pages 33-34):

I have one more word, sir. It’s a good reason why lawyers should be careful in the clients that they choose. I should have know [sic]. A woman who goes through five lawyers on the same file.

THE COURT: Okay, sir, please.

MR. SKEGGS: Sues her sister and her brother. Thank you. That’s all I have to say.

[11] Such commentary, as the Hearings Officer can be taken to have observed, based on his interjection, stretched the bounds of propriety in a quasi-judicial proceeding. The last words of a litigant at the proceeding were those of the Solicitor, as described above. Following that acerbic commentary, the Hearings Officer merely stated his intention to reserve on his decision, and asked the parties for their contact information.

[12] The audi alteram partem rule, the right to be heard, is a principle of natural justice. Even if not explicitly mentioned in the legislation that empowers a statutory tribunal to act, the right to be heard is fundamental to all hearings. It includes the right to offer evidence, to cross-examine, and to make submissions. If a party is altogether deprived of that right, in a context where the exercise of that right is essential to fairness in the adversarial setting, the party is deprived of natural justice, and the decision made in breach of that right cannot stand: R. v. J.V., 2002 49650 (ON SC), [2002] O.J. No. 1027 (Sup. Ct.), at paras. 97-102; Supermarches Jean Labrecque Inc. v. Flamand, 1987 19 (SCC), [1987] 2 S.C.R. 219, at paras. 46-75.

[13] The failure to permit the Client to make submissions on the hearing not only violated the protocol set out by the Hearings Officer at the commencement of the hearing, but also deprived the Client of natural justice at the Assessment.

[14] In this case, the Hearings Officer in fact told the Client that he did not want to hear the Client’s comments on the balance owing after an accurate billing, as that was his own “decision to make.” The purpose of submissions, of course, is to explain to the decision-maker how one’s evidence should be assessed, to address legal principles, and to attempt to affect the decision that is to be made. While submissions made during the giving of evidence can be discouraged, the manner in which it was done here can only be interpreted as marginalizing or eliminating the Client’s right to be heard on the ultimate issue at the hearing.

[15] The Solicitor’s concluding comments have been set out above, and perhaps can be taken to be his overarching view of the case, and stand in for his closing submissions. On the other hand, the Client was accorded no right to make any Submissions at all. In the absence of the opportunity to comment on what might be perceived as a lapse in a solicitor’s duty of civility to another party and the Court, how could an unrepresented party not feel that an unfair impression must have been left with the Hearings Officer, and that the decision reflected that impression?

[16] In addition, binding authority sets out factors to be applied by an assessment officer in assessing a solicitor’s account: Cohen v. Kealey and Blaney (1985), 26 C.P.C. (2d) 211 (Ont. C.A.):

(a) the time expended by the solicitor;

(b) the legal complexity of the matters to be dealt with;

(c) the degree of responsibility assumed by the solicitor;

(d) the monetary value of the matters in issue;

(e) the importance of the matter to the client;

(f) the degree of skill and competence demonstrated by the solicitor;

(g) the results achieved;

(h) the ability of the client to pay; and

(i) the client's expectation as to the amount of the fee.

See also McKelvey, J. in Nicoletti v. Tibollo, 2013 ONSC 6217, at para. 25. The Hearings Officer was aware of these factors; he lists them at paragraph 5 of his decision.

[16] The Hearings Officer heard the Client’s evidence on at least the terms of her retainer agreement with the Solicitor, and eliminated block fees for court days from the account (para. 12). However, it cannot be said with any kind of assurance that he attended to her evidence and views on any of the nine factors set out above. To the contrary, the Hearings Officer’s decision is structured around a consideration of the factors, but no factor particularly indicates any account being taken of the Client’s often detailed evidence. One of the purposes of submissions, a purpose required by natural justice, is to permit a party to ensure that the decision-maker understands the relevance and weight of the evidence that has been presented. In this case, the Client needed to be heard, and was not.

Conclusion

[17] Accordingly, I order that the Report and Certificate of Robert A. Girard on the Solicitor’s account with respect to the Client, dated November 29, 2013, be set aside, and that the matter be remitted back for a new hearing before a different Hearings Officer.

[18] As it is common ground that the Writs of Seizure and Sale and Notices of Garnishment procured by the Solicitor to secure collection of his account hinge on the legal effect of The Hearing Officer’s Report and Certificate, they too are set aside.

[19] If the Client and the Solicitor are unable to agree as to costs of this motion, they may file written submissions of no more than three pages within thirty days.

A. D. KURKE J.

Released: 20150427