Dekeyser Estate v. James B. Curran Professional Corporation, 2015 ONSC 381
COURT FILE NO.: 12-55592
DATE: 2015/01/20
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
CAROLANN CLARK and the ESTATE OF ROLAND M.C. DEKEYSER
Applicants
– and –
JAMES B. CURRAN TIERNEY STAUFFER, LLP
Respondent
Self-Represented
Philip W. Augustine, for the Respondent
HEARD: January 16, 2015 (at Ottawa)
DECISION ON LEAVE TO TAX ACCOUNTS
LALONDE J.
[1] This application was commenced by Carolann Clark who is seeking leave to have her accounts for legal work done by James B. Curran assessed by a taxing officer.
[2] I grant an order amending the style of cause as follows:
Carolann Clark and Juliane Grieve, Executrices of the Estate of Roland M.C. Dekeyser, deceased, Applicants
and
James B. Curran Professional Corporation, Respondent
[3] This Court orders for the reasons that follow, that this application shall be dismissed with costs of this proceeding which are awarded in favour of the Respondent, James B. Curran Professional Corporation payable by the Applicants Carolann Clark and Juliane Grieve and/or the Estate of Roland M.C. Dekeyser in the amount of $8,000 within 30 days.
OVERVIEW
[4] In October, 2009, the Respondent James B. Curran (Mr. Curran) was retained by Carolann Clark and Juliane Grieve to act on their behalf in respect of matters involved in the Estate of Roland Dekeyser, deceased. Carolann Clark is the common law spouse of the deceased and Juliane Grieve is the daughter of the deceased.
[5] James B. Curran is the principal owner of James B. Curran Professional Corporation. All parties have agreed to the change in the style of cause.
[6] The work to be done by Mr. Curran involved a partnership file that addressed the entitlement of the Estate in a tobacco industry endeavour and a second litigation file commenced in February, 2011, involved the collection of monies advanced to a relative of the deceased. That second file was resolved and all parties were satisfied with the result such that Mr. Curran’s work in that file is no longer part of these proceedings.
ISSUE
[7] Can an application for leave to have the accounts of Mr. Curran taxed, be granted? As stated above the answer is “no”.
[8] I am only concern with a narrow issue and it involves deciding if the Applicants are out of time to have Mr. Curran’s account for work done in the partnership file, assessed and taxed.
ANALYSIS
[9] I heard verbal submissions from both parties. The Applicants argued that Mr. Curran’s accounts were dated February 14, 2001, but Carolann Clark argued that she only received the accounts on October 18, 2011, and that she remembered that because she received a letter from Mr. Curran’s solicitor two days later. As a result, she claims that she did not go over the prescribed limit set out in the Solicitor’s Act, R.S.O. 1990, c. S.15.
[10] Sections 3 and 4 of the Solicitor’s Act read as follows:
Order for assessment on requisition
- Where the retainer of the solicitor is not disputed and there are no special circumstances, an order may be obtained on requisition from a local registrar of the Superior Court of Justice,
(a) by the client, for the delivery and assessment of the solicitor’s bill;
(b) by the client, for the assessment of a bill already delivered, within one month from its delivery;
(c) by the solicitor, for the assessment of a bill already delivered, at any time after the expiration of one month from its delivery, if no order for its assessment has been previously made.
No reference on application of party chargeable after verdict or after 12 months from delivery
- (1) No such reference shall be directed upon an application made by the party chargeable with such bill after a verdict or judgment has been obtained, or after twelve months from the time such bill was delivered, sent or left as aforesaid, except under special circumstances to be proved to the satisfaction of the court or judge to whom the application for the reference is made.
Directions as to costs
(2) Where the reference is made under subsection (1), the court or judge, in making it, may give any special directions relative to its costs.
[11] Counsel for Mr. Curran ably pointed out that Carolann Clark was mistaken in affirming that she received Mr. Curran’s account in October, 2011, as her application to obtain leave to tax the account was filed with the court in September, 2011. In the absence of other proof as to the time the accounts were received by the Applicants, I am compelled to find that the accounts were issued months before September, 2011. The Applicants did not comply with the mandatory requirement by requesting an assessment within one month of its delivery. This was not done by the Applicants.
[12] Next, on February 7, 2012, the accounts owing by the Applicants to Mr. Curran were paid in full. Here are the particulars:
Fees outstanding from February 14, 2011
$8,050.00
Reduction by Bill Curran
-$1,000.00
Balance $7,050.00
Disbursements $548.28
H.S.T. $640.26
Total $8,238.54
Further account September 28, 2011
$279.96
The $3,959.50 owing was paid off when Mr. Curran transferred an equivalent amount from his trust funds held for the Applicants from the debt collection file
New Balance $8,518.50
Paid by Applicants $4,559.00
New Balance $3,959.50
[13] The balance from the debt collection file on February 10, 2012, was paid out to the Applicants on that date but was never cashed out by the Applicants. Following a verification that such funds are still in the Applicant’s trust they can be applied to the amount the Applicants owe for costs that I am ordering against them.
[14] In Fellowes, McNeil v. Kansa Canadian Management Services Inc. (1997), 1997 733 (ON CA), 34 O.R. (3d) 301, the Ontario Court of Appeal states at para. 4:
The Solicitors Act, R.S.O. 1990, c. S.15 makes no provision for the assessment of accounts paid more than twelve months before the application is made. While the court has inherent jurisdiction to order the assessment of such accounts, that jurisdiction is limited to circumstances amounting to fraud or gross misconduct.
There are no such circumstances in this case and the accounts are not properly referable for assessment.
[15] There are also no special circumstances in this case that would allow me to grant leave to have the accounts taxed after 12 months following the payment of the accounts. Steele J. in Tory, Tory, Deslauriers & Binnington v. Concert Productions International Inc., 1985 CarswellOnt 655, 7 C.P.C. (2d) 54, stated at para. 9 that the mere fact that a solicitor’s account is higher than what was expected does not constitute special circumstances. Such was the case at bar and no other special circumstances were pleaded.
[16] Concerning the Respondent’s fees and disbursements allowed at $8,000 (H.S.T. included), I find that the Applicants are receiving a break. An offer to settle was given to the Applicants to settle this matter for $3,000 in costs before arguing the motion, and well in advance of the date set for argument. This offer was turned down by the Applicants. I could have used my discretion and given the Respondent one hundred percent of its fees at over $10,000. Ignorance of court procedures does not excuse the delays in this file including the six months that the Respondent waited for the appointment of counsel by the Applicants that did not happen. I use my discretion in fixing fees, disbursements and H.S.T. at $8,000.
[17] Finally, I make an order that the proper parties in this case are Carolann Clark and Juliane Grieve, executrices of the Estate of M.C. Dekeyser, deceased as Applicants and James B. Curran Professional Corporation, as Respondent and as was designated on the accounts rendered to the Applicants. I order that this new style of cause applies to this case nunc pro tunc (now as of then).
Lalonde J.
Released: January 20, 2015
CITATION: Dekeyser Estate v. James B. Curran Professional Corporation, 2015 ONSC 381
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
CAROLANN CLARK and the ESTATE OF ROLAND M.C. DEKEYSER
Applicants
– and –
JAMES B. CURRAN TIERNEY STAUFFER, LLP
Respondent
DECISION ON LEAVE TO TAX ACCOUNTS
Lalonde J.
Released: January 20, 2015