Curtis v. Pinto Wray James LLP, 2015 ONSC 4068

CITATION: Curtis v. Pinto Wray James LLP, 2015 ONSC 4068
COURT FILE NO.: CV-13-493046
DATE: 20150623

ONTARIO

SUPERIOR COURT OF JUSTICE

IN THE MATTER OF THE SOLICITORS ACT

AND IN THE MATTER OF:

GARY CURTIS

Applicant

-AND-

PINTO WRAY JAMES LLP

Respondent

BEFORE: F.L. Myers J.

COUNSEL: Gary Curtis in person Tim Gleason for the respondent

HEARD: June 23, 2015

ENDORSEMENT

[1] This motion concerns an assessment of the respondent law firm’s accounts. The assessment hearing was held in February of this year. The Assessment Officer’s decision remains under reserve. Shortly after the assessment hearing finished, the applicant sued the respondent and one of its partners for negligence. The respondent has brought a motion to the Assessment Officer requesting that she stay the assessment and withhold her decision pending the outcome of the new civil litigation. That motion was heard by the Assessment Officer on June 8, 2015. I am told that the Assessment Officer gave some indication that she may endeavour to have her decision on the stay motion released next week. Mr. Curtis therefore asks me to resolve this motion before then for reasons that will become apparent.

[2] I have therefore determined to release reasons relating only to the narrowest ground for resolution of the motion. This allows me to resolve the matter quickly, as requested, and it also avoids pre-judging other arguments that may be made by the parties in another forum. Having said that, had I formed the view that a serious unfairness was being perpetrated on Mr. Curtis, I would not likely be so limited in my reasons.

[3] Mr. Curtis moves for an order striking out the motion brought by the solicitors to stay the assessment. He does so, ostensibly, under rule 37.14 of the Rules of Civil Procedure. That rule enables a party or person who is affected by an order obtained on motion without notice to move to set aside or to vary the order made in his or her absence. The rule applies only to orders made by the registrar, a master, or a judge in lawsuits governed by the Rules of Civil Procedure. Nothing in rule 37.14 authorizes the court to strike out a motion that is currently before an Assessment Officer in an assessment proceeding under the Solicitors Act, R.S.O. 1990 c.S.15. Moreover, even if the rule applied to assessment proceedings, it does not apply to a motion heard in the presence of both parties. Nor does it apply to strike out a motion that is under reserve and has not yet resulted in an order. As rule 37.14 does not apply, the motion is dismissed.

[4] What Mr. Curtis is really doing it trying to appeal from the decision of the Assessment Officer on May 26, 2015 to hold an urgent hearing of the motion to stay the assessment proceeding on May 28, 2015. At that hearing, at which Mr. Curtis did not attend, the Assessment Officer adjourned the stay motion to June 8, 2015 to accommodate Mr. Curtis. On June 8, 2015, Mr. Curtis attended before the Assessment Officer and claimed that he had not been served the motion materials. The Assessment Officer found otherwise. She denied his request for an adjournment. However, she allowed him to make written submissions after the hearing and he has availed himself of that opportunity. Most of the procedural arguments raised by Mr. Curtis before me were also raised by him in his written submissions to the Assessment Officer. The Assessment Officer has yet to rule on Mr. Curtis’s points or on the motion to stay.

[5] An Assessment Officer is the master of her own procedure. Had an appeal been brought under rule 62, I would have declined to hear it pending the determination of the main stay motion by the Assessment Officer. There is no basis in the evidence or arguments to criticize the Assessment Officer’s scheduling determinations on May 26 or May 28, 2015. Nor is there any evidence to support Mr. Curtis’s concern that the Assessment Officer may have become biased upon being told of a request for a consent adjournment by junior counsel attending before her. There is no evidence to contradict Mr. Dewart’s evidence at paragraph 14 of his affidavit sworn June 17, 2015. Moreover, Mr. Dewart was not cross-examined on his affidavit.

[6] The fact that a junior counsel from the respondent’s law firm of record attended before the Assessment Officer rather than Mr. Gleason is not a legitimate basis for concern.

[7] In the event that the Assessment Officer grants a stay of the assessment, Mr. Curtis will have his appeal rights, such as they are. That is the appropriate forum for him to raise any concerns that he may then have about his opportunity to be heard and the fairness of the process adopted by the Assessment Officer. At this stage, without knowing how the Assessment Officer will rule, there is not yet a basis for either side to complain. Rule 37.14 cannot be used to attack a motion that has not yet been resolved in proceedings that are not subject to the Rules at which all parties attended in any event.

[8] The respondent seeks costs in the amount of $1,500. It forthrightly notes that in light of special rates negotiated by its insurance company with its counsel, the request amounts to approximately 70% of counsel’s full fees and disbursements. That is a higher percentage of the lawyer’s full bill than is usually contemplated for partial indemnity costs. However, I agree with Corbett J. in Mantella v. Mantella (2006), 2006 CanLII 17337 (ON SC), 27 R.F.L. (6th) 76 (S.C.J.) at para 7, that costs are determined by balancing the pertinent factors laid down in the Rules rather than being driven off fees. As Corbett J. wrote,

If counsel is prepared to work at rates approximating partial recovery costs, that is counsel’s choice. There is no reason why the client’s fee recovery ought to be reduced because she has negotiated a favourable rate with counsel, so long as the total of the indemnity does not exceed the fees actually charged.

[9] The fixing of costs is a discretionary decision under section 131 of the Courts of Justice Act. That discretion is generally to be exercised in accordance with the factors listed in Rule 57.01 of the Rules of Civil Procedure. These include the principle of indemnity for the successful party (57.01(1)(0.a)), the expectations of the unsuccessful party (57.01(1)(0.b)), the amount claimed and recovered (57.01(1)(a)), and the complexity of the issues (57.01(1)(c)). Overall, the court is required to consider what is “fair and reasonable” in fixing costs, and is to do so with a view to balancing compensation of the successful party with the goal of fostering access to justice: Boucher v Public Accountants Council (Ontario), 2004 CanLII 14579 (ON CA), (2004), 71 O.R. (3d) 291, at paras 26, 37.

[10] In my view, the costs claimed of $1,500 are eminently reasonable. I am cognizant that Mr. Curtis is self-represented at this point. However that is not a license to avoid accountability. He should have had every expectation that costs would follow the event and that he would have to pay a significant amount of money to the respondent if he failed in this motion. The amount sought by the respondent is particularly reasonable in this case given the highly personalized and unsupportable allegations of wrongdoing made by Mr. Curtis against the Assessment Officer and counsel opposite. Costs are frequently awarded at a higher rate when the unsuccessful party makes inappropriate allegations against the parties opposite or their counsel. The respondent did not seek punitive costs.

[11] As I tried to explain to Mr. Curtis at the end of the hearing before me, he would be well advised to focus his arguments on the true substance of the matter before the court rather than overstating highly technical procedural points or making unsupported allegations of wrongdoing against others.

[12] Mr. Curtis is therefore ordered to pay costs in the amount of $1,500 to the respondent forthwith.

F.L. Myers J.

Date: June 23, 2015