Mancini Associates LLP v. Perpetual Income Producing Enterprises Inc. et al., 2016 ONSC 1823

Court File and Parties

Court File No.: CV-11-427930 Date: 20160411 Ontario Superior Court of Justice

Between: MANCINI ASSOCIATES LLP Plaintiff – and – PERPETUAL INCOME PRODUCING ENTERPRISES INC., ARMANDO OREFICE and ANTHONY GUIDO also known as ANTOINIO GUIDO also known as TONY GUIDO Defendants

Counsel: Sezar J. Bune for the Plaintiff Anthony Guido, self-represented and acting in person No one appearing for defendants Perpetual Income Producing Enterprises Inc. and Armando Orefice

Heard: March 10 - 11, 2016

Reasons for Decision

DIAMOND J.:

Overview

1The plaintiff is a law firm carrying on business in Woodbridge, Ontario. From 2010-2011, it represented the interests of the defendants Perpetual Income Producing Enterprises Inc. (“PIPE”) and Armando Orefice (“Armando”, a director of PIPE) in legal proceedings brought against PIPE and Armando by The Toronto-Dominion Bank (“TD”).

2At that time, both PIPE and Armando were in financial trouble and TD was seeking to enforce its various security agreements and personal guarantees. As a result, PIPE and Armando requested the assistance of Armando’s friend, the defendant Anthony Guido (“Guido”) to help in paying the plaintiff’s invoices. Both Pipe/Armando and Guido signed separate retainer agreements with the plaintiff at two different times.

3Due to non-payment of invoices, the plaintiff ultimately removed itself as solicitor of record for PIPE and Armando in the TD litigation pursuant to the Order dated November 22, 2011 of Master Brott. The plaintiff commenced this proceeding against PIPE, Armando and Guide seeking payment of its outstanding invoices totaling $29,413.15.

4Neither PIPE nor Armando defended this proceeding, and the plaintiff obtained default judgment against them on December 19, 2012. Guido defended and brought a counterclaim against the plaintiff for, inter alia, negligence and breach of “professional conduct”.

5Guido’s counterclaim was dismissed on consent of the parties by Order dates August 17, 2012 of Justice Perell. The trial of the plaintiff’s action against Guido proceeded before me.

The Original Retainer

6Neil Kotnala (“Neil”) testified on behalf of the plaintiff. Neil was employed by the plaintiff from 2004-2014 and had carriage of the TD litigation file. Guido also testified in his defence. No other witnesses were called by the parties.

7Armando was a previous client of the plaintiff, although Neil had never met or performed services for him before. Guido testified that he had been a client of the plaintiff for several years, and had always paid his accounts.

8On February 19, 2010, Neil met with Armando and Guido in the plaintiff’s boardroom with a view to retaining the plaintiff’s services as Armando had recently been served with the Statement of Claim in the TD litigation. According to Neil, it was agreed verbally between the parties that (a) each of PIPE, Armando and Guido would be retaining the plaintiff, (b) even though PIPE and Armando were the defendants in the TD litigation, Neil could advise and take instructions from Guido with Armando’s consent, and (c) Guido would be jointly and severally responsible for payment of the plaintiff’s invoices.

9Guido testified that at no time during this initial meeting did he ever agree to be responsible for the plaintiff’s fees and disbursements on account of PIPE/Armando. In cross-examination, when shown that he did remit payments towards PIPE/Armando’s outstanding balance with the plaintiff, Guido stated that consistent with his nature, he may have said that he was willing to “help his friend out” if possible.

10Neil began work on the file, and prepared two documents which were ultimately signed by Armando (personally and on behalf of PIPE) on or about April 30, 2010. The first document was the firm’s standard retainer agreement to represent PIPE and Armando in the TD litigation. The second document was an Authorization which instructed and authorized the plaintiff to advise and/or take instructions from Guido on behalf of PIPE/Armando. The Authorization further provided that PIPE and Armando were bound by any such advice to or from Guido.

11In cross-examination, Neil stated that he requested Armando to sign the Authorization to enable the plaintiff to seek and obtain instructions from a “third party”, which he later described as a “non-party”. While Neil testified that he considered Guido a client of the plaintiff at that time, Guido had not signed any retainer agreement. Neil stated that Guido not only agreed to cover PIPE/Armando’s expenses, but also had a say in how the response to TD litigation proceeded. I do note that in his Statement of Defence and (now dismissed) Counterclaim, Guido did take the position that the plaintiff owed him duties due to his status as a client.

12In any event, neither the retainer agreement nor the Authorization referenced or made any mention of Guido’s agreement to be liable for the plaintiff’s fees and disbursements incurred on behalf of PIPE/Armando in the TD litigation. That said, the Authorization is evidence that Guido was obviously involved in the TD litigation and not merely a stranger to the proceeding. Neil testified that he understood Guido had some interest in PIPE and/or Armando being defended which may have been related to PIPE potentially receiving pending insurance proceeds and turning around financially.

TD’s Motion for Summary Judgment

13Guido approved the draft Statement of Defence and Counterclaim prepared by Neil on behalf of PIPE and Armando. After the close of pleadings, TD instructed its counsel to bring a motion for summary judgment against both PIPE and Armando. The contents of Neil’s file were shared with both Armando and Guido. Some correspondence was addressed to Armando, while other correspondence was addressed to Guido. Neil testified that his assistant would copy both Armando and Guido with any correspondence and/or enclosures.

14The plaintiff’s first full invoice was rendered on May 25, 2010. The plaintiff had the sum of $3,000.00 sitting in its trust account on another file of Armando’s and applied the $3,000.00 to that invoice leaving an outstanding balance of $4,243.16.

15On May 20, 2010, Neil wrote to both Armando and Guido to prepare them for the anticipated costs of responding to TD’s motion for summary judgment. After providing an estimate for his fees, Neil stated that “work can only be performed if the legal fees of PIPE and Armando are unconditionally guaranteed”. Neil then testified that Guido phoned him to confirm that he would guarantee the plaintiff’s fees if PIPE/Armando could not pay them. There is a note to Neil’s file to that effect.

A Response to No Response

16The plaintiff’s outstanding invoice was paid by cheque dated June 2, 2010 and drawn on the account of Secure Mechanical Inc., (“Secure”, a company associated with Guido as it bears his business address).

17From mid-June to mid-September 2010, Neil continued to work on the file (responding to TD’s motion for summary judgment) and rendered an additional invoice dated July 16, 2010. Neil could not generate much if any response from Armando or Guido during this time, despite his repeated attempts to do so via phone calls and email correspondence. During this time, interim steps leading up to the hearing of TD’s motion had been scheduled including cross-examinations set to proceed on October 19, 2010.

18Neil testified that at this point, he was in between the proverbial rock and hard place. He needed to “wake up” Armando and Guido as he did not want to be placed in a position where he would be forced to get off the record at the last minute. Accordingly, he delivered a series of letters to Armando and Guido which first threatened, and then confirmed, a termination of the retainer agreement.

19Guido took the position at trial that Neil terminated both Armando’s retainer agreement and Guido’s own retainer agreement. As set out hereinafter, Guido did not sign any agreement with the plaintiff until late October 2010. I find that Guido has essentially conflated the various possible definitions of a “retainer”. There is no dispute that, at that time, the plaintiff was retained by PIPE and Armando to represent their interests in the TD litigation. While Neil testified that he felt Guido was also a “client” of the plaintiff, Guido had no separate identity of interest to protect in the TD litigation (at least none that was disclosed to Neil or at trial). Guido agreed to be liable for the invoices of PIPE/Armando, and if the relationship between the plaintiff and PIPE/Armando was breaking down due to lack of instructions and failure to pay invoices, Guido did have the right to know that the plaintiff could seek to remove itself as solicitor of record.

20The following is a summary of the steps taken by the plaintiff in response to what it believed was a breakdown of the solicitor/client relationship:

a) on August 13, 2010, Neil wrote to Armando and Guido asking for payment of the plaintiff’s outstanding account. This letter followed several phone calls made by Neil which went unanswered.

b) on September 2, 2010, Neil sent an email to Guido reminding him that “it was agreed that this firm would continue to provide services only if the accounts were paid by you immediately upon receipt and that you personally agreed to honour the account…had you not provided your agreement to honour our account, we would not have continued, under the circumstances, to provide services.”

c) on September 3, 2010, Neil sent a letter to Armando advising that in event that the plaintiff’s account was not paid in full by September 8, 2010, Neil would have no option but to terminate the plaintiff’s retainer and notify opposing (TD) counsel that the plaintiff was no longer retained with respect to the TD litigation;

d) on September 23, 2010, Neil delivered correspondence to Armando providing “formal notice” that the plaintiff’s retainer agreement with PIPE and Armando was terminated due to a lack of response from Armando and/or Guido;

e) on the same day (September 23, 2010), Neil delivered correspondence to counsel for TD advising that the plaintiff “no longer represents PIPE and Armando” in the TD litigation, and that in due course Neil anticipated the plaintiff being removed as their solicitor of record.

21TD’s motion for summary judgment was scheduled to be heard on November 15, 2010. Cross-examinations were scheduled to proceed on October 19, 2010. Neil testified that he finally heard from Guido on October 18, 2010. Guido, on Armando’s behalf, asked Neil to adjourn the cross-examinations scheduled for the next day. Guido further advised that Armando had “lost everything” and he was “not in a good emotional state”.

22Neil was put in a difficult situation. While he initially intended to remove the plaintiff as solicitors of record for PIPE/Armando, Guido (on behalf of Armando) reappeared at the 11th hour. According to Neil, it was not his practice to “leave clients in the dust” when avoidable.

23On October 18, 2010, Neil spoke with counsel for TD and advised him that Neil would not be attending the scheduled cross-examinations the following day. To Neil’s shock, Armando appeared on his own on October 19, 2010 at the cross-examinations. Neil had not heard anything from Armando for months save for Guido’s telephone call the previous day. Armando refused to answer any questions at his cross-examination, and as such TD brought a motion returnable on November 15, 2010 (i.e. at the opening of its motion for summary judgment) to strike out Armando’s affidavit as a result of his refusal to be cross-examined on that affidavit.

24Neil testified that now that Armando and Guido were “back in it”, he set up meetings with both of them to discuss the plaintiff renewing the retainer on a go forward basis. Neil met with Armando on October 20, 2010 to bring him up to speed regarding TD’s decision to seek an order striking Armando’s affidavit. Armando’s financial situation had not changed, and Neil testified that he would have to look to Guido for payment of the plaintiff’s outstanding accounts (and those invoices yet to be rendered).

25On October 29, 2010, Neil met with Guido. Each of Neil and Guido have slightly different recollections of the purpose of, and the discussions during, this meeting. However, what is not in dispute is (a) Guido brought a cheque with him (again drawn on the account of Secure) to retire the plaintiff’s outstanding invoice, and (b) Guido signed his own retainer agreement with the plaintiff. The salient terms of that retainer agreement state as follows:

“In consideration for the sum of Two Dollars ($2.00) now paid by Mancini Associates LLP to the undersigned (the receipt and sufficiency of which is acknowledged by the undersigned), and other good and valuable consideration, the undersigned hereby agrees as follows:

This is to confirm that you have retained the services of our firm to represent you the defendants in the above proceedings with regard to the above-noted matter. The defendants in the above action have already executed a retainer agreement. The liability for legal fees is joint and severally shared between all parties who have executed retainers with this firm. The undersigned agrees that it is deemed to have executed this agreement as a principal and not as a surety”.

26The “you” was struck out by Guido after his review of the initial draft, and the words “the defendants in the above proceeding” were inserted in handwriting. Neil testified that this retainer agreement was prepared to codify the terms of the original verbal agreement entered into by the plaintiff and Guido at the outset of the relationship.

27For his part, Guido testified that he felt he was being pressured into signing this retainer agreement as it did not reflect any alleged verbal agreement. Guido testified that he signed this retainer agreement “under duress”.

TD’s Motion to Strike

28TD proceeded with this motion to strike at the opening of its motion for summary judgment. TD sought over $14,000.00 in costs thrown away. Neil attended the motion after having Armando swear a supplementary affidavit on November 8, 2010 explaining his difficult emotional and financial state over the previous months, and his desire to proceed with defending the litigation now that he was “focused again”.

29Justice Low heard TD’s motion(s) and ordered Armando to attend for further cross-examination with a new return date for TD’s summary judgment motion to be scheduled. Justice Low also ordered PIPE/Armando to pay TD its costs thrown away in the amount of $5,000.00 plus HST and $495.21 for disbursements.

30The costs ordered payable by Justice Low were ultimately paid by Secure.

31Neil testified that, armed with Armando’s renewed interest in defending the TD litigation and Guido’s signed retainer agreement, he then proceeded to take all necessary steps to respond to and defend TD’s motion for summary judgment which was rescheduled to be heard on February 7, 2011.

The Blow Up

32Neil delivered two further accounts prior to the hearing of TD’s motion for summary judgment. The first account in the amount of $9,630.85 was dated November 24, 2010, and included work performed from mid-July 2010 onward including the time spent responding to and opposing TD’s motion to strike.

33The second account in the amount of $4,660.18 was dated January 5, 2011, and its preparation was brought on by an unfortunate “blow-up” which took place that very day between Neil and Guido. Neil testified that he spoke to Guido that morning and asked that his November 24, 2010 account be paid in accordance with the retainer agreement. When told that Guido would “see what he could do”, Neil advised that he did not want to leave the issue open-ended, and told Guido that in the event that the plaintiff’s accounts were not paid, then he would need to remove himself off the record. Neil testified that Guido then “lost it” and began a profanity-laced tirade. After listening to Guido’s choice words, Neil stated that he would now have to get off the record and the conversation ended. Neil then called Armando to advise him of his conversation with Guido. Armando seemed to understand the direction Neil needed to take as a result of his conversation with Guido.

34Guido testified that there was indeed a “blow up” between him and Neil on the phone that morning. Guido stated that he had enough of paying the plaintiff’s bills and, despite Armando being his friend, a potential judgment in favour of TD against PIPE/Armando was “not Guido’s problem”. Guido further testified that after that phone call, he considered any responsibility which he may have had to pay the plaintiff’s bill to be terminated along with both retainer agreements.

The Precipice of Getting off the Record

35Neil asked Armando to meet with him on January 7, 2011. He had scheduled a motion returnable January 11, 2011 to remove the plaintiff as solicitor of record for PIPE/Armando. Armando co-operated, and signed a Notice of Intention to Act in Person which Neil had prepared. Neil further confirmed that even though he intended to remove the plaintiff as solicitor of record for PIPE/Armando, he would nevertheless proceed with a cross-examination of TD’s representative scheduled to proceed on January 14, 2011.

36When Neil attended court on January 11, 2011, his motion to remove the plaintiff off the record was not reached, and he was given a new return date of January 18, 2011 to proceed with the motion.

Still on the Record

37Neil conducted the cross-examination of the TD Bank’s representative on January 14, 2011. He was of the opinion that it “went very well.”

38Neil reported the results of his cross-examination in correspondence to Armando, and in a phone call to Guido. Neil testified that Guido was pleased, and they essentially acted as if the January 5, 2011 conversation had not happened. Neil testified that Guido confirmed to him that he would bring in $12,000.00 in two separate payments over the next two weeks to reduce the outstanding invoices. In reliance upon Guido’s statement, Neil chose not to proceed with his motion to remove the plaintiff as solicitor in record, and proceeded to prepare for and argue against TD’s motion for summary judgment.

39When Guido failed to attend with any further payments, Neil sent correspondence to Armando and Guido on January 24, 2011 expressing his disappointment but agreeing to give them the benefit of the doubt because a failure to prepare for and argue TD’s motion for summary judgment would “seriously prejudice” PIPE/Armando.

40In response to that letter, Anthony delivered email correspondence to Neil which stated as follows:

“Hi Neil, I apologize but I have laid out for three weeks healing personal situation and will get you payment as soon as I am back in action. I expect to be recovered shortly.

I appreciate your follow up.

Thanks Anthony.”

41In response, Neil advised “Ok, I will take care of the motion.”

TD’s Motion for Summary Judgment

42On February 7, 2011, Neil argued TD’s motion for summary judgment before Justice Stewart, who took her decision under reserve.

43After the motion was argued, Neil sent numerous emails and made several phone calls to both Armando and Guido with a view to collecting the plaintiff’s outstanding accounts, which inclusive of a February 14, 2011 invoice in the amount of $16,112.12 now totaled $29,413.15 (the amount of the within claim).

44Apart from Armando attending on February 4, 2011 to bring $1,000.00 in cash, Neil did not hear further from Armando or Guido with respect to payment of the plaintiff’s outstanding invoices.

TD’s Motion is Dismissed

45By written endorsement released on July 27, 2011, Justice Stewart dismissed TD’s motion for summary judgment and requested that the parties deliver written cosst submissions.

46Neil prepared and delivered written cost submissions on August 19, 2011. Neil continued to reach out to Armando and Guido with a view to setting up a meeting to discuss payment and any other file-related matters. He did not receive any response.

Finally off the Record

47The plaintiff finally moved to get off the record for PIPE/Armando in November 2011. By order dated November 22, 2011 of Master Brott, the plaintiff was removed as solicitor of record for PIPE/Armando. In that order, the following paragraph was included:

“THIS COURT ORDERS AND DECLARES that Mancini Associates LLP be entitled to a charge on any money recovered by the defendants from the plaintiff, on account of any cost order made in relation to the motion argued before Madam Justice Stewart on February 7, 2011 to the extent of $29,413.15. Any costs ordered payable by the plaintiff by Madam Justice Stewart are payable to Mancini Associates LLP in Trust.”

Costs Order

48After the plaintiff was off the record, Justice Stewart’s costs decision was released on December 29, 2011 and she ordered TD to pay PIPE/Armando costs of the motion for summary judgment in the all-inclusive amount of $10,000.00.

49Neil testified that even armed with the charging order, the plaintiff took no steps to try and enforce it by communicating with TD or PIPE/Armando to that end.

Issues to be Decided

50Apart from a bald denial of the allegations in the statement of claim, Guido’s defence states that the plaintiff “breached its privileged and confidential client/solicitor relationship with Guido” by (a) disclosing confidential information to PIPE/Armando about Guido and his business, and (b) using sharp practices and unbecoming tactics against Guido to get paid for legal work performed for PIPE/Armando.

51It appeared from his testimony that Guido’s evidence surrounding his execution of the retainer agreement on October 29, 2010 “under duress” amounted to another defence raised by Guido, albeit not pleaded in his statement of defence. In my estimation, the essence of Guido’s defence is that once the plaintiff “terminated” its retainer agreement with PIPE/Armando, any obligation Guido had to fund the defence of the TD litigation ceased thereafter.

52Of importance is the fact that Guido admits in his statement of defence that there was a solicitor/client relationship between him and the plaintiff.

Assessment of Credibility

53In every trial, the trier of fact is charged with determining the truth. In some cases (such as this one), that task can be rendered unenviably difficult when both sides of a dispute are motivated to offer evidence designed to “fit” within a specific theory of the case. I am reminded of the words of Justice Cameron in Prodigy Graphics Group Inc. v. Fitz-Andrews 2000 CarswellOnt 1178 (S.C.J.) when he described this approach “selective hindsight through rose-coloured glasses”. In these proceedings, such a description is quite apposite.

54Justice Cameron offered a non-exhaustive list of traditional criteria by which the evidence of each witness, and, where appropriate, the exhibits presented at trial, ought to be assessed:

1. Lack of testimonial qualification
2. Demeanour of Witness: apparent honesty, forthrightness, openness, spontaneity, firm memory, accuracy, evasiveness
3. Bias/Interest in the Outcome (if a party, motive)
4. Relationship/Hostility to a party
5. Inherent probability in the circumstances i.e. in the context of the other evidence does it have an "air of reality"
6. Internal consistency i.e. with other parts of this witness' evidence at trial and on prior occasions
7. External consistency i.e. with other credible witnesses and documents
8. Factors applicable to written evidence: (a) Presence or absence of details supporting conclusory assertions (b) Artful drafting which shields equivocation (c) Use of language in an affidavit which is inappropriate to the particular witness (d) Indications that the deponent has not read the affidavit (e) Affidavits which lack the best evidence available (f) Lack of precision and factual errors (g) Omission of significant facts which should be addressed, and (h) Disguised hearsay

55The assessment of the credibility of witnesses is especially important when bearing in mind the onus of proof. In these proceedings, I must decide whether a specific proposition of fact has or has not been established on a balance of probabilities by the party having the onus of proof. For a party to seek to discharge its legal onus of proof, the court must first be satisfied with the credibility and reliability of the evidence in order to be in a position to make the relevant findings of fact.

56I have observed the testimony of both Neil and Guido during this two-day trial. I have reviewed the written record, and in some circumstances the lack of a written record, to help me assess the credibility of both witnesses.

57Where there was a divergence in the evidence, I prefer the testimony of Neil over that of Guido. For the most part, Neil followed up with either a written note in his file or correspondence to Armando and/or Guido to record the events which transpired in 2010-2011. While Guido took great issue at trial with Neil’s consistently changing position regarding the status of the plaintiff’s retainer, Neil was placed between the proverbial rock and hard place on several occasions due to the inaction of Armando and Guido. In the face of a pending court attendance, it is understandably difficult for a barrister to know when to “pull the trigger” and remove him/herself as solicitor of record. To do so could place the client in significant jeopardy and cause the client additional exposure by way of costs, further adjournments, or no adjournment at all.

58I find that Neil used reasonable efforts to straddle the two potential outcomes facing him in this solicitor/client relationship. While his repeated use of the phrase “terminating the retainer” could potentially confuse a client as to the ongoing status of the relationship, at no point did Neil follow through with a formal motion to remove the plaintiff as solicitor of record even though there were arguably ample grounds to do so.

59Guido took the position in closing argument that Neil had engaged in “bad faith and sharp practice” by terminating and then renewing the retainer agreement on several occasions. I do not understand why Neil taking such positions amounts to bad faith. Had Neil followed through with the motion to remove the plaintiff as solicitor of record for PIPE/Armando in October 2010 or January 2011, PIPE/Armando would have been faced with a pending motion for summary judgment without legal counsel and without having cross-examined TD’s representative. By January 2011, the motion for summary judgment was already adjourned at Armando’s request on strict terms imposed by Justice Low. Neil testified that he viewed the “exit ramp” of getting off the record as an option of last resort. I do not find Neil’s approach to amount to anything approaching bad faith or sharp practice in the circumstances.

60I also find that Guido did enter into a verbal agreement at the outset of the relationship to be liable for PIPE/Armando’s legal fees in the event they were unable to pay them. While he was adamant in his examination-in-chief that he never entered into such a verbal agreement, during cross-examinations he wavered from this position and stated that he could have agreed to help Armando out if necessary.

61The preparation of Guido’s retainer agreement must have obviously followed a telephone conversation between him and Neil. I do not accept that the retainer agreement was simply thrust upon Guido on October 29, 2010, especially in light of the prior email correspondence delivered by Neil to Guido confirming the verbal agreement. I find it telling that there is no responding email correspondence from Guido taking issue with this verbal agreement anywhere in the record. On the contrary, in late January 2011 Guido confirmed his obligation to pay the outstanding balance owed to the plaintiff.

62If Guido had told Neil on January 5, 2011 that the TD litigation was “no longer his problem” and he was absolved from any obligations to further pay the plaintiff, why would one of Guido’s only email correspondence (a) apologize for not paying the plaintiff’s invoices, and (b) promise to remit payment as soon as he can? Guido did not have any substantive answer to this question.

63As held by the Divisional Court in Arisoft Inc. v. Ali 2015 ONSC 7540, to succeed on the ground of economic duress, a party must prove that his/her will was coerced and the pressure exerted to do so was not legitimate. The Court has set out four factors to consider when determining whether a party's will has been coerced.

a) did he/she protest? b) was there an alternative course open to him/her? c) was he/she independently advised? d) after entering the contract, did he/she take steps to avoid it?

64Apart from there being no evidence that Guido was offered, sought or obtained independent legal advice, I do not find the presence of any evidence to support the necessary factors required for a finding of economic duress. On the contrary, Guido’s lack of protest and ultimate confirmation of his payment obligations support the opposite conclusion.

65Guido does not advance any further arguments seeking to invalidate his retainer agreement (lack of consideration, no independent legal advice, etc.) and as such I find both retainer agreements to be valid and enforceable.

66The only other issue which I raised at the conclusion of the evidence was whether the plaintiff had a legal obligation to pursue recovery of the $10,000.00 costs award made by Justice Stewart under its charging order as part of its duty to mitigate its losses (which was raised in paragraph 8 of Guido’s Statement of Defence).

67The charging order is just that: a charge upon the costs if paid by TD. Justice Stewart’s order goes further and mandates the costs to be paid by TD to Mancini & Associates LLP in trust, which confirms that the plaintiff never had legal title to any costs order made by Justice Stewart but merely a charge upon those proceeds.

68The primary obligation to remit payment of the plaintiff’s accounts rested upon PIPE/Armando and Guido. Once the plaintiff was removed as solicitor of record for PIPE/Armando, it had no further dealings in the TD litigation. Neil likely did not wish to exert any further time or energy in the matter having already successfully opposed TD’s motion for summary judgment in the face of Guido’s empty promises.

69I do not find the plaintiff’s failure to pursue its charging order to be a failure to mitigate in the circumstances of this case. I therefore grant Judgment to the plaintiff against Guido in the amount of $29,413.15 plus pre-judgment interest from December 24, 2010 (30 days after the plaintiff’s first unpaid was due) at the rate prescribed by section 128 of the Courts of Justice Act.

Costs

70If the parties cannot resolve the issues of costs of this motion, the plaintiff may serve and file written costs submissions (totaling no more than four pages including a Costs Outline) within ten business day of the release of these Reasons.

71The defendant Guido shall thereafter serve and file his responding costs submissions (also totaling no more than four pages including a Costs Outline) within ten business days of the receipt of the plaintiff’s costs submissions.

Diamond J.