CITATION: Paul v. Morton, 2016 ONSC 2215

COURT FILE NO.: CV-16-618

DATE: 2016 04 07

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Russell G.V. Paul

Self-Represented

Applicant

• and -

James C. Morton and Morton Karass LLP

R. Karrass, Counsel for the Repondents

Respondents

HEARD: March 31, 2016

REASONS FOR JUDGMENT

LEMAY J

1This is an application by the client, Mr. Russell Paul, for an assessment of the accounts of the firm Morton Karrass. The firm was retained in order to defend against an appeal, and pursue a cross-appeal, of a decision made by Nolan J. on December 13th, 2013. There was a related claim in negligence against the law firm that originally represented Mr. Paul and his wife, as well as against the expert that testified at the trial.

2The negligence action has not moved past the pleadings stage, at least as far as I am aware. The appeal was argued before the Divisional Court on April 30th, 2015, and a decision was released on June 18th, 2015. The Pauls were completely unsuccessful in the appeal.

3The firm of Morton Karrass rendered its last account on October 7th, 2015. As a result of the breakdown in the solicitor-client relationship, Morton Karrass brought a motion to get off the record in January of this year. The motion was successful.

4This motion, for an assessment, was not brought by Mr. Paul until February 9th, 2016, and was not returnable until February 23rd, 2016. This motion was properly confirmed.

5There has been some delay in hearing this matter. The original order was granted by Fragomeni J. on February 23rd, 2016. Mr. Karrass, who was representing the firm of Morton Karrass, failed to attend before Fragomeni J., because he had misdiarized this appointment.

6As a result, Mr. Karrass brought a motion before Woollcombe J. to have the order of Fragomeni J. set aside. On March 11th, 2016, this motion was granted by Woollcome J., who expressed some significant reluctance in granting the motion. About the conduct of counsel, she stated:

Although I have concerns with how Mr. Karras could have made the mistake that he did, I am prepared to set aside the order of Fragomeni J as I accept that there was a mistake made and that counsel should be afforded an opportunity to be heard in this matter.

7The matter returned before me for hearing on March 31st, 2016. I heard argument and reserved on my decision, but I advised the parties that I would provide them with my decision promptly.

Issue

8The issue is whether I should order an assessment of the accounts of Morton Karrass under the Solicitor’s Act. For the reasons that follow, I am dismissing Mr. Paul’s application.

Analysis

9Sections 3 and 4 of the Solicitors Act state:

3. 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,

(b) by the client, for the assessment of a bill already delivered, within one month from its delivery;

4. (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.

10In this case, we are dealing with a combination of accounts that have been paid and accounts that are unpaid. The total invoices were in excess of $25,000.00, and approximately $10,000.00 of those amounts remain unpaid. In argument, neither party referred to any case-law on these issues. Therefore, I am left to determine the issue on the basis of the statutory provisions, and my understanding of the law.

11Section 3(b) allows the client to seek an assessment of a solicitor’s account for a bill that has already been paid. However, this assessment has to be commenced within a month of receiving the bill. It is clear on the facts that Mr. Paul did not initiate an assessment of any of the accounts rendered by Morton Karrass within a month of receiving them.

12Mr. Paul argues that he did not assess the accounts in accordance with the Solicitors Act because he did not want to alienate the firm while they were still performing work for him. He argues, however, that an assessment should be ordered because:

a) There was no properly executed retainer agreement between Mr. Paul and the firm.

b) The firm did not properly define the parameters of the retainer between the parties.

c) Mr. Paul raises a number of issues about the conduct of the appeal and the quality of the representation that he received.

13Ultimately, all of these issues are a dispute between the parties over the retainer, the conduct of the case and the quality of the representation that was provided by the firm of Morton Karrass. I cannot resolve that dispute on the basis of the evidentiary record before me.

14However, the question that I can resolve is whether the existence of that dispute should result in an order for an assessment of the accounts rendered to Mr. Paul under the Solicitors Act. It is clear that the application for the assessment was not initiated by Mr. Paul until many of the accounts had been paid, and until almost four months from the date the last account was rendered.

15As a result, it is clear that the only way in which an assessment is allowed in this case is if I find that “special circumstances” exist. Although this term is not well defined, it is clear to me that special circumstances do not exist in this case. The only reason that is offered for the delay is that Mr. Paul did not want to “alienate” the lawyers while they were still working with him. That is not a sufficient reason for waiting to assess the lawyers’ accounts.

16The Solicitors Act is written with a view that assessments will be brought by clients promptly after the accounts are rendered. It is also clear that the parties may have an ongoing relationship after an account is rendered. As a result, it is foreseeable that a client would have an ongoing relationship with his or her lawyer after an account was rendered. Concerns that requesting an assessment of the account would alienate the lawyer do not amount to special circumstances.

17There is one final issue that I should address. In argument, Mr. Karrass advised that his firm would not be seeking to collect the unpaid amounts. This concession affects the outcome of this case, as it affects the question of whether special circumstances exist. If the firm were seeking to collect the outstanding amount, it would mean that the dispute between the parties was broader than merely Mr. Paul’s unhappiness over the amounts that he had already paid. If enforcement proceedings were being initiated by Morton Karrass, then the issues that Mr. Paul is raising would clearly end up being adjudicated in one proceeding or another. It might then be appropriate to consider whether the “special circumstances”, or this Court’s inherent jurisdiction to review the assessment of a solicitor’s costs required that the entirety of the accounts be assessed or otherwise adjudicated.

Disposition

18The Application is dismissed. As a condition of this dismissal, the firm of Morton Karrass will not seek to initiate any proceedings to collect the unpaid fees. This does not prevent the firm from responding to a separate proceeding initiated by Mr. Paul with a claim for the unpaid fees. For clarity, if Mr. Paul makes a claim against Morton Karrass, they are entitled to counterclaim for the unpaid fees. Otherwise, they are not permitted to take any steps to collect them.

19Although Morton Karrass has been successful on this application, I do not view this as a case where costs should be awarded against Mr. Paul. I take that view because of the fact that this matter has, as a result of the failure of counsel to attend at the first hearing, required three Court appearances. This was an unnecessary waste of both Mr. Paul’s time and the Court’s time. Mr. Paul is not entitled to costs because he was unsuccessful. Therefore, there shall be no costs of this application.