COURT FILE NO.: 14-62873 DATE: May 5th, 2016
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Alan Clausi Professional Corporation, Plaintiff AND: James Bullock, Defendant
BEFORE: Master MacLeod
COUNSEL: J. Alden Christian & Lindsay E. Park, for the defendant, moving party Sean Giovannetti, for the plaintiff, responding party
HEARD: March 31, 2016
ENDORSEMENT
[1] This is a motion for summary judgment. The defendant moves under Rule 20 of the Rules of Civil Procedure for an order dismissing the plaintiff’s claim in whole or in part. Summary judgment is to be granted under the rule if the court is satisfied there is no genuine issue requiring a trial.
[2] For the reasons that follow I am granting partial summary judgment and directing a reference with respect to the balance owing.
Background
[3] Alan Clausi is a lawyer practicing in Ottawa as a member of the law firm Clermont Clausi Gardiner & Associates. For purposes of this motion the exact legal structure of the law firm is not important. The plaintiff is neither the law firm nor its client nor Mr. Clausi himself but Mr. Clausi’s professional corporation. No issue is taken with that.
[4] The defendant is an experienced insurance professional who holds himself out as an expert in the duties of insurance agents. Amongst other things Mr. Bullock is a licensed insurance agent and a compliance officer for an insurance agency.
[5] In June of 2013, Mr. Clausi was pursuing an action against Manulife on behalf of a client who had been denied disability benefits. In July of 2014 Mr. Clausi contacted the defendant to request his assistance. Mr. Clausi sought an expert report in time for upcoming mediation. The discussion took place by telephone and there is a disagreement about the scope of the retainer. The defendant states that he agreed to review the file and to write a report if appropriate whereas Mr. Clausi testifies that he believed he was paying for a written expert report to be delivered well in advance of the mediation scheduled for September 19th, 2014.
[6] On July 16, 2014, Mr. Clausi sent a letter to the defendant enclosing a CD of documents and a cheque in the amount of $5,000 as a “retainer fee.” The letter did not contain any instructions nor did it describe the mandate of the expert. The terms of retainer were oral and contained in the telephone conversation to which only Mr. Clausi and the defendant were parties. Mr. Clausi attests that he believed the $5,000 was a flat fee for an expert report whereas the defendant denies there was a flat fee agreement. In his view it was a deposit.
[7] In August of 2014, without having received an expert report, following another telephone conversation, Mr. Clausi terminated the retainer. He requested the defendant to send him a bill and to refund the balance of the retainer. Here again the circumstances are in dispute. Mr. Clausi maintains he had lost faith in the expert and his ability or willingness to do the work. The defendant’s evidence is slightly different. He attests that he orally advised Mr. Clausi that having reviewed the documents provided to him he could find nothing which clearly showed a breach of duty on the part of the insurer but equally there was nothing in those documents proving definitively that all insurer obligations had been met. In any event the result was an unequivocal e-mail in which Mr. Clausi instructed the defendant to cease work, not to put any opinion or further communication in writing and to prepare and submit a bill for his services.
[8] On September 18, 2014 the defendant submitted a bill for $2,768.50 inclusive of HST and he indicated he would refund the balance of the retainer. There ensued an exchange of emails concerning the basis for the fee. The defendant advised he had charged for seven hours at $350 an hour. Later that day and the following day the defendant was advised that Mr. Clausi felt the defendant had done no work of any value and that he or his client intended to sue the defendant for the recovery of the retainer and other relief and certainly would do so unless the account was reduced to an amount that was not “excessive”.
[9] The defendant declined to reconsider the account and in light of the threat of litigation, he retained counsel. He did not return the balance of the retainer.
[10] On December 16, 2014 the plaintiff commenced this action. The claim was not just for the return of the $5,000 retainer but also for a “declaration” that the defendant owed the plaintiff a fiduciary duty, that he did not provide value for service and for $90,000 for “punitive, aggravated and/or exemplary damages”.
[11] Discoveries took place. Mr. Bullock was examined for discovery in Toronto on March 30, 2015. The discovery was conducted by Mr. Clausi’s lawyer David Gardiner. Subject to undertakings it appears the examination was concluded without incident.
[12] The discovery of Mr. Clausi on behalf of the plaintiff took place on May 11, 2015. The discovery was conducted by Ms. Park. A senior partner, Ian McBride was also present. That discovery was not concluded because it was terminated by Mr. Gardiner, for what he alleged was an improper interjection by Mr. McBride. The interjection was trivial and in my view the response was intemperate. Mr. Gardiner halted the discovery but nothing was done about it. Mr. Gardiner did not bring a motion under Rule 34.14 of the Rules of Civil Procedure. Ms. Park and Mr. McBride did not seek an order under Rule 34.15 of the Rules of Civil Procedure. No one seeks to have Mr. Clausi return for more questions. I mention it only because there is nothing in the evidence to suggest any malicious act on the part of Mr. Bullock and malice might be a factor in considering punitive damages. That was the subject of the question.
[13] Very briefly, at Q. 217 Mr. Clausi was asked by Ms. Park if he was alleging Mr. Bullock did “anything malicious”. This question was never answered. Mr. Gardiner interjected to say “define malicious please”. Ms. Park replied “however you would define malicious” and Mr. Gardiner again requested Ms. Park to define “malicious” as it was her question. Mr. McBride then interjected asking if Mr. Clausi did not understand English. At that point Mr. Gardiner demanded an apology or “we’re discontinuing right now”. Ultimately he halted the discovery stating “for the record, counsel just abused our client by saying he can’t read”. As discussed above, nothing was done about this.
[14] The defendant now brings a motion either for partial summary judgment – by dismissing the claim for breach of fiduciary duty and for punitive and aggravated damages – or for complete summary judgment by dismissing the action in its entirety. As this was a long motion, it was scheduled pursuant to a case management order at a case conference on December 1st, 2015. The motion came on as scheduled on March 31st, 2016 and was scheduled for a half day before the master.
Request for adjournment
[15] At the commencement of the hearing, counsel for the plaintiff requested an adjournment. The ostensible reason for this was the alleged failure of the defendant to appear in Ottawa on January 25th, 2016 for continuation of his discovery. I declined to grant the adjournment for several reasons.
[16] Firstly, the motion was scheduled for a half day pursuant to a timetable established several months previously. A last minute request for adjournment would have been costly and prejudicial. Secondly, the notice of examination that was served was invalid since it attempted to require a party resident in another part of the province to appear in Ottawa for examination. Rule 34.03 of the Rules of Civil Procedure is explicit that an examination will take place in the county in which the witness resides unless otherwise ordered or agreed. Thirdly, the defendant had been examined and Mr. Gardiner had concluded his examination in March of 2015.
[17] The purpose of the examination in January would only have been follow up on undertakings. The defendant had offered to provide any additional information in writing when he answered the undertakings. Given the cap on discovery now imposed by Rule 31.05 of the Rules of Civil Procedure and the collaboration and proportionality mandated by Rules 29.1 and 29.2 of the Rules of Civil Procedure, the right to a follow up oral examination cannot be regarded as automatic. I conclude that the defendant did not improperly refuse to appear for a follow up discovery and is not in breach of the rules.
[18] More importantly, the plaintiff was unable to demonstrate how it would be prejudiced in proceeding with the motion without first completing a follow up examination. Discovery was completed subject to undertakings. The undertakings were answered. The defendant has acknowledged that he destroyed his notes in connection with this retainer. There was no specific piece of evidence the plaintiff appeared to be missing in order to put its best foot forwards.
[19] I refused the adjournment in the first instance. I did however reserve the right to revisit the issue if it appeared during the argument of the motion that the plaintiff was in any way at a disadvantage in putting its best foot forwards because of inability to obtain a follow up answer to an undertaking. Nothing of that sort arose. I am satisfied that it was not unjust to continue with the motion under all of these circumstances.
The test for summary judgment and the jurisdiction of the master
[20] Before turning to the evidence and my analysis thereof, it is necessary to deal briefly with the jurisdiction of the court under Rule 20 of the Rules of Civil Procedure when a master is presiding. This is because it was also suggested that an adjournment be granted because conclusions of law or credibility might be required. Of course those are not issues that should have been raised for the first time on the day of a long motion but more importantly they proceed from a fundamental misunderstanding of Rule 20 of the Rules of Civil Procedure.
[21] A master may preside over a Rule 20 of the Rules of Civil Procedure motion as the rule itself is not a rule within the exclusive jurisdiction of a judge. It is true that there are specific tools within the rule that are only available to judges but this does not deprive the master of jurisdiction nor is it designed to blunt the effectiveness of the court if a master is presiding. Without accessing the toolkit reserved to judges, the rule provides broad scope for granting of summary judgment in appropriate cases or to narrow the issues and devise an appropriate process of adjudication if true findings of credibility or determination of a novel point of law are required but a trial of all the issues raised by the pleadings is not.
[22] Rule 20.04 (2) of the Rules of Civil Procedure requires the court to grant summary judgment if the court is satisfied that there is “no genuine issue requiring a trial” with respect to a claim or defence. There are two aspects to the test. Firstly the court must consider all of the evidence submitted by the parties and decide whether the evidence demonstrates a genuine issue. Secondly, even if there is a genuine issue, the court must determine if it is reasonable and just to decide the issue without a trial. To put this another way, if the court determines that a claim or defense is without merit, summary judgment is to be granted. If a claim or defense raises a genuine issue then the court may grant summary judgment if it is fair and just to determine the merits without the full forensic mechanism of a trial.
[23] For purposes of this motion, I need not trace the evolution of Rule 20 of the Rules of Civil Procedure in detail. Summary judgment under this rule has been a feature of civil procedure in Ontario since the present rules came into force in 1986. In 2010 Rule 20 of the Rules of Civil Procedure was significantly amended to make summary judgment more accessible. There were two major changes. The first was to change the test from “no genuine issue for trial” to “no genuine issue requiring a trial”. The second was to provide that a judge (but not a master) could in appropriate cases weigh evidence, draw inferences and make findings of credibility and for that purpose could convene a “mini-trial”. The Supreme Court of Canada has resoundingly endorsed a robust application of the rule in Hryniak v. Mauldin, 2014 SCC 7.
[24] Like a judge a master hearing a motion under the rule must consider the evidence submitted by the parties and must apply the statutory test but what a master may not do is to exercise the new powers set out in Rule 20.04 (2.1) of the Rules of Civil Procedure or conduct a mini-trial under Rule 20.04 (2.2) of the Rules of Civil Procedure. The only other restriction on the master’s jurisdiction is found in Rule 20.04 (4) of the Rules of Civil Procedure. That subrule provides that if the court determines the “only genuine issue is a question of law” and a master is presiding then the master is to adjourn the motion to a judge who may decide the question of law. Other than the restrictions in those three subrules, the master hearing a summary judgment motion acts as “the court” and pursuant to Rule 37.02 (2) of the Rules of Civil Procedure the master has “all the jurisdiction of a judge” to hear and determine the motion.
[25] The restrictions on jurisdiction are quite specific and should not be misunderstood. Rule 20.04 (4) of the Rules of Civil Procedure does not mean that the court presided over by a master cannot apply the law or determine a question of mixed fact and law. And if the law is clear, it is open to the court to determine there is no genuine question of law to be decided. It is only if the sole genuine issue is a pure question of law and it may be appropriate to decide the question on a motion, that it must be adjourned to a judge. In effect this is like a special case under Rule 22 of the Rules of Civil Procedure and it arises rarely.
[26] Masters may apply the law to the facts, may decide issues of mixed fact and law, may determine that the law is settled and that the issue raised by one of the parties is not a genuine issue. Even if there is a genuine question of law, unless it stands in isolation as the only issue, the court could grant summary judgment without deciding the legal issue simply by applying the most favourable interpretion of the law. Thus for example if the evidence does not support the party resisting summary judgment regardless of which legal interpretation is adopted, summary judgment will still be appropriate.
[27] With respect to findings of fact, although a master may not conduct a mini-trial under Rule 20.04 (2.2) of the Rules of Civil Procedure or make true findings of credibility now permitted under Rule 20.04 (2.1) of the Rules of Civil Procedure, the master as was the case under the old rule may assess the admissibility and sufficiency of the evidence and may draw negative inferences pursuant to Rule 20.02 (1) of the Rules of Civil Procedure. In short the revisions to the rule were not intended to reduce the powers previously exercised by the court under Rule 20 of the Rules of Civil Procedure but were intended to give new tools to judges. To overgeneralize slightly, the master may determine that there are no merits to be tried whereas the judge may go on to determine that although there are merits that could be tried and which require credibility findings, a trial is not necessary.
[28] It would be perverse to think that the amendments to expand accessibility of summary judgment were intended to hobble the utility of masters hearing such motions. The master cannot himself or herself make credibility findings on competing affidavits at the motion but in appropriate cases the master can isolate those issues and direct a narrow hearing on the merits. There are other important provisions of the rule that are accessible to the court whether or not a master is presiding. For example under Rule 20.04 (3) of the Rules of Civil Procedure if the only genuine issue is quantum, the court may direct a trial or a reference on damages. Pursuant to Rule 20.05 of the Rules of Civil Procedure where only certain facts are genuinely in dispute, the court may make an order narrowing the issues for trial and may direct an expedited trial of those issues.
[29] On a previous occasion in Mehdi-Pour v. Minto Developments Inc., 2010 ONSC 5414 I made a more detailed analysis of my jurisdiction under Rule 20 of the Rules of Civil Procedure. That analysis was subsequently upheld by the Divisional Court, 2011 ONSC 3571. While Mehdi-Pour predated the Supreme Court decision in Hryniak v. Mauldin, 2014 SCC 7, nothing in the Supreme Court decision alters that analysis. In fact Hryniak should be viewed as a call to be bold and not timid providing of course that it is just to do so.
Analysis & Decision
1. The claim for breach of fiduciary duty
[30] The first ground for the defendant’s motion is that summary judgment should be granted to dismiss the claim for damages based on breach of fiduciary duty. The plaintiff asserts that retaining the defendant as an expert under the circumstances described in the pleadings and in the evidence of Mr. Clausi gave rise to fiduciary obligations and therefore to damages beyond the ordinary measure of damages available for breach of contract.
[31] Standard arm’s-length commercial relationships do not attract fiduciary duties. While it is true that ad hoc fiduciary duties may be imposed by the law in various circumstances, the Supreme Court of Canada has clearly stated the necessity of demonstrating particular facts. Importantly, the alleged fiduciary must have undertaken, expressly or by implication, to act in accordance with a duty of loyalty. This means more than agreeing to do important or even critical work for someone. The alleged fiduciary must have “forsaken the interests of all others in favour of the beneficiary in relation to the specific interest at issue”. See Professional Institute of the Public Service of Canada v. Canada, 2012 SCC 71, at para. 124.
[32] In addition, the party alleging the fiduciary relationship must demonstrate the “Hodgkinson factors”. A fiduciary must have scope for the exercise of some discretion or power. The fiduciary must be in a position to unilaterally exercise the power or discretion so as to affect the beneficiary’s legal or practical interests. The beneficiary must be peculiarly vulnerable to the fiduciary or at the mercy of the fiduciary holding the discretion or power. See Hodgkinson v. Simms, [1994] 3 S.C.R. 377, cited with approval at para 122 of Professional Institute of the Public Service of Canada v. Canada, 2012 SCC 71.
[33] Even if a fiduciary relationship can be shown, it is not every breach of duty by a fiduciary that gives rise to a claim for breach of fiduciary duty. Even in per se fiduciary relationships, such as that between a solicitor and client, a claim for breach of fiduciary duty may only be founded on breaches of the specific obligation imposed because the relationship is characterized as a fiduciary relationship. The Supreme Court has held for example that in the case of lawyers, not every breach of the contract of retainer is a breach of a fiduciary duty. See Galambos v. Perez, 2009 SCC 48, at paras 36 - 37. Fiduciary duties in other words are duties imposed on those who stand in a particular relationship to the beneficiary and which are duties which would not otherwise arise.
[34] What is the evidence in the case at bar? At paragraph 14 of Mr. Clausi’s affidavit he states that at all material times he believed the defendant had a duty of courtesy and good faith towards himself and the plaintiff. He states that he trusted and relied on the defendant and his purported expertise and that he placed a high degree of confidence in his purported skill and expertise. At paragraph 17 of the affidavit he states that Mr. Bullock admitted at his discovery he had a duty of good faith towards Mr. Clausi.
[35] This falls far short of evidence which might permit the court to make the findings of fact required by the Supreme Court to establish a claim for breach of fiduciary duty. Taken at its highest, the evidence simply shows that the plaintiff hired the defendant to write an expert report and the defendant failed to do so. The plaintiff may be able to show that he was misled by the defendant about his willingness or capacity to act as an expert. He may be able to show that the defendant made promises he did not keep. He may be able to prove that the defendant billed the plaintiff for work he did not do. This does not meet the test requisite for the imposition of damages for breach of fiduciary duty.
[36] There is no evidence to support the claim of vulnerability. The plaintiff does not attest that he was unable to proceed with the mediation or the litigation, that he was unable to find an alternative expert, or that he suffered any loss or damage other than the $5,000.00 paid to the expert.
[37] Summary judgment on this point is appropriate. The plaintiff cannot show breach of a fiduciary duty. That aspect of the claim will be dismissed.
2. The claim for aggravated and punitive damages
[38] Closely related to this point is the claim for “punitive, aggravated and/or exemplary damages” in the amount of $90,000.00”. These are lumped together in the prayer for relief but of course they are not the same thing. In Canada though “aggravated damages” may lack a precise definition, they are recognized as compensatory and distinct from “punitive damages” which are a form of fine. Aggravated damages require proof of loss over and above the normal measure of breach of contract.
[39] Aggravated damages are an augmentation of ordinary compensatory damages to take into account intangible injuries such as mental distress or humiliation. It is not enough to assert bad faith. The plaintiff must also show that he or she has suffered foreseeable and compensable mental distress or psychological damage. See Honda Canada Inc. v. Keays, 2008 SCC 39, at paras 54 – 59. A corporation can suffer from neither. Even if aggravated damages is given an extensive and liberal definition to include all forms of consequential damage within the principle set out in Hadley v. Baxendale, [1854] 9 Ex 341; 156 E.R. 145, there is nothing in the pleading and nothing in the evidence which could possibly give rise to such a claim. As already discussed, the evidence does not support any loss suffered by the plaintiff professional corporation other than the $5,000 paid to the expert as a retainer.
[40] On this pleading and on this evidence, no claim is made out for aggravated damages.
[41] Nor does the evidence support a finding of an independent and actionable wrong which might give rise to punitive damages. Punitive damages are reserved for “advertent wrongful acts that are so malicious and outrageous that they are deserving of punishment on their own”. See Honda Canada Inc. v. Keays, 2008 SCC 39, at para 62. They will only be available where the compensatory damages are “insufficient to achieve the goal of punishment and deterrence.” See Hill v. Church of Scientology, [1995] 2 S.C.R. 1130.
[42] Other than the bald assertion that the defendant owed a fiduciary obligation to the plaintiff, the allegation against the defendant is simply that he failed to deliver on a contractual obligation to prepare an expert report and that he overcharged for his time. It is true that in Bhasin v. Hrynew, [2014] 3 S.C.R. 494, 2014 SCC 71 the Supreme Court has declared that there is a general organizing principle of good faith and honest performance underlying contract law in Canada. It is also true that in Whiten v. Pilot Insurance the court held that an independent actionable wrong necessary as a precondition to awarding punitive damages need not be tortious but could arise in a contract case from breach of the duty of good faith. Good faith as used in Whiten is not the same as the organizing principle subsequently established in Bhasin. Whiten arose in the context of an insurance contract where the court found it was a contract of absolute good faith in which a fiduciary duty existed. In Bhasin, the court specifically held that the organizing principle did not in and of itself create a cause of action or render contracting parties fiduciaries.
[43] In this case none of the factors identified by Binnie J. as relevant to an award of punitive damages are significant. I have already ruled against the imposition of a fiduciary duty. There is no evidence of a course of conduct, a cover up or outrageous conduct carried on over a lengthy period of time. As the court makes clear in paragraph 115 of that decision, punitive damages remain rare in garden-variety contractual disputes. There is virtually no likelihood that punitive damages would be ordered for breach of a contract such as that which is in dispute here. On the evidence before the court, punitive damages would not be appropriate.
Judgment on the claim
[44] The defendant also asks for dismissal of the claim. To grant that relief I would have to determine that the claim of the plaintiff is completely invalid. That is clearly not the case because there is no doubt that the plaintiff paid the defendant $5,000.00 and the defendant has not returned the retainer. At minimum the plaintiff is entitled to the balance of the retainer in excess of the amount billed.
[45] The action is properly an action to recover some or all of the $5,000.00 retainer. Onto this the plaintiff has grafted an ill-considered and spurious claim for $90,000.00. That aspect of the claim has all of the hallmarks of abuse of process. The action should have been brought in Small Claims Court.
[46] Given the mandate of proportionality, it is tempting to simply grant summary judgment to the plaintiff for $2,231.50 which is the amount of the retainer less the invoice amount. In fact I am urged to do just that in paragraph 20 of the defendant’s factum. This however would require me to decide that the invoice sent by the defendant was legitimate. This requires determination of the amount of work done by Mr. Bullock, the terms of the oral retainer and whether an hourly rate of $350.00 is justified. Given that Mr. Clausi’s evidence is contradictory to Mr. Bullock’s on several points, in my view that would require assessment of credibility and weighing of the evidence.
[47] I decline to grant summary judgment on the claim. A judge could potentially have conducted a mini-trial as part of the motion. That route is not open to me for reasons discussed above but there are adequate powers within the rule to devise another summary procedure for this issue.
Resolution of the plaintiff’s claim for $5,000.00
[48] The defendant proposes that if I cannot give summary judgment on the remaining aspect of the claim, I transfer the action to small claims court in Toronto. This is resisted by the plaintiff as it involves not only transferring it to another branch of the court but also to a different region.
[49] I am of the view that transferring this aspect of the claim to small claims court would neither be efficient or desirable. Inter-regional transfers to Toronto are subject to a cumbersome practice direction requiring a motion to the Regional Senior Judge in Toronto. The need to reorganize the action in small claims court or the need to bring another motion for a change of venue are both steps that are best avoided and are disproportionate to the amount remaining in dispute.
[50] There is no question that the plaintiff retained the defendant. There is no question that the plaintiff is entitled to a refund. The only genuine issue is the amount of the retainer that the plaintiff is entitled to recover and the amount of the retainer that the defendant is entitled to keep. The answer to that depends on what work was done by the defendant and how much he was legitimately entitled to bill. It is in short solely a question of “the amount to which the moving party is entitled” within the meaning of Rule 24.04 (3) of the Rules of Civil Procedure.
[51] In these circumstances Rule 24.04 (3) of the Rules of Civil Procedure empowers the court to “grant judgment with a reference to determine the amount”. Accordingly the plaintiff will have judgment for the return of the balance of the retainer in an amount to be determined. The defendant will have judgment for an amount which may be deducted from the retainer in an amount to be determined.
[52] A reference under this rule may be directed by the referring judicial officer to herself or himself, to another judge or master in certain circumstances or to “a registrar or other officer of the court”. Although I could by this means direct a reference to myself, given the amount in dispute and the nature of the issue, the matter is ideally suited to the Assessment Officer. The Assessment Officer in Ottawa must regularly deal with the value of expert bills when reviewing disbursements. In addition, the Assessment Officer may have dates available more readily than I do. Accordingly there will be a reference to the Assessment Officer at Ottawa to determine the amount owing.
[53] Needless to say it is also open to the parties to resolve the amount by agreement. Should that occur, it may simply be included in the formal judgment.
Costs
[54] I turn now to the issue of costs. This was a half day motion in which the defendant was successful in obtaining summary judgment dismissing most of the claim. In accordance with the Ottawa practice, I received costs outlines from both parties in sealed envelopes which I did not review until after I had made my decision on the merits.
[55] It is apparent from those outlines that the plaintiff claims to have incurred costs of $8,054.00 for the motion while the defendant claims to have incurred costs of $24,931.27. While I do not have amounts from the plaintiff for the action as a whole, the costs outline from the defendant for costs of the action totals $55,888.74. The absurdity of these amounts in relation to what began as a $5,000.00 dispute speak for themselves.
[56] Mr. Gardiner who prepared the costs outline requested through Mr. Giovanetti that costs not be awarded without further submissions because he wishes to speak to conduct that may in his view have lengthened the proceeding. In addition there may have been offers to settle that must be considered. Accordingly I will hear further submissions on costs.
[57] The costs of the reference will be in the discretion of the Assessment Officer.
Summary & Order
[58] In summary, there will be judgment under Rule 20 of the Rules of Civil Procedure dismissing the claim for breach of fiduciary duty and dismissing the claim for punitive and aggravated damages in the amount of $90,000.00.
[59] There will be a judgment allowing the defendant to deduct from the retainer an appropriate amount for his fees and requiring him to refund the balance. In the absence of agreement between the parties, a reference will be directed to the Assessment Officer at Ottawa to determine the amount owing.
[60] The costs of the motion and the action are reserved for further submissions from counsel. The costs of the reference will be in the discretion of the referee.
[61] The plaintiff shall have carriage of the reference and Rule 55.02 (1) of the Rules of Civil Procedure will apply.
Master MacLeod