CITATION: Calin A. Lawrynowicz Barristers & Solicitors v. Marino Estate, 2016 ONSC 3685
COURT FILE NO.: 07-CV-333171
DATE: 20160606
ONTARIO
SUPERIOR COURT OF JUSTICE
IN THE MATTER OF THE Solicitors Act and in the matter of:
CALIN A. LAWRYNOWICZ BARRISTERS & SOLICITORS
Applicant/Solicitor
– and –
THE ESTATE OF DOMENICO MARINO, deceased, by its representative JOSEPH MARINO, MARIA MARINO, JOSEPH MARINO and GREGORY MARINO
Respondents/Clients
William L. Roland
for the Applicant/Solicitor
Gregory M. Sidlofsky
for the Respondents/Clients
HEARD: In writing
PERELL, J.
REASONS FOR DECISION - COSTS
[1] This is a costs award in an appeal from an assessment officer’s decision about the accounts rendered by Calin A. Lawrynowicz, Barristers & Solicitors (the “Law Firm”).
[2] The accounts had originally been rendered to Maria Marino, the Estate of Domenico Marino, and Joseph Marino, in his personal capacity and as representative of the Estate of Domenico Marino (the “Marinos”).
[3] The Assessment Officer concluded that the accounts paid by the Marinos totaled $588,500.46, but she assessed the value of the legal services to be $nil plus $7,500 for disbursements. She ordered the Law Firm to refund the Marinos $662,455.98 comprised of $581,000.46 for the overpayment of legal fees, pre-judgment interest of $31,455.52, and substantial indemnity costs of $50,000.
[4] The Assessment Officer held that the Law Firm failed to prove on a balance of probabilities that the legal accounts were fair and reasonable. She concluded that the fees charged and paid for by the Marinos were so grossly excessive as to amount to fraud. As I read her decision, in addition to her finding that the quantum of the accounts amounted to fraud, she also found that Calin Lawrynowicz of the Law Firm perpetrated a fraud on both the Marinos and the court with respect to the separate issue of how much the Marinos had paid to the Law Firm on account of legal fees.
[5] The Law Firm moved to oppose confirmation of the Certificate of Assessment for five reasons: (1) the Assessment Officer exceeded her jurisdiction by assessing accounts that were not before her and by determining the nature of the retainers associated with those accounts; (2) the Assessment Officer exceeded her jurisdiction by holding that an assessment officer can make findings of fraud and then by finding fraud to have been proven; (3) the Assessment Officer was biased and the conduct of the assessment hearing contravened the principles of natural justice; (4) the delay in the decision of the Assessment Officer undermined the integrity of the assessment; and (5) the Assessment Officer made errors in principle and palpable and overriding errors of fact in reaching her assessment decision.
[6] I concluded that the Assessment Officer made errors in principle and, therefore, the Certificate of Assessment should not be confirmed. I substituted my own determination of what sum should be refunded to the Marinos. I, therefore, ordered the Law Firm to pay the Marinos $475,000, all inclusive of overpayment of legal fees, disbursements, pre-judgment interest, and substantial indemnity costs. See Calin A. Lawrynowicz Barristers & Solicitors v. Marino Estate, 2016 ONSC 2065.
[7] The Law Firm’s position is that it was successful on the appeal because the Assessment Officer’s decision was set aside and, therefore, it is entitled to costs. The Law Firm seeks costs of $32,307.82, all inclusive of fees, disbursements and applicable taxes.
[8] The Marinos’ position is that they were the substantially successful party and they seek partial indemnity costs of $20,000 all inclusive of disbursements.
[9] In my opinion, it is true that the Law Firm was successful on the appeal but to a significant extent its success was a technical success that was a consequence from my ruling that the Certificate of Assessment should be set aside. What followed was a substantial award against the Law Firm that, in my opinion, should not be diluted by awarding costs against the Marinos.
[10] In my opinion, the appropriate exercise of discretion in all of the extremely extraordinary circumstances of this case is to award the Marinos $15,000, all inclusive.
[11] Order accordingly.
Perell, J.
Released: June 6, 2016
CITATION: Calin A. Lawrynowicz Barristers & Solicitors v. Marino Estate, 2016 ONSC 3685
COURT FILE NO.: 07-CV-333171
DATE: 20160606
ONTARIO
SUPERIOR COURT OF JUSTICE
IN THE MATTER OF THE Solicitors Act and in the matter of:
CALIN A. LAWRYNOWICZ BARRISTERS & SOLICITORS
Applicant/Solicitor
– and –
THE ESTATE OF DOMENICO MARINO, deceased, by its representative JOSEPH MARINO, MARIA MARINO, JOSEPH MARINO and GREGORY MARINO
Respondent/Clients
REASONS FOR DECISION - COSTS
PERELL J.
Released: June 6 , 2016