Court File and Parties
Court File No.: C-3049/14SR Date: 2016-08-05 Ontario Superior Court of Justice
Between: COLLINS, BARROW, SUDBURY-NIPISSING LLP, Plaintiff – and – 917488 ONTARIO INC. operating as GORDON’S LODGE, LAURA-LEE PINKERTON a.k.a. LAURA PINKERTON and ANDREW PINKERTON a.k.a. DREW PINKERTON, Defendants
Counsel: Jerome C. Gardner, for the Plaintiff Laura Pinkerton, on behalf of herself and the Defendants
Heard: May 11, 12, 2016
Judgement
Hennessy, J.
The plaintiff accounting firm brings this action to recover payments for professional work performed in 2012 and 2013.
Facts
[1] The plaintiff is an accounting firm. The defendants operate a resort lodge on Manitoulin Island. The personal defendants are the sole shareholders of the numbered company. In the summer of 2012 Ms. Pinkerton contacted Greg Babij, a partner of the firm and requested his services.
[2] Ms. and Mr. Pinkerton alone or together signed three letters of engagement agreeing to pay standard rates for work done. In total the firm billed the defendants $53,052.37 for services rendered. The defendants paid a total of $9,000.00 on account. The difference in those payments represents the amount of the claim.
[3] The plaintiff led evidence through Mr. Babij who did the bulk of the work for the defendants; he prepared financial statements for 2011 and 2012 and made adjustments to financial statements for past years, going back 15 years. These adjustments or so-called “mis-matches” were made at the request of Ms. Pinkerton and to a great extent arose from the bookkeeping that was done when the personal defendants were not in control of the business. At the time of this work, the defendants, with the assistance of the plaintiff, were trying to re-finance the business.
[4] The plaintiff billed regularly, and in his defence Mr. Babij asserted that all work done for the defendants was billed at standard hourly rates but for the income tax returns, which were billed at the flat rate of $500.00 each.
[5] Mr. Babij testified that on more than one occasion Ms. Pinkerton asked him to provide an estimate or fixed fee but he refused to do so given the unknown scope of work and the time required to obtain the information needed to justify each of the adjustments.
[6] The main thrust of the defence, gleaned from the pleadings and the cross-examinations was that the deal between the parties was a fixed rate deal of $500.00 per month for bookkeeping services. However, the defendants did not lead any evidence.
[7] Ms. Pinkerton was a knowledgeable and prepared litigant. She has some designation as a financial planner. She has worked in a bank. She gave rather sophisticated instructions to the accountant with respect to the many adjustments that she requested to be made. Ms. Pinkerton was provided the opportunity to present evidence. She declined.
[8] Mr. Pinkerton did not attend the trial. I am satisfied that he knew the trial was going on. Ms. Pinkerton had obtained a pre-trial order permitting her to represent the numbered company.
[9] Although Ms. Pinkerton did not present evidence, to a certain extent she offered her position on the facts to the court through cross-examination. There is no need to do an analysis of her credibility since she refused to take the stand or subject herself to cross-examination.
[10] As a result I am left with the evidence presented by the plaintiff, through their witnesses and a book of documents, which were filed on consent. The documents support the position taken by the plaintiff that:
- The defendants signed a retainer or letters of engagement to do certain work for fixed hourly rates.
- That the letter of engagement of March 1, 2013, signed by Ms. Pinkerton set out the personal liability for the individual defendants.
- That invoices were sent regularly.
- That Ms. Pinkerton was highly involved in the complex work she requested of the plaintiff.
- That the plaintiff was told it would be paid once the refinancing was in place.
- That invoices totaled $53,052.72.
- That $9,000.00 was paid by the defendants on these accounts.
- That the balance due is $44,052.72.
- That the personal defendants as sole shareholders are personally liable for work done after the March 1, 2013 letter of engagement in the amount of $34,939.21.
- That there was no agreement limited to perform bookkeeping for $500.00 per month.
[11] I am satisfied on the balance of probabilities that the plaintiff has made out its claim. Judgement shall issue in the amounts set out above.
[12] Costs to the plaintiff. Counsel for the plaintiff to submit a Bill of Costs by September 10, 2016, to my attention. Any response or objection to the Bill of Costs to be sent to my attention by the defendants by September 30, 2016.
[13] If after costs have been determined, counsel has a problem obtaining approval of draft judgement, he may make an appointment through the Trial Coordinator to have the matter heard before me.
[14] At the outset of trial Ms. Pinkerton brought a motion seeking my recusal. She perceived me to be prejudiced and alleged that I was against the personal defendants. Ms. Pinkerton held this view for two reasons:
- I had been a guest at the Lodge in 2001 and 2006 when it was under control of different owners, but not since the Pinkertons were in control of the property. When I was a guest at the Lodge, I had paid the invoice to the previous individuals in control of the Lodge.
- I had presided over a motion in 1998 between the corporate defendant and the prior owners. In that proceeding I had dismissed a motion brought by the Pinkertons in an action against the Rusks. The Pinkertons and the Rusks disputed the ownership of the Lodge over a number of years.
[15] I declined to recuse myself. I explained to Ms. Pinkerton that by staying as a guest at the Lodge prior to her taking control could in no way be perceived as partiality in this case. Obviously I had no knowledge of or contact with the Pinkertons at those times.
[16] With respect to the motion, it involved different parties and different issues. There was no link between the cases.
The Honourable Madam Justice P. Hennessy Released: August 5, 2016