Price v. Lambrinos, 2016 ONSC 7877

Price v. Lambrinos, 2016 ONSC 7877

CITATION: Price v. Lambrinos, 2016 ONSC 7877

COURT FILE NO.: CV-10-416130

DATE: 20161215

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

ALAN S. PRICE

Plaintiff

– and –

NIKOLASO LAMBRINOS aka NICK LAMBRINOS aka NIKOLAOS LAMBRINOS

Defendant

COUNSEL:

Gary M. Caplan and Mr. Anisman, for the plaintiff

N. Lambrinos, Self-Represented

HEARD: December 5, 6, 7, 8, 2016

V.R. CHIAPPETTA J.

REASONS FOR JUDGMENT

Overview

1Alan S. Price (“Price”), a lawyer, caused this proceeding to be commenced by statement of claim issued on December 9, 2010. Price sought judgment against his former client, Nikolaso Lambrinos a.k.a. Nick Lambrinos a.k.a. Nikolaos Lambrinos (“Lambrinos”), in the amount of $37,324.55, which he claimed represented the outstanding amount for legal fees on accounts rendered to Lambrinos. In or about January 2011, Lambrinos served a statement of defence wherein he disputed that he owed the fees as claimed. Lambrinos cannot remember who, if anyone, assisted him with the drafting of the pleading. He made no claim for damages and no allegations of negligence or breach of duty. Lambrinos’ pleading was restricted to defending the fees as claimed.

2On or about November 7, 2011, Lambrinos served and filed a fresh as amended statement of defence and counter-claim. The pleading was drafted by lawyer Angela Assuras, LSUC number 34544V (“Assuras”). The fresh as amended pleading defended the amounts alleged owing and went further to make a counter-claim for $500,000 in damages for breach of contract, negligence and breach of fiduciary duty. As will be detailed below, the counter-claim was ill-advised and without sufficient foundation in both liability and damages.

3Both the claim and the counter-claim came before me for trial. Had it not been for the counter-claim, I would have referred Price’s claim to an assessment officer under the Solicitors Act, R.S.O. 1990, c. S.15, as that forum would have been a more proportionate use of court services and resources. Considering the counter-claim, however, in my view, it was in the best interests of the parties to have all of their issues adjudicated at one time in one forum. The trial of the issues raised by each of the claim and the counter-claim took place before me, therefore, over four days.

4For reasons set out below, I have concluded that Price is entitled to payment from Lambrinos of $20,450.52 for services rendered and yet unpaid. The counter-claim should be dismissed.

Background

5Price is 76 years old. He practices law full-time, having been called to the bar in Ontario in 1967. His practice is restricted to civil litigation, primarily in the context of commercial real estate. His clients, since 2004, consist primarily of small businesspeople, some professionals, builders and developers. Price also has experience in the area of motor vehicle litigation and general personal injury damage cases. His usual practice is to charge an hourly rate for his services. By exception, Price will work on a contingency basis, depending on the circumstances of the case. If he takes a case on a contingency basis, he will customarily charge a 30% contingency fee if the matter settles prior to trial and a 40% contingency fee if the matter proceeds through to trial and judgment.

6But for the period of time between November 2007 and the fall of 2008, Price represented Lambrinos and his respective businesses on 17 files from October 2004 to April 2010. Some of the files were non-contentious, but the majority involved contested litigation. At no time did Lambrinos sign a written retainer agreement. In 2004, at their first meeting, Price told Lambrinos that he charged an hourly rate for legal services and that at the time his hourly rate was $450. Price advised Lambrinos verbally when his hourly rate was increased to $500 in May 2007 and when it was increased to $600 in December 2008. I find these hourly rates to be reasonable for a lawyer with Price’s experience practicing law in Toronto. Price regularly provided Lambrinos with invoices for services rendered. Lambrinos regularly paid the accounts receivable with a cheque issued by one of his companies. When Price received a cheque, he applied it against the oldest receivable. Prior to 2010, Lambrinos did not complain or take issue with any of the invoices provided to him by Price.

7Lambrinos is 65 years old. English is not Lambrinos’ first language. He speaks English sufficiently, however. He testified that he has people, including his daughter and a friend, assist him with reading and translating documents that have been mailed to his house or presented to him. Assuras testified on behalf of Lambrinos. Her evidence was that she sent Lambrinos written correspondence to his home while she was performing legal services on his behalf. She was confident that Lambrinos was assisted by third parties and fully understood the words as written in the correspondence. Efforts were also made at trial to ensure Lambrinos was able to present his case to the best of his ability despite his stated inability to read and write. It was clear to me, upon observing the conduct of Lambrinos throughout the trial, that he fully understood the mechanics of the trial process as well as the issues relevant to both his claim and his defence of the claim brought by Price.

8This is to be expected as Lambrinos has extensive experience with litigation and court procedure, both as a client and as a self-represented litigant. Aside from the 17 cases Price presented on his behalf between 2004 and 2010, Lambrinos’ experience with the legal system includes the following:

1. 1999 – Lambrinos sued AXA Insurance and Superior Auto Collision. The public view terminal document reflects that he was represented by Harvey Lewis. Lambrinos’ evidence is that this is incorrect – that he did not see a lawyer for this matter.

2. 2001– Lambrinos was sued by Chrysler Credit. He was unrepresented.

3. 2002 – Lambrinos was sued by Jewelstone Construction. He was unrepresented but nonetheless filed a statement of defence and counter-claim.

4. 2003 – Lambrinos was sued by the City of Toronto. He was unrepresented.

5. 2003 – Lambrinos sued Cordeiro according to the public view terminal document. He was represented by Lawrence Goldapple. Lambrinos testified that he did not remember this action.

6. 2004 – Lambrinos sued Bell Canada and Entourage Technology Solutions. He was represented by Jeffrey Paul Neinstein.

7. 2014 – Lambrinos was sued by the City of Toronto. The public view terminal document reflects that he was represented by Mr. Ron Kanter. Lambrinos’ evidence is that he does not know Mr. Kanter.

8. 2015 – Lambrinos and his daughter sued Certas Home and Auto Insurance. They are represented by Mr. Pick.

9. 2015 – Lambrinos was sued by the City of Toronto. He is unrepresented.

10. 2015 – Lambrinos was sued by Home Trust. The public view terminal document reflects that he is represented by Chris Housser. Lambrinos’ evidence is that he does not know Mr. Housser and that Mr. Pick is representing him on this matter.

11. 2016 – Lambrinos was sued by Intact Insurance. The public view terminal document reflects that he is represented by Gainza Wilson Navanette. Lambrinos’ evidence is that he does not know anything about this lawsuit and that he does not know Ms. Navanette.

12. 2016 – Lambrinos’s company (118730 Ont. Ltd.) and his daughter were sued by Scotia Mortgage Corporation. Mr. Pick is representing them.

9Lambrinos is also an experienced businessman despite not being highly educated. He operated two businesses: S&L construction, operating through numbered company 1187310 Ont. Ltd; and a sports bar, operating through numbered company 1386995 Ont. Ltd. The sports bar was sold in 2005 or 2006. Lambrinos owns one side of a semi-detached dwelling. The other side is owned by the numbered company 1187310 Ont. Ltd. In 2007, Lambrinos transferred the shares of this company to his daughter, who proceeded to mortgage the property for just over $255,000. $35,000 was used to pay outstanding fees to Price, and the remaining amounts were disbursed to Lambrinos. In 2013, Lambrinos mortgaged his home in favour of Home Trust in the amount of $625,000. In 2014, he further mortgaged his home in favour of one of his lawyers, Mr. Pick, in the amount of $100,000. In 2015, 1187310 Ont. Ltd. further mortgaged that property in favour of Scotiabank in an amount just over $547,000.

10Price testified on his own behalf. He answered questions directly and readily admitted to the deficiencies with certain invoices. He was able to recall details of the merits of Lambrinos’ cases and his evidence was supported in part by the documentary evidence before the court. I found his evidence credible, and I accept it.

11Lambrinos also testified on his own behalf. I found his evidence to be more emotional than fact-based. On many occasions, Lambrinos referenced his failing memory. The problems with his memory were also demonstrated by his failure to remember a lawsuit he commenced recently or the name of lawyers publicly recorded as his representatives. It is for these reasons that I will prefer the evidence of Price over Lambrinos where there is an inconsistency that cannot be resolved by the documentary evidence.

12Assuras testified on behalf of Lambrinos. She is a lawyer having been called to the bar in Ontario in 1993. Assuras testified as a fact witness and took the court through the document she prepared for Lambrinos entitled “Schedule of Damages (updated as at November 29, 2016 for pre-trial conference on December 1, 2016)”. Assuras made obvious efforts to advocate on behalf of Assuras. Her evidence is accepted only to the extent it informs the damages claimed by Lambrinos.

13Lambrinos’ daughter Lisa also testified on her father’s behalf. She presented herself as a daughter who is supportive of her father. Her evidence added nothing, however, to the issue before the court.

Analysis

14Price’s files at issue are reviewed below from both the claim and the counter-claim perspective. I have incorporated Assuras’ explanations for the damages claimed as well as the defences and the claims set out in Lambrinos’ amended pleading.

15On a general basis, however, I make the following conclusions.

16With respect to the counter-claim, the evidentiary record provides no basis for Lambrinos’ claim for damages in negligence, breach of contract or breach of fiduciary duty. The court received no evidence, expert or otherwise, to establish that the legal services provided by Price on behalf of Lambrinos fell below the standard practice expected of an ordinary competent lawyer practicing law in the province of Ontario: Folland v. Reardon (2005), 2005 CanLII 1403 (ON CA), 74 O.R. (3d) 688 (C.A.). There is no evidence that Price failed to do what he was contracted to do and no evidence that he breached a fiduciary duty. Rather, the evidence establishes that Price performed his services competently, kept Lambrinos informed, received instructions, provided guidance and moved the files through the respective stages of litigation. Further, even if the evidence demonstrated that Price’s services fell below the stated standard, which it does not, there is no evidence demonstrating that such conduct caused Lambrinos to incur monetary damages.

17In terms of Price’s claim, I have concluded that Price is properly entitled to $20,450.52 from Lambrinos for legal work provided, invoiced and unpaid. My reasons for this conclusion are detailed below. I have also considered the following, as instructed by the Court of Appeal in the longstanding case of Cohen v. Kealey (1985), 10 O.A.C. 344 (C.A.):

1. The time expended by Price: Having reviewed the ledgers in detail, in my view, there was no occasion when Price spent unwarranted time on a file. Assuras’ review, on behalf of Lambrinos, left her with only one complaint about the time expended by Price: $1,800 for an assignment court attendance. For reasons set out below, in my view, that amount was reasonable as well.

2. The legal complexity of the matters: The files with TD Bank, the Alcohol Gaming Commission of Ontario, the Toronto Police Services and Torgo Construction were complex matters. The TD files were complicated by a criminal charge and the efforts required to prove someone other than Lambrinos used his debit card. The AGCO file was complicated by the difficult issues with liability and damages. The Police file was complicated by the difficult issue of damages and a limited and dwindling access to insurance proceeds. The file with Lambrinos’ brother was complicated by the procedural strategies employed by Lambrinos’ brother and the nature of the family dispute itself. Meanwhile, the Seitaj file and the Macaulay Aronovitch Rollo file were not complicated and this was reflected in the hours worked and the fees charged to these files.

3. The degree of responsibility assumed by the solicitor: There was little risk of nonpayment of legal fees as Lambrinos was a successful businessman at the commencement of the retainer in 2004 and accessed equity in 2007 to facilitate the payment of his legal fees.

4. The monetary value of the matters in issue: Price’s testimony is that, as of today, he feels the AGCO file is worth $500,000. The monetary value of Lambrinos’ claim against TD was not significant, but he insisted that efforts be made for his vindication. The claim by Lambrinos’ brother was originally valued at $1,000,000 but reduced to $500,000 through Price’s efforts.

5. The importance of the matter to the client: Lambrinos is a principled man. He testified that he will always stand up and fight for his rights. The importance to Lambrinos of every matter he litigates cannot be overstated.

6. The degree of skill, expertise and competence demonstrated by the solicitor: Price attempted to use his skill and competence to guide Lambrinos. He attempted to demonstrate damages for Lambrinos by having him assessed by Sunnybrook. He attempted to have Lambrinos’ brother’s claim dismissed as against him. Lambrinos did not take such wise instruction. Price’s competence is further demonstrated by the success of his idea to commence a malicious prosecution claim against TD to trigger settlement discussions.

7. The results achieved: Price stopped working for Lambrinos in 2010 for reasons set out below. To this end, he was unable to achieve final results on the files in issue, but for the TD files, which, as noted, ended in Price’s favour. Further, there was opportunity for Price to end the matter with Lambrinos’ brother, but Lambrinos decided to consent to judgment in lieu of heeding the advice of Price.

8. The ability of the client to pay: Lambrinos was a successful businessman at the commencement of his retainer with Price in 2004. He used equity in a property in 2007 and thereafter to satisfy legal fees.

9. The client’s expectation as to the amount of the fee: Lambrinos was aware, because Price told him, that Price was charging him by the hour for legal services. Lambrinos was aware, because Price told him, that his hourly rate was $450 in 2004, $500 as of May 2007 and $600 as of December 2008. The hourly rates were reflected in the invoices provided. At no time prior to 2010 did Lambrinos take issue with any of the fees charged to him by Price.

Lambrinos v. TD Canada Trust: Price file numbers 4090, 4272 and 4517

Background

18Price represented Lambrinos on three files with TD Canada Trust.

19In 2005, Lambrinos sued the bank, alleging that someone used his debit card while he was in police custody and withdrew $40,000. The bank defended the action. There is $3,250.89 for outstanding in legal fees (file number 4090).

20In 2006, the bank sued Lambrinos, alleging that he materially altered a bank draft in the amount of $96,300 to make it payable to one of his companies. Lambrinos defended the claim. There is $1,815.09 outstanding in legal fees. This matter was complicated by the criminal proceedings. In 2007, the order of committal which committed Lambrinos to stand trial on the related criminal charges was quashed (Price was not involved in the criminal case). At no time did Lambrinos tell Price that he was convicted of a similar criminal offence in November 2003. There is no claim for outstanding legal fees (file number 4272).

21In 2009, Price recommended that Lambrinos sue the bank for malicious prosecution, strictly as a tactic to trigger settlement discussions on the two prior claims. There is $1,815.09 outstanding in legal fees (file number 4517).

Claim

22Price seeks $3,250.89 outstanding on the debit card claim, nothing outstanding on the cheque claim and $1,815.09 outstanding on the malicious prosecution claim. The amounts of unpaid fees are demonstrated by reference to Price’s ledgers.

Defence and Counter-claim

23Lambrinos states that Price did not have his authority to commence the action against the bank for malicious prosecution. He seeks an amount of $1,600 for work that he states was not authorized by him. Price states that he discussed this with Lambrinos in person, where Lambrinos agreed and gave him instructions to commence the claim. The claim was issued in September 2009. The bank reached out to engage in settlement discussions. All three actions were settled in or about November 2009. The result of the settlement was that Lambrinos came out $56,300 ahead in relation to the claims as he did not have to repay the $96,300, and he was not reimbursed the $40,000. I accept Price’s evidence that he had instructions to commence this action. It defies common sense to conclude he would have done so otherwise. The tactic in doing so was both reasonable and successful.

24Lambrinos submits that he is entitled to a credit for the amount charged on invoice number 526 as there is no description of the work on the invoice. Price’s evidence was that the amount charged, $1,500, was for Lambrinos’ initial consultation in October 2004. The invoice was paid, as they all were, without complaint. This evidence is demonstrated by the ledger from the day of the invoice, and I accept it.

25In argument, Lambrinos stated that it did not make sense to him to pay $28,934 in his attempts to recover the $40,000 taken with use of his debit card. I am satisfied, however, that the work done by Price on this file was necessary in order to prove Lambrinos’ unfailing position that neither he nor anyone he knew used his debit card while he was in custody.

26Lambrinos further states that he is entitled to a credit for the amounts charged on invoices number 1648 and number 1647 as there is no description of the work on the invoices. In the case of these two invoices, there is also no corresponding description of the work in the ledger. It is agreed, therefore, by Price that Lambrinos is entitled to a credit on both invoices, $1,094.50 and $5,405.05 respectively.

Conclusion

27Price is entitled to payment from Lambrinos, therefore, in the amount of $3,250.89 for file number 4090 and $1,815.09 for file number 4517. Lambrinos is entitled to a set-off of $1,094.50 for invoice number 1648 and $5,405.05 for invoice number 1647.

Lambrinos v. the Alcohol & Gaming Commission of Ontario: Price file number 4280

Background

28In August 2006, Price issued a claim on behalf of Lambrinos against the AGCO and the Province of Ontario for injuries he alleges he sustained in 2002 while attending a hearing regarding the liquor license for his sports bar. Lambrinos alleges that during the hearing, the chair that he was sitting on broke, causing him to fall and strike his head on the floor. Price explained to Lambrinos that there were problems with liability as a representative from the AGCO advised that all of the chairs were inspected and none were broken. Further, the evidence of counsel for the AGCO at the hearing was that she witnessed Lambrinos either fall asleep or faint and slide down the front of the chair without hitting his head. This description was consistent with the statement of another AGCO employee who witnessed the incident. Price further explained to Lambrinos that there were challenges with damages as a result of Lambrinos’ previous brain injury suffered from falling off a ladder. The medical evidence failed to demonstrate either a new injury or an exacerbation of an existing injury. On the issue of damages, Price arranged for Lambrinos to attend a multidisciplinary task force program at Sunnybrook hospital wherein a series of tests and examinations would be conducted. The assessment included an MRI, and Lambrinos refused to attend, advising that he was claustrophobic. Both the doctor from Sunnybrook and Price tried to convince Lambrinos to attend, but he would not do so. As a result, he was unable to continue in the program. Price repeated his concerns in a letter to Lambrinos’ new lawyer on November 18, 2010.

29Mr. Szymanski testified on behalf of Price. He is counsel representing the AGCO and the Province in defending Lambrinos’ claim. Mr. Szymanski stated that there is a real issue on liability as to whether the chair was broken and a serious issue with respect to causation. He advised the court that the pre-trial was conducted on August 25, 2016. A second pre-trial was scheduled for November 21, 2016, but the action settled beforehand and the pre-trial did not proceed. The trial scheduled for November 28, 2016, also did not proceed. Mr. Szymanski’s evidence is that there are emails between counsel confirming the settlement but that Minutes of Settlement have not been signed nor has he received an executed Release. He advised the court that his understanding was that Lambrinos disputes that a settlement was reached.

30At Lambrinos’ request and on his behalf, Assuras provided a document entitled “Schedule of Damages (updated as at November 29, 2016 for pre-trial conference on December 1, 2016)”. Included in the schedule is reference to a settlement in this case for $50,000. At trial, Lambrinos testified that this case has not settled. His evidence was that his lawyer, Mr. Pick, made a mistake in that his instructions were to accept $500,000 and not $50,000. Lambrinos stated that Mr. Pick made an error with the zero.

Claim

31Price is claiming $7,015.67 in unpaid fees. This amount of unpaid fees is demonstrated by reference to Price’s ledgers.

Defence and Counter-claim

32Lambrinos claims that he is entitled to a portion of the monies he paid to Price that should have been based on a contingency arrangement. Price told Lambrinos that the file would be billed in “the usual way”, meaning hourly. Price did not raise the possibility of a contingency arrangement. Lambrinos did not ask for such an arrangement until 2008. In 2008, Lambrinos told Price that people were asking him why Price was not working for a contingency fee on this file. Lambrinos asked Price if he would. Price said no, explaining that there were serious issues of liability and damages for Lambrinos. Price offered to prepare the file for Lambrinos, to take it to two other lawyers who did contingency work and receive their opinion. Lambrinos took the file contents to two other lawyers. Both refused to take the file on a contingency basis. Lambrinos asked that Price continue with the file. In my view, a lawyer does not have a duty to offer a client a contingency arrangement. In this case, Price conducted himself reasonably by explaining why he would not accept a contingency fee (considering the difficult issues of liability and damages) and assisting Lambrinos in finding a lawyer who might be open to acting for him on such a fee arrangement.

33Lambrinos further states that he is entitled to the $3,000 in costs as awarded by Master Dash in March 2011, on the defendant’s motion to compel undertakings, as Price failed to provide him with his file in a timely fashion. Lambrinos attended for examinations for discovery on June 9 and September 18, 2008, and gave undertakings. Price wrote Lambrinos two letters (one on October 28, 2008, and the second on February 23, 2009) and had conversations with him telling him he needed to answer his undertakings. The AGCO brought a motion in November 2009 to compel answers to undertakings. It was successful and a costs award of $1,000 was made against Lambrinos.

34In his final letter to Lambrinos, dated April 1, 2010, Price reminded him of his outstanding undertakings from his further discoveries in January and February 2010. On January 20, 2011, the AGCO brought a further motion to compel answers to undertakings. Mr. Price attended without counsel and advised the court that he was seeking new counsel but that Price would not release his file without payment of $35,000. The Master adjourned the motion to March 2, 2011, and directed Price to attend. The AGCO was once again successful in obtaining an order against the plaintiff. Costs were awarded against the plaintiff in the amount of $3,000 without prejudice to the plaintiff claiming this sum as damages as against Price in his counter-claim.

35The evidence demonstrates, however, that the costs award was as a result of Lambrinos’ failure to comply with undertakings despite Price’s repeated instruction to him that he must do so. Price’s letter to Lambrinos, dated April 1, 2010, clearly reviews the undertakings outstanding and instructs Lambrinos that he is required to answer them. Price included copies of the Statements of Defence in Lambrinos’ motor vehicle case with his April correspondence. Lambrinos did not require his file from Price to satisfy the remaining undertakings. His failure to do so and the costs associated with this failure lie with Lambrinos and not Price’s conduct in maintaining a solicitor’s lien over the file.

36Lambrinos further alleges that Price failed or refused to deliver his entire file, resulting in Lambrinos being incapable of fulfilling his discovery obligations, preparing for trial or retaining new counsel. The issue with the undertaking resulting from discovery is addressed above. The court received no evidence to demonstrate prejudice in preparing for trial or retaining new counsel.

37Lambrinos claims that Price failed to obtain all necessary medical records, reports and documents, resulting in Lambrinos being unable to prove his claim in damages. The court received no evidence to demonstrate this statement. Price made efforts to receive a decoded list of services pertaining to Lambrinos from the Ontario Ministry of Health. Letters of request were sent on July 20, 2007, and September 30 2009 (Price did not do work for Lambrinos from November 2007 to the fall of 2008). OHIP responded in October 2009, requesting information which was provided by Price. Price stopped doing work for Lambrinos before receiving the OHIP summary. Price also made efforts for Lambrinos to be assessed by doctors who would provide the medical evidence required to prove his damage claim. As noted above, Lambrinos refused to cooperate with these efforts.

38Finally, Lambrinos states that he is entitled to a discount of at least $20,000 given Price’s failure to give notice to the Province in accordance with the Proceedings Against the Crown Act, R.S.O. 1990, c. P.27. Lambrinos first consulted the law firm of Macaulay Aronovitch Rollo LLP, however, with regards to this case. The firm failed to give notice to the Province within seven days of the incident as required by the Proceedings Against the Crown Act. When Lambrinos attended on Price for legal assistance, Price conducted some research and concluded that the notice under the Act did not apply to the AGCO as it was a separate corporation. Counsel for the AGCO agreed. In August 2006, Price issued a claim on Lambrinos’ behalf, therefore, against the AGCO and put Macaulay Aronovitch Rollo LLP on notice of a potential negligence claim. Price added the Province as a defendant out of an abundance of caution, knowing that the required notice period expired prior to him learning about the file. Mr. Szymanski confirmed that it is the AGCO that is the main defendant. Further, there is no evidence that a settlement, if any, was affected by a failure to give notice.

39Lambrinos advised the court that he should not have to pay the price for the work Price did on this file as Price took too long “to get the case to court.” Lambrinos provided no evidence of this beyond a bald statement. The documentary evidence is such that Price attended discoveries on behalf of Lambrinos and was working diligently to secure medical evidence and have him answer undertakings. It should be noted, however, that if Assuras is correct and the case settled, it took six years after Price’s involvement to achieve settlement. Further, if Lambrinos is correct and it is not settled, the matter continues. Mr. Pick, Price’s current lawyer on the file, was not called on behalf of Lambrinos. Taken together, it cannot be said, therefore, that the delay, if any, was due to Price.

Conclusion

40Price is entitled to payment from Lambrinos, therefore, in the amount of $7,015.67 for file number 4280.

Lambrinos v. Macaulay Aronovitch Rollo LP: Price file number 4464

Background

41As noted, Price put the firm on notice of a potential lawsuit. The file was held in abeyance while he proceeded against the AGCO on Lambrinos’ behalf.

Claim

42Price is claiming $457.80 in unpaid fees. This amount of unpaid fees is demonstrated by reference to Price’s ledgers.

Defence and Counter-claim

43Lambrinos makes no specific defence or claim with respect to this file.

Conclusion

44Price is entitled to payment from Lambrinos, therefore, in the amount of $457.80 for file number 4464.

Lambrinos v. Toronto Police Services: Price file number 4134

Background

45In 2005, Lambrinos was in custody and was being transported to the courthouse when the van wherein he was riding was struck by an uninsured vehicle. There were many people in the van and only $250,000 available in insurance proceeds. Similar to the AGCO claim, and despite Price’s efforts, Lambrinos was without medical evidence to demonstrate a new or exacerbated injury. The action proceeded through the litigation process including discoveries and the scheduling of a pre-trial. Lambrinos’ claim was ultimately settled after Price stopped working on this file and all others in April 2010.

Claim

46Price is claiming $1,388.60 in unpaid fees. This amount of unpaid fees is demonstrated by reference to Price’s ledgers.

Defence and Counter-claim

47Lambrinos states that the charge by Price of $1,800 to attend assignment court is excessive. Price testified that he billed a half an hour each way for travel and two hours for an attendance that took much longer than two hours. Under the circumstances, therefore, $1,800 was reasonable.

48Lambrinos also argued that he is entitled to a return of the portion of monies paid to Price that should have been based on a contingency. I accept Price’s evidence, however, that he and Lambrinos never discussed his working on a contingency basis on this file. As noted above, in my view, a lawyer does not have an open duty to tell the client of such an arrangement. Further, there were issues with this case that mitigated against such an arrangement, including proving damages and the limited and dwindling insurance proceeds available.

Conclusion

49Price is entitled to payment from Lambrinos, therefore, in the amount of $1,388.60 for file number 4134.

Lambrinos v. Torgo Construction: Price file number 4286

Background

50As reflected in the endorsement of Master Polika, dated June 11, 2010, this was a highly complex matter, further confused and challenged by the underlying familial conflict.

51In November 2006, Lambrinos asked Price to represent him in his efforts to defend the lien action brought against him by his brother through his brother’s company Torgo Construction. His brother had registered two liens for $500,000 each on two adjoining properties that Lambrinos owned, one of which he lived in. In September 2007, Price was successful in having one of the liens discharged. The other lien was to proceed to trial. On the day that trial was to resume, Lambrinos advised Price that he had reached a settlement with his brother, such that he was giving his brother consent to judgment for $500,000 on his property. Price advised Lambrinos that his decision was not in his best interests as Price was in a position to have the brother’s action dismissed. Price strongly recommended to Lambrinos that he not consent to judgment. Lambrinos insisted, however, that he consent to judgment on behalf of his brother. Price removed himself from the record as a result and judgment was granted against Lambrinos, on consent, on December 4, 2007.

52As a result of Lambrinos not following his advice, Price stopped working on all of Lambrinos’ files from November 2007 until the fall of 2008 when Lambrinos returned to Price for help as his brother decided to act on the judgment and remove Lambrinos from his home. Price provided Lambrinos with a release and satisfaction piece and advised Lambrinos that his brother would have to sign these documents authorizing the withdrawal of the writ of seizure and sale. Lambrinos advised Price that his brother signed the documents on October 13, 2008, and provided copies to Price of the executed documents. Lambrinos further advised Price that his son, his daughter and a friend witnessed his brother’s signature. Price prepared affidavits on behalf of Lambrinos’ son and friend. They both swore to the truth of the information therein – that they witnessed Lambrinos’ brother sign the documents. Lambrinos also swore an affidavit wherein he deposed that he witnessed his brother sign the documents. Lambrinos’ brother raised the issue of authenticity, submitting that the signatures on the release and the satisfaction piece were not his. At the direction of the Master, Price retained a handwriting expert, ostensibly to provide an opinion authenticating the signature of Lambrinos’ brother. Her opinion, however, was just the opposite. She concluded that the signatures on the release and the satisfaction piece were not that of Lambrinos’ brother. In response, on June 7, 2010, Price brought a motion to remove himself from the record. The motion was granted and Price decided he could no longer act for Lambrinos on any file.

53Lambrinos continued with the trial, representing himself. Lambrinos’ brother did not submit expert evidence. Rather, he called Lambrinos, his son and his daughter as his witnesses, all of whom gave evidence supporting the authenticity of the documents in issue. Ultimately, Lambrinos’ brother was found to have released all of his claims against Lambrinos.

Claim

54Price is, therefore, claiming $13,022.02 in unpaid fees. This amount of unpaid fees is demonstrated by reference to Price’s ledgers.

Defence and Counter-claim

55Lambrinos seeks the costs of the security for costs motion and motion for leave, estimated at $4,000. He submits that the Master dismissed the motion on the basis that it could not be brought as judgment had already been granted. This, however, is factually incorrect. Upon review of the endorsement of Master Polika, dated June 11, 2010, it is clear that he granted leave to bring the motion for security for costs on July 9, 2009. By February 1, 2010, however, on the return of the motion for security costs, Master Polika was of the view that the basis for such an order had evaporated as Lambrinos’ brother now had a solicitor of record. He dismissed the motion without costs to any party. There is no factual basis, therefore, for the $4,000 as claimed.

56Lambrinos further submits that as there is no description of work in invoices number 1248 and number 2067, refunds should be provided for the amounts respectively billed therein. Lambrinos is correct that there is no description of the work in the invoices. The work, however, is fully described in the corresponding ledger posts. I am, therefore, satisfied that the work was done as described in the ledger and the failure of the description in the invoice was a computer program error. Price is entitled, therefore, to payment for the work as described in the corresponding ledgers.

Conclusion

57Price is entitled to payment from Lambrinos, therefore, in the amount of $13,022.02 for file number 4286.

Lambrinos v. Seitaj: Price file number 4458

Background

58In March 2009, Price issued a claim on behalf of Lambrinos against Vangjel Seitaj, seeking damages in the amount of $140,850. It is alleged therein that Seitaj approached Lambrinos with a plan to purchase vehicles in Canada for resale in Albania. Lambrinos was to provide the funds for the acquisition of the vehicles and would receive a profit plus the repayment of the monies advanced. Lambrinos claimed that he advanced the funds, the vehicles were purchased and shipped to Albania but that he was not paid the amount advanced or the profits as agreed. Mr. Seitaj defended the claim and Price filed a reply on Lambrinos’ behalf and gathered witness statements. Price received a status notice advising that the action would be dismissed if not dealt with in 90 days from May 1, 2011. He forwarded it to Lambrinos by correspondence, dated June 3, 2011, as he was no longer acting for Lambrinos.

Claim

59Price makes no claim on this file for outstanding fees.

Defence and Counter-claim

60Lambrinos claims that he is entitled to $2,000 for remedial work done by Assuras to avoid an automatic dismissal due to what he says is Price’s failure to prosecute the action for two years, from May 2009 to June 2011. Price stopped working on Lambrinos’ files, however, in April 2010. The notice of dismissal was sent to his attention almost a year later, in May 2011. Further, the court was provided with no evidence to demonstrate that fees of $2,000 were incurred to avoid an automatic dismissal.

61Lambrinos also seeks $1,900 for what he describes as Price’s failure to properly plead the claim, necessitating an amendment to the claim. The claim was amended by Assuras on December 9, 2011. The fact of the amendment itself evidences only that reasonably competent lawyers may draft pleadings differently. Further, by May 2012, Lambrinos was representing himself. He worked out a settlement with the defendant, without the assistance of counsel. There is no evidence illustrating that the amendments were necessary or that they served value in terms of how or why the action was settled. Further, the court was provided with no evidence to demonstrate that fees of $1,800 were incurred to amend the claim.

Conclusion

62Lambrinos is not entitled to a refund on any funds previously paid on file number 4458.

Further Issues Raised by the Defence and Counter-claim

Hourly Rate

63Lambrinos submits that the invoices should be adjusted to reflect that Price failed to advise him in writing about his increase in the hourly rate from $450 to $600. Price testified that in 2004, Price told Lambrinos that his hourly rate was $450 and he advised him verbally when his hourly rate was increased to $500 in May 2007 and $600 in December 2008. I accept this evidence. Further, the invoices were given to Lambrinos, he has assistance available to him to read the invoices and the invoices specifically reflected the increase in the hourly rate. Lambrinos made no complaint and took no issue with the accounts prior to 2010. Specifically, he took no issue with the increased hourly rate as reflected on the accounts in 2007 and 2008. As noted above, I find the rates reasonable for someone with Price’s years of experience practicing in Toronto. I see no reason for a price adjustment on this basis.

Deposit on a Failed Transaction

64Lambrinos claims a return of a deposit of $5,000 on what he described as a failed transaction. His evidence is that the $5,000 was given to Price, deposited into Price’s trust account and not returned to him when the transaction associated with the deposit failed to close. Lambrinos offered the court no evidence beyond his statements. Price testified that he has no information about any such transaction or a deposit attached to it. He states that he did not receive such a deposit on behalf of Lambrinos. He reviewed his entire trust account deposit book and no such entry was recorded. The claim must fail, therefore, without documentary evidence demonstrating the factual underpinnings and misappropriation as alleged.

Mortgage Funding

65There was some suggestion by Lambrinos, during his evidence, that the 2007 mortgage on the property owned by the numbered company was processed through and held in Price’s trust account. There is no basis, however, to this allegation. The funds were processed through the trust account of Mr. Aranof as evidenced by Exhibit 6.

Limitations Act

66Lambrinos claims that invoices 1781 (October 2008), 1676 (October 2008) and 1489 (January 2008) are statute barred pursuant to the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B. All of the stated invoices were interim, however. None represented either the final interim invoice or the final invoice. The limitation period pursuant to the Limitations Act, therefore, did not start to run from the date of the respective invoices.

Order to go:

67Order to go as follows:

1. Nikolaso Lambrinos a.k.a. Nick Lambrinos a.k.a. Nikolaos Lambrinos shall pay Alan S. Price the sum of $20,450.52 within 45 days, for services rendered and yet unpaid.

2. The Statement of Claim issued is otherwise dismissed.

3. The Fresh as Amended Statement of Defence and Counter-Claim is dismissed.

4. The Plaintiff may send a draft judgment to my attention for signature. The Defendant’s approval of form and content is waived.

5. If the parties are unable to agree to a costs awards for this matter and considering Mr. Lambrinos’ stated difficulty with reading and writing, I will hear oral submissions of not more than one hour to be scheduled by counsel for the plaintiff on notice to the defendant. Any materials either party intends to rely upon at the costs hearing shall be served and filed 14 days prior to the scheduled hearing date, to permit Mr. Lambrinos to have someone assist with reading the documents upon which the plaintiff seeks to rely.

V.R. Chiappetta J.