CITATION: Buys v. Carrel + Partners, 2016 ONSC 822

COURT FILE NO.: CV-15-0462

DATE: 2016-02-02

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Robert Buys,

Daniel Matson, for the Applicant

Applicant

• and -

Carrel + Partners LLP,

Robert V. Botsford, for the Respondent

Respondent

HEARD: November 12, 2015, at Thunder Bay, Ontario

Regional Senior Justice D. C. Shaw

Reasons On Application For Assessment Of Accounts

[1] The applicant, Robert Buys, brings an application for an order for the assessment of the accounts of the respondent, Carrel + Partners LLP. Carrel + Partners oppose the application.

[2] In June 2011, Mr. Buys retained Samuel Bachinski, a partner in Carrel + Partners, to represent him in family law litigation which Mr. Buy’s wife had commenced in April 2011.

[3] Mr. Buys provided a retainer in the amount of $10,000 on June 20, 2011, which Mr. Bachinski held in trust throughout his representation of Mr. Buys.

[4] Between June 30, 2011 and February 28, 2013, Mr. Bachinski rendered 17 accounts to Mr. Buys, totalling $63,378.84, inclusive of fees and disbursements. Mr. Buys paid all the accounts.

[5] It appears that from June 20, 2011, until the end of March, 2013, Mr. Bachinski and Mr. Buys had a good working relationship. For example, in January 2013, Mr. Buys went so far as to write a letter to the Law Society of Upper Canada and to the President of the Thunder Bay Law Association in which he said he wanted “… to fully endorse/commend Mr. Samuel Bachinski and his team at Carrel + Partners in Thunder Bay”. However, the relationship came to an abrupt end, arising out of a heated telephone conversation between Mr. Bachinski and Mr. Buys on March 28, 2013. Mr. Buys disagreed with Mr. Bachinski on the wording that should be incorporated into a final order following Minutes of Settlement that Mr. Buys and his wife had signed. Mr. Bachinski deposes that in that telephone conversation he told Mr. Buys that he would not send him a further bill to wrap the file up. Mr. Buys denies that he was told that there would be no further accounts.

[6] On March 29, 2013, Mr. Bachinski received an e-mail from John Tamming, a lawyer in Owen Sound. Mr. Tamming advised that Mr. Buys had asked him to assess all of Mr. Bachinski’s accounts.

[7] On April 23, 2013, Mr. Buys sent an email to Mr. Bachinski in which he requested that “all services be withdrawn from your firm, Carrel + Partners immediately”. He also asked that his file be sent to him.

[8] On April 5, 2013, Mr. Bachinski’s assistant, on Mr. Bachinski’s instructions, sent Mr. Buys a Notice of Change in Representation for Mr. Buys’ execution. The Notice of Change In Representation was executed by Mr. Buys on May 4, 2013.

[9] On May 8, 2013, Mr. Bachinski sent to Mr. Buys the contents of his file and a trust cheque returning the $10,000 retainer.

[10] On June 18, 2013, Mr. Tamming wrote Mr. Bachinski and asked for the following to be forwarded to his office, immediately:

1. all correspondence, including all internal e-mails relating to Mr. Buys and all correspondence between Mr. Bachinski’s office and counsel for Mrs. Buys;

2. retainer agreement

3. firm explanation as given to clients re: fees;

4. all accounts rendered; and

5. complete trust ledger.

[11] On June 19, 2013, Mr. Bachinski sent Mr. Tamming copies of all correspondence between himself and Mr. Buys and between himself and counsel for Mrs. Buys, together with copies of all accounts rendered to Mr. Buys with an attached trust summary. Mr. Bachinski wrote that Mr. Buys was aware that he did not execute a retainer agreement. Mr. Bachinski said that they had discussed his rates and retainer before Mr. Buys had retained him and that Mr. Buys was notified of Mr. Bachinski’s increase in fees by correspondence dated November 10, 2011.

[12] On July 8, 2013, Mr. Bachinski wrote to Mr. Tamming and advised Mr. Tamming that he was not aware of any law that required him to produce daily dockets for Mr. Buys “… at this time … . As you are aware, Mr. Buy’s right to have his account assessed at this time is well expired.”

[13] On November 25, 2013, Mr. Buys signed a Requisition for Assessment under s. 3 of the Solicitors Act. No order for assessment was taken out at that time. A second Requisition for Assessment was signed by Mr. Buys on January 16, 2014. Again, no order for assessment was taken out. A third Requisition for Assessment was signed by Mr. Buys on February 10, 2014. An Order for Assessment was signed by the Registrar on March 3, 2014. An appointment to assess the costs of Carrel + Partners was set for July 30, 2014.

[14] On July 9, 2014, under the direction of the Court Services Division, Budget and Administration Office, a settlement meeting was held with respect to the accounts. The meeting was not successful in resolving the issue.

[15] Although the assessment was scheduled for July 30, 2014, it was adjourned because the Assessment Officer was of the view that the accounts were not properly before him by way of requisition under s. 3 of the Solicitors Act.

[16] As a result of the position taken by the Assessment Officer, Mr. Buys brought this application for an order that Mr. Bachinski’s accounts be assessed.

[17] During his preparation for this application, Mr. Bachinski came upon e-mails between his assistant, Adrianna Geravelis, and Mr. Buys. Ms. Geravelis had filled in for Mr. Bachinski’s regular assistant, who had been off sick between October 2012 and June 2013.

[18] It is apparent from the documents discovered by Mr. Bachinski that Ms. Geravelis assisted Mr. Buys, without Mr. Bachinski’s knowledge, after Mr. Bachinski’s retainer was terminated. This included providing Mr. Buys with information on how to assess Mr. Bachinski’s accounts. She also assisted Mr. Buys with the completion of his family law file and with a Small Claims Court action against Mrs. Buys. Ms. Geravelis subsequently left Carrel + Partners and became the assistant to Mr. Buy’s counsel on this application, who himself left Carrel + Partners, as an associate, in 2015.

[19] Mr. Buys deposes that although he paid Mr. Bachinski’s accounts as they were rendered, he was concerned throughout with the amounts of the accounts, which he believed were excessive. However, Mr. Buys deposes that he decided to continue with Mr. Bachinski until the file was complete because of the cost to have another lawyer take over the file. At that time, he says, he intended to review the work and its cost in its entirety. Mr. Buys deposes that he did not want to hurt his relationship with Mr. Bachinski by having each account assessed as it was rendered. He said he thought it better to wait until the litigation concluded.

[20] Mr. Buys states that after his family file was completed in August 2013 by his new counsel and after receiving the final account rendered by his new counsel, he decided to move forward with the assessment.

Submissions

A. Mr. Buys

[21] Mr. Buys submits that Mr. Bachinski never rendered a final account. Therefore, he contends, the order for assessment obtained by requisition on March 3, 2014, was within the one month time limit for orders obtained on requisition under s. 3(b) of the Solicitors Act. Section 3(b) provides:

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 delivery.

[22] Mr. Buys submits that the February 28, 2013, account never became a final account. He submits that if Mr. Bachinski did not want to bill him further, he should have sent a final account with a nil balance.

[23] In the alternative, Mr. Buys submits that if the February 28, 2013, account was a final account, the requisition order was still in time because under s. 4(1) of the Solicitors Act¸ as held by the Court of Appeal in Guillemette v. Doucet, 2007 ONCA 743, accounts may be assessed within two years of delivery, without requiring special circumstances.

[24] Section 4(1) provides:

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.

[25] In Guillemette, the Court of Appeal held that the 12 month limitation period under s. 4(1) of the Solicitors Act is trumped by the two year limitation period in the Limitations Act.

[26] Mr. Buys acknowledges that if the February 28, 2013, account is regarded as final, the Registrar should not have issued the assessment order on requisition and the order should have been obtained from this court. However, he submits that this is an irregularity which this court can correct.

[27] Mr. Buys acknowledges that because the accounts have been paid, he must establish that there are “special circumstances” within the meaning of s. 11 of the Solicitors Act.

[28] Mr. Buys submits that in this case special circumstances exist under s. 11 because although Mr. Buys paid the accounts, he raised the issue of excessive bills shortly after Mr. Bachinski’s retainer ended.

[29] Mr. Buys submits that the term “special circumstances” has different meanings in s. 3(b), s. 4 and s. 11 of the Solicitors Act.

[30] Mr. Buys submits that there is no evidence that the actions of Ms. Geravelis will prejudice Mr. Bachinski in the event that this court orders the accounts to be assessed.

(B) Carrel + Partners LLP

[31] The law firm submits that the February 28, 2013, account was a final account. As such, the order for assessment granted on March 3, 2014, is well out of time under s. 3(b) of the Solicitors Act, and is not valid.

[32] The law firm submits that Mr. Buys did not cause the within application to be issued until June 12, 2015, more than two years after the final account of February 28, 2013.

[33] The law firm submits that there are no special circumstances within the meaning of s. 11 of the Solicitors Act. The law firm submits that all payments were made by Mr. Buys promptly and voluntarily, with Mr. Buy’s expressing to the Law Society and to the Thunder Bay Law Association how satisfied he was with Mr. Bachinski’s work.

[34] The law firm submits that Mr. Buys has unreasonably delayed his application.

[35] The law firm submits that because Mr. Buys has paid his accounts and more than two years have passed, he must prove fraud or gross misconduct by Mr. Bachinski, none of which is alleged by Mr. Buys. The firm relies, in this regard, on Fellowes, McNeil v. Kansa Canadian Management Services Inc. 1997 CarswellOnt 2606, at para. 4:

The Solicitors Act, R.S.O. 1990, c. S. 15 makes no provision for the assessment of accounts paid more than twelve months before the application was made. While the court has inherent jurisdiction to order the assessment of such accounts, that jurisdiction is limited to circumstances amounting to fraud or gross misconduct: see Solicitor Re: (1930), [1931] D.L.R. 315 (Ont. C.A.).

[36] Carrel + Partners submit that all that Guillemette has done in this regard is to extend the fraud and gross misconduct criteria from one year to two years.

[37] Carrel + Partners submit that Mr. Buys admitted that there were no special circumstances on each of the occasions when he signed the three Requisitions for Assessment. The requisition forms contain the words “… the retainer of the solicitor not being disputed and there being no special circumstances”. The firm submits that special circumstances have the same meaning in s. 3(b) as in s. 4 and s. 11.

[38] Finally, Carrel + Partners submit that they will be prejudiced if an assessment is ordered because Ms. Geravelis assisted Mr. Buys in connection with the assessment of the accounts while she was employed by the firm. Mr. Bachinski deposes that at an assessment he will have to call Ms. Geravelis in order to prove his accounts. He says that he cannot trust her to tell the truth given what she has done.

Discussion

[39] Where solicitors perform services for a client in connection with the same matter, the limitation period for assessment under the Solicitors Act begins to run from the date of the final account, even if the interim accounts have been paid. See Price v. Sonsini (2002), 2002 41996 (ON CA), 22 C.P.C. (5th) 1 (C.A.) at para. 15.

[40] The issue of whether a bill is interim or final is a question of fact.

[41] In Enterprise Rent-A-Car Co. v. Shapiro, Cohen, Andrews, Finlayson 1998 CarswellOnt 707 (C.A.), at para. 13, the Court of Appeal stated:

The distinction between interim and final bills is well entrenched in our law and should be retained. … It must be recognized that some periodic bills can be final. A periodic bill can be final if it was the clear intention of both parties that the bill be final, the bill was one to which the solicitor had committed himself or herself and was one that can be assessed

[42] In my view, as the accounts were rendered, they were intended by Mr. Bachinski, and were viewed by Mr. Buys, to be interim accounts, including the February 28, 2013, bill. It was only after the falling out between Mr. Bachinski and Mr. Buys, on March 28, 2013, that Mr. Bachinski decided not to render any more accounts. There was unbilled time in Mr. Bachinski’s file on the family litigation between February 28, 2013, and the end of the relationship after the March 28, 2013, telephone call.

[43] However, despite the fact that both parties initially intended the 17 bills to be interim accounts, that situation changed after the solicitor-client relationship ended.

[44] As early as the day after the heated telephone call that brought the relationship of Mr. Buys and Mr. Bachinski to an end, Mr. Tamming wrote to Mr. Bachinski:

“Robert has asked me to assess all accounts rendered to him in this matter, the aggregate of which is frankly astounding given the issues at stake and the simplicity of this file. I am in the process of arranging an assessment date and will correspond further regarding available dates.”

[45] On April 23, Mr. Buys asked for his file and told Carrel + Partners to withdraw their services. On May 4, 2013, Mr. Buys executed the Notice of Change in Representation.

[46] In the context of these communications, on May 8, 2013, when Mr. Bachinski returned the $10,000 retainer and sent Mr. Buys his file, Mr. Buys should have reasonably understood that the February 28, 2013, account was Mr. Bachinski’s final account, that Mr. Bachinski had committed to that bill as his final account.

[47] I find, therefore, that the 30 day time limit under s. 3(b) of the Solicitors Act began to run on May 8, 2013. Therefore, the February 10, 2014, Requisition for Assessment and the resulting March 3, 2014, Registrar’s Order for Assessment were well outside the one month time limit of s. 3(b) of the Solicitors Act. To find otherwise would mean that Mr. Buys’ right to obtain an assessment by requisition would remain open indefinitely.

[48] I do not accept Mr. Buys’ submission that if the Registrar’s Order for Assessment was issued outside the one month time limit, it was a mere irregularity.

[49] As noted in Orkin, The Law of Costs (Toronto: Canada Law Book), at pp. 3-12 and 3-13, s. 3(b) of the Solicitors Act allows a client to obtain an order on requisition only when the four statutory conditions have been satisfied:

1. the retainer is not in dispute;

2. there are no special circumstances;

3. the bill is already delivered; and

4. the requisition is made within one month of the delivery of the bill.

The authority of the registrar to issue an order for assessment is limited by these statutory preconditions; the registrar has no inherent jurisdiction and therefore no authority to issue an order on requisition except as expressly conferred by the statute.

[50] In my view, the Registrar’s Order for Assessment was made without jurisdiction and was a nullity. It was not an irregularity that can be cured by order of this court.

[51] If May 8, 2013, was the day on which the limitation period began to run, then the fact that the within application was brought on June 12, 2015 brings it outside the two year limitation period of s. 4(1) of the Solicitors Act, read in conjunction with the Limitations Act.

[52] Where the application for assessment has not been brought within the two year limitation period of s. 4(1), no assessment may be directed except under special circumstances proved to the satisfaction of the court hearing the application.

[53] In addition, because the accounts have been paid, s. 11 of the Solicitors Act comes into play.

[54] With respect to s. 11, I do not accept the submission of Carrel + Partners that because the accounts have been paid, and because the application is outside the two year limitation period, the court’s jurisdiction to order the assessment of the accounts is limited to circumstances amounting to fraud or gross misconduct as held in Fellowes v. McNeil.

[55] When Fellowes v. McNeil was decided, s. 11 of the Solicitors Act provided:

11. The payment of a bill does not preclude the court from referring it for assessment, if the application is made within twelve months after payment, and if the special circumstances of the case, in the opinion of the court, appear to require the assessment.

[56] Section 11, which came into effect on January 1, 2004, now provides:

11. The payment of a bill does not preclude the court from referring it for assessment if the special circumstances of the case, in the opinion of the court, appear to require the assessment.

[57] The effect of this change in wording to s. 11 was discussed in Guillemette, at para. 14:

[14] The amendment to s. 11 deletes the requirement that the application for the assessment of a paid account be made "within 12 months after payment". Section 11 no longer imposes any time limit on the bringing of the application for an assessment of the paid accounts. The present s. 11, however, maintains the requirement that in all cases where the client seeks to assess paid accounts, the client must demonstrate "special circumstances". The "special circumstances" requirement reflects the commonsense inference that payment of an account implies an acceptance of the reasonableness of the account: Enterprise Rent-a-Car Co. v. Shapiro, Andrews, Finlayson, supra, at p. 265 O.R., Re Randell and Robins & Robins (1979), 1979 1921 (ON SC), 22 O.R. (2d) 642, [1979] O.J. No. 3451 (H.C.J.), at p. 643 O.R.

[58] In Guillemette, the client paid all her accounts on a timely basis and brought her application for assessment nearly three years after she received the solicitor’s last account. The Court of Appeal held that the client had to show special circumstances before an assessment could be ordered, because she was seeking to assess an account that had been paid: Solicitors Act, s. 11; and she also had to show special circumstances because she was seeking an assessment more than two years after the delivery of the accounts: Solicitors Act, s. 4 and Limitations Act, s. 4. That is the same situation that Mr. Buys faces.

[59] The Court of Appeal observed that the “special circumstances” relevant to allow an assessment of paid accounts will overlap with the “special circumstances” that are relevant to permit an assessment outside the lime limit of s. 4, as modified by the Limitations Act. The Court of Appeal expressly noted that “special circumstances” relevant to decisions under s. 4 and s. 11 will not necessarily be identical: para. 16.

[60] The Court held that s. 20 of the Limitations Act preserved the “special circumstances” set out in s. 4 of the Solicitors Act.

[61] The Court of Appeal observed that the interaction of the Limitations Act and the Solicitors Act means that there is no absolute time bar against applications for the assessment of lawyer’s accounts. The Court of Appeal found this to be justifiable because lawyers accounts have always been treated differently than other debts and it was consistent with the inherent jurisdiction of a superior court to review lawyers’ accounts quite apart from any statutory authority: para. 35.

[62] The Court stated, at para. 36:

[36] The passage of time, particularly a lengthy time period after a bill has been paid, will be a significant consideration in exercising the "special circumstances" discretion in both ss. 4 and 11 of the Solicitors Act. Time alone will not, however, preclude the examination of the suitability of a lawyer's accounts where other circumstances compel a review of those accounts

[63] There is nothing in Guillemette that leads to the conclusion that those “other circumstances” must be limited to circumstances showing fraud or misconduct.

[64] The Court of Appeal in Guillemette found that the client’s claim for an assessment was not time barred notwithstanding almost three years had passed between the delivery of the last account and issuance of the application.

[65] In effect, Carrel + Partners contends that although s. 11 has been amended to remove reference to 12 months, the two year limitation period in s. 4 should now be read into s. 11, so that proof of fraud or gross misconduct is required where the accounts have been paid and the application has been brought outside the s.4(1) limitation period. I decline to do so. Although the “special circumstances” in each of s. 4 and s. 11 may overlap, each section stands on its own.

[66] In Price v. Sonsini 2002 41996 (ON CA), 2002 CarswellOnt 2255 (C.A.), the Court of Appeal emphasized that the courts should ensure that a client’s request for an assessment is dealt with fairly and equitably despite procedural gaps or irregularities. At para. 19, the Court stated:

[19] Public confidence in the administration of justice requires the court to intervene where necessary to protect the client's right to a fair procedure for the assessment of a solicitor's bill. As a general matter, if a client objects to a solicitor's account, the solicitor should facilitate the assessment process, rather than frustrating the process. See Orkin, The Law of Costs, 2nd ed., (2001), at p. 3-13. In my view, the courts should interpret legislation and procedural rules relating to the assessment of solicitors' accounts in a similar spirit. As Orkin argues, "if the courts permit lawyers to avoid the scrutiny of their accounts for fairness and reasonableness, the administration of justice will be brought into disrepute."

[67] In my view there are “special circumstances” within both s. 4 and s. 11 of the Solicitors Act that entitle Mr. Buys to an order for an assessment.

[68] I will deal firstly with s. 11.

[69] The special circumstances in s. 11 relate to the underlying principle that payment of the account implies that the client accepted that the account was proper and reasonable: See Echo Energy Canada Inc. v. Lenczner Slaght Royals Smith Griffin LLP, 2010 ONCA 709, at para. 30. At para. 31 – 32:

[31] Thus, special circumstances will tend to either undermine the presumption that the account was accepted as proper or show that the account was excessive or unwarranted. ...

[32] The cases identify a number of circumstances in which the presumption may be rebutted. For example, clients cannot be expected to bring assessment applications while a solicitor is still representing them for fear of alienating the solicitor. Special circumstances may also exist if the client makes known its concerns within a reasonable time: see Enterprise Rent-a-Car, at p. 265 O.R. However, in the end, special circumstances is a fact-specific inquiry: Guillemette v. Doucet, at para. 4. Any number of factors specific to the particular case can amount to special circumstances if they undermine the presumption. …

[70] While Mr. Bachinski was representing Mr. Buys in his family litigation, it would not be reasonable to expect that Mr. Buys should have required Mr. Bachinski to assess his accounts yet maintain a workable solicitor-client relationship.

[71] Within 24 hours of the breakdown of the solicitor-client relationship on March 28, 2013, Mr. Buys, through his solicitor, Mr. Tamming, made it known that he wanted to assess all of Mr. Bachinski’s accounts. Mr. Tamming, on behalf of Mr. Buys, expressed the view that the amount of the accounts, in light of what was at stake and the “simplicity” of the file, was excessive.

[72] In the face of Mr. Buys’ objection to his accounts, it does not appear that Mr. Bachinski acted to facilitate the assessment process. Rather, on July 8, 2013, Mr. Bachinski stated to Mr. Tamming that Mr. Buys’ right to have his accounts assessed had expired. In my view, although Mr. Buys may not have had the right at that time to have the accounts assessed by way of an order on requisition, Mr. Buys’ right to have the accounts assessed had not “expired” five months after the delivery of the February 28, 2013, bill.

[73] The total of the accounts, $63,378.89, is also a factor in concluding there are special circumstances. This is a significant amount for a family law case which resolved early in the litigation process, without getting to the step of even a settlement conference. There was a case conference, two orders on consent and an unopposed divorce order, split from the other claims for relief. Mr. Bachinski may well be able to justify the accounts, and I do not discount the fact that Mr. Buys may have been a difficult client. However, there would be nothing unusual for a client to want to have an independent review of accounts of these amounts for this type of case.

[74] I note from my review of the accounts that there is no indication of how much time was spent by whom in the law firm. I also note that on July 8, 2013, Mr. Bachinski objected to the production of his daily dockets.

[75] I am, therefore, satisfied that Mr. Buys has rebutted the presumption that by paying the accounts he is implicitly understood to have accepted that they were proper and reasonable.

[76] I deal next with the special circumstances required to satisfy s. 4(1) of the Solicitors Act.

[77] As related above, Mr. Buys made clear to Mr. Bachinski, as of March 29, 2013, through Mr. Tamming, that he wanted to have the accounts assessed.

[78] Mr. Bachinski was, therefore, on notice, within less than 31 days after the delivery of his last account of February 28, 2013, that an assessment was likely to take place. He had the knowledge and opportunity from the very outset of the breakdown of his relationship with Mr. Buys to prepare for an assessment.

[79] Mr. Bachinski knew within 13 months from the last account that Mr. Buys had obtained an order for assessment, albeit the order was wrongly issued by the Registrar.

[80] Notwithstanding that the requisition order was a nullity, Mr. Bachinski attended a mediation with Mr. Buys in July 2014, under the auspices of the Court Services Division, to review the accounts and to attempt to resolve the issue. The mediation was not successful.

[81] The parties were scheduled to attend on an assessment of the accounts on July 30, 2014, before the Assessment Officer. The assessment was cancelled only when the Assessment Officer expressed his concern about the propriety of the requisition order.

[82] All of this was well within two years of the last account.

[83] In my view, the principle that the courts will ensure that a client’s request for an assessment is dealt with fairly is engaged in these circumstances. There is nothing unfair to Carrel + Partners in the way that Mr. Buys’ pursued the assessment. He paid his accounts and then notified Mr. Bachinski forthwith of his intention to seek an assessment. Both parties proceeded as if there would be an assessment.

[84] The special circumstances which I have described with respect to s. 11 also overlap with and apply as special circumstances related to s. 4.

[85] If I am wrong in my finding that the limitation period began to run as of May 8, 2013, and, if instead, it started at the some later date, or not at all because there has been no final account, then Mr. Buys’ application brought on June 12, 2015, would be within the two year time limit of s. 4 and no special circumstances would need to be shown to satisfy s. 4(1).

[86] Mr. Bachinski states that he will be prejudiced because he will require Ms. Geravelis to prove his accounts and he cannot trust her to be truthful on an assessment.

[87] Although the conduct of Ms. Geravelis, acting behind the back of Mr. Bachinski for the benefit of Mr. Buys after Mr. Bachinski’s retainer had ended, cannot be condoned, it is unlikely that her evidence would be required on an assessment to prove Mr. Bachinski’s accounts. It is Mr. Bachinski’s evidence that is material. In any event, if, for some reason, Ms. Geravelis was required by Mr. Bachinski to testify on the assessment, I cannot find on the evidence that she would not respect her oath and tell the truth.

[88] I do not accept the submission of Carrel + Partners that Mr. Buys was admitting that there were no special circumstances under s. 4(1) and s. 11 when he signed the three requisitions. I agree that “special circumstances” in s. 3, s. 4 and s. 11 must come within the general definition set out by the Court of Appeal in Rooney v. Jasinaki, 1952 115 (ON CA), [1952] O.R. 869, at p. 875, where the phrase:

“… has been interpreted to including any circumstances of an exceptional nature affecting the matter of costs or the liability of a solicitor’s client which a judge, in the exercise of his judicial discretion in each particular case, may consider to justify a taxation.”

[89] However, following Guillemette, the “special circumstances” referred to in the different sections of the Solicitors Act, while of a generally exceptional nature, are not necessarily identical.

Potential Conflict of Interest

[90] When this application was first before me in motions court on October 8, 2015, I raised with counsel the issue of whether there was a potential conflict of interest in the Johansen law firm acting for Mr. Buys. I adjourned the application to permit material to be filed on that issue if Carrel + Partners wanted to argue it. When the application was heard on November 8, 2015, counsel for Carrel + Partners advised that he was not objecting to the matter proceeding with Mr. Buys being represented by the Johansen law firm.

Conclusion

[91] For the reasons given, an order shall go requiring assessment by the Assessment Officer of the accounts rendered to the applicant by Carrel + Partners, attached as Exhibits “A” through “Q” of the Affidavit of Robert Buys, sworn June 3, 2015.

Costs

[92] If the parties are unable to agree on costs, the applicant shall deliver written submissions, not exceeding five pages, exclusive of his Bill of Costs, within 30 days. The respondent shall deliver its written submissions, not exceeding five pages, exclusive of any Bill of Costs it may wish to produce for comparison purposes, within 10 days of service of the applicant’s submissions. Otherwise, costs shall be deemed to be settled.

­____________________________

The Hon. Mr. Justice D. C. Shaw

Released: February 2, 2016

CITATION: Buys v. Carrel + Partners, 2016 ONSC 822

COURT FILE NO.: CV-15-0462

DATE: 2016-02-02

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Robert Buys,

Applicant

• and -

Carrel + Partners LLP,

Respondent

REASONS ON APPLICATION FOR ASSESSMENT OF ACCOUNTS

Shaw R.S.J.

Released: February 2, 2016

/mls