CITATION: Tsigirlash v. Walker, 2016 ONSC 968
COURT FILE NO.: 13-54869
DATE: 2016-02-16
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
George Tsigirlash
Self-Represented Applicant
Applicant
- and -
George F. Walker Q.C.
Robert Macdonald, for the Respondent
Respondent
HEARD: December 15, 16 & 17, 2015
The Honourable Justice C.D. Braid
REASONS FOR JUDGMENT
I. OVERVIEW
[1] George Tsigirlash (“Tsigirlash”) brought an application under the Solicitors Act, R.S.O. 1990, c. S.15, seeking to assess the accounts of his former solicitor, George Walker (“Walker”). Tsigirlash seeks to assess all accounts rendered by Walker (“the accounts”).
[2] The application was converted to the trial of an issue, which proceeded before me as a contested hearing. At the conclusion of the trial, I dismissed the application with brief reasons. I advised that more thorough reasons would follow. These are my reasons.
II. NATURE OF THE PROCEEDINGS
[3] The Solicitors Act sets out various rules regarding the assessment of a lawyer’s account. Section 3(b) of the Solicitors Act provides that, where a lawyer's retainer is not disputed and there are no special circumstances, an order for assessment of the lawyer's bill may be obtained from the Registrar on requisition by the client within one month of the delivery of the bill. Accounts that are more than one month old cannot automatically be referred for assessment. The client must make application to the court for an assessment and must establish that there are special circumstances.
[4] Section 11 of the Solicitors Act states that 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. If the accounts have been paid, there is a presumption of reasonableness. This presumption can be rebutted by the client showing special circumstances.
[5] In addition to the provisions of the Solicitors Act, the court has inherent jurisdiction to direct an assessment when appropriate.
[6] In the case before the court, Tsigirlash brought an application to assess the accounts approximately four months after the date of the final account. Because of the factual disputes on this application, the court directed a trial of an issue and set out four issues to be addressed at the trial before me:
i. What was the nature and terms of the retainer between Tsigirlash and Walker?
ii. What payments were made to Walker?
iii. Is Tsigirlash entitled to an assessment without showing special circumstances?
iv. Has Tsigirlash shown any special circumstances?
III. EVIDENCE AT TRIAL
A. Facts Not In Dispute
[7] Tsigirlash operated a business called Auto Enterprise Inc. He retained Walker in 2006 and 2007 to assist him with criminal charges and with a licensing issue before the Ontario Motor Vehicle Council. Those matters were completed to the satisfaction of Tsigirlash.
[8] In 2011, Tsigirlash was charged in St. Catharines with a number of frauds and other offences related to the sale of auto parts and automobiles. The Crown alleged that Auto Enterprises Inc. was a “chop shop” where stolen cars were stripped of their parts and VIN numbers, and then re-sold. Five police forces conducted a joint project to investigate and trace the stolen vehicles and parts from Auto Enterprises Inc. After the first set of charges was laid in 2011, additional charges of a similar nature were laid in St. Catharines and Toronto.
[9] Tsigirlash initially retained defence counsel Gary Batasar. By the end of September 2011, he decided to retain Walker. On or about September 29 and September 30, 2011, Tsigirlash met with Walker at his law office. Heather Leake (“Leake”), Walker’s legal assistant, was present in the office on those dates.
[10] Walker is a criminal defence lawyer in the City of St. Catharines. He was called to the bar in 1971 and has been certified by the Law Society of Upper Canada as a specialist in criminal law.
[11] On September 30, 2011, Tsigirlash signed a detailed retainer agreement entitled “Compliance Retainer Agreement”. The document stated the following in the fourth paragraph: “I further agree to deposit the sum of $20,000 plus the 13% HST as a retainer, and understand and agree that your account for services rendered will be based on $350 per hour and $3,500 per diem counsel fee for time spent on my file, plus disbursements made on my behalf.”
[12] The first Preliminary Hearing began February 12, 2013, and was completed on April 22, 2013, at which time Tsigirlash consented to his committal for trial on those charges. The second preliminary hearing commenced on April 22, 2013, on the second set of charges. On July 31, 2013, Tsigirlash attended court and counsel advised that he consented to his committal for trial on the last four charges. There is a dispute about whether he actually provided instructions to consent to committal, which I will address further in my reasons below.
[13] Walker brought a motion in Superior Court returnable August 20, 2013, seeking to be removed from the record as counsel due to a breakdown in the solicitor-client relationship. In September 2013, orders were obtained removing Walker from the record on all charges.
[14] The trial on Tsigirlash’s charges proceeded in April, May and June 2015. On June 22, 2015, Tsigirlash was convicted of two counts of fraud and fourty counts of possession of stolen property.
B. The Accounts
[15] The following is a list of the accounts:
i. January 9, 2012 - $9,618.15. This account was paid from money held in trust and showed a balance owing of “NIL”. The account also stated that the balance remaining in trust was $381.85.
ii. February 20, 2012 - $50,627.53. Some money was transferred from trust, and the second account showed a balance owing of $13,245.68.
iii. April 25, 2013 - $3,107.50. When added with the unpaid balance from the previous account, the third account showed a balance owing of $16,353.18.
iv. July 15, 2013 - $847.50 (disbursement only - for agent account). When added with the unpaid balance from the previous account, the fourth account showed a balance owing of $3,200.68.
v. August 19, 2013 - $282.50 (disbursement only – for agent account). When added with the unpaid balance, the fifth account showed a balance owing of $3,483.18.
vi. August 26, 2013 - no fee. The sixth account reflected Walker’s appearance in court to address his removal from the record and there was no charge for that attendance. The account showed the unpaid balance owing from the fifth account of $3,483.18.
[16] The total amount of fees charged by Walker was $64,483.18.
[17] The first account was dated January 9, 2012, and the final account was dated August 26, 2013. Tsigirlash did not seek to have the accounts assessed during this period. The application seeking to assess the accounts was brought in December of 2013, approximately four months after the date of the final account.
C. The Payments
[18] The parties agree that, on the following dates, payments were made toward Tsigirlash’s retainer/account. Leake issued receipts for these payments:
a) October 5, 2011 - two postdated cheques for $5,000 each (dated October 12 and October 21, 2011). The cheque dated October 12, 2011 was returned as NSF.
b) October 17, 2011 - $5,000 bank draft to replace the NSF cheque.
c) December 21, 2011 - $7,000 cheque.
d) February 17, 2012 - $10,000 and $20,000 bank drafts.
e) May 14, 2013 - $5,000 cheque.
f) June 20, 2013 - $5,000 cheque.
g) July 2, 2013 - $4,000 cheque.
[19] The payments listed above total $61,000.
[20] Tsigirlash stated that he provided an additional payment of $20,000 cash as an initial retainer. This is disputed by Walker and will be addressed below.
D. Evidence of George Tsigirlash
[21] Tsigirlash testified that Walker approached him at the courthouse on September 27 or 28, 2011 and said “I am the man for you”; and that, if he wanted to retain Walker, he should bring in twenty thousand dollars cash. Tsigirlash stated that Walker told him he wanted cash so that the police would be less likely to take the money as proceeds of crime.
[22] Tsigirlash initially testified that he went home and spoke to his wife. He told her that they needed customers to pay cash so that he could put together $20,000 cash. He brought the money to Walker on September 30, 2011.
[23] Tsigirlash stated that two vehicle repair jobs at Auto Enterprises Inc. were paid in cash; and that this money was used to pay Walker a $20,000 cash retainer. Affidavits from two customers were filed. These invoices state that they were paid on September 26 and September 29, 2011. The customers who were said to have paid these invoices were not produced for cross-examination at trial, despite court direction to make them available.
[24] When Tsigirlash was cross-examined about the fact that the first invoice was paid in cash by the client on September 26, 2011 (prior to the discussion with Walker), his evidence changed. He stated that he was in the process of gathering money for his previous counsel. He told his wife that he was changing lawyers and that he needed the money to retain Walker.
[25] Tsigirlash stated that he also wrote a cheque for $2,950 payable to “cash” (dated September 22, 2011) to bring the amount of cash up to $20,000. Tsigirlash did not explain why the cheque written to cash was dated almost a week before his first discussion with Walker. It is also not clear why the total amount of the two invoices plus the amount of the cashed cheque totaled more than $21,000.
[26] Tsigirlash provided two different account transaction sheets to support his position that he took $20,000 cash from his business for the cash retainer. It was unclear who prepared these transaction sheets and when they were prepared. When asked about inconsistencies on these statements, Tsigirlash testified that they were “just a guide” and acknowledged that they may have been prepared much later than when the transactions occurred. When Tsigirlash was asked to provide electronic data in support of these transaction sheets, he was unable to do so. The court was unable to verify the authenticity or strength of the underlying electronic data as a result.
[27] On September 30, 2011, Walker drafted a letter to former counsel Batasar requesting the file and a memo to the Crown regarding his retainer. Tsigirlash stated that, without that retainer, Walker would not have done any work on his behalf. Tsigirlash argued that this is proof that he paid the $20,000 cash retainer.
[28] Tsigirlash stated that he should not have been billed for the work by Robin McKechney (“McKechney”). Tsigirlash stated that, on January 10, 2013, neither he nor the officer in charge of the investigation could locate McKechney at the courthouse. However, a transcript from that court appearance demonstrates that McKechney appeared in court with Tsigirlash when he was released on a recognizance of bail. It is clear that McKechney negotiated Tsigirlash’s release that day. When Tsigirlash was confronted with this transcript, he agreed that McKechney was in court but did not remember meeting with him in the cells.
[29] Tsigirlash said that he was not aware that Walker would be out of the country during the months prior to the preliminary hearing. He stated that Walker failed to engage in any meaningful discussion with him prior to the preliminary hearing and did not prepare sufficiently for the hearing.
[30] Tsigirlash stated that Walker gave him the keys to his office and asked him to prepare a summary of the disclosure on his file. Even though Tsigirlash felt that Walker was unprepared, he did not want the preliminary inquiry to be delayed and decided that it should proceed. Tsigirlash stated that, without his instructions or consultation and to his surprise, Walker conducted a preliminary inquiry in the nature of a discovery and not a true preliminary inquiry as he had understood. Tsigirlash stated that he was not aware of this change in procedure and felt that little was gained from conducting the preliminary inquiry in this manner.
[31] Tsigirlash stated that, during the preliminary inquiry, Walker refused to direct questions to the witnesses in the manner that he had requested and refused to cover areas that he had asked Walker to cover. Tsigirlash was displeased with Walker’s performance at the preliminary inquiry and his lack of knowledge of the file. Tsigirlash stated that the relationship deteriorated at this point. He said that he expressed his concerns about the quality of his representation on April 23, 2013, but decided not to seek new counsel since he had paid a lot of money that he expected to see him through to the end of the preliminary hearing.
[32] Tsigirlash said that he never accepted that committal for trial was a foregone conclusion. In his view, the case against him was “entirely without merit.” He stated that he did not consent to being committed for trial. However, a transcript from the court appearance of Tsigirlash consenting to committal was presented to him during his cross-examination. It is clear that Tsigirlash was present during that appearance and he did not voice any concerns about the consent to committal for trial.
Credibility of Tsigirlash
[33] Walker argues that the sworn evidence of Tsigirlash has been recently rejected by the court in two separate cases. In Tsigirlash’s criminal case, he complained about inadequate representation at the preliminary hearing and applied to set aside his committal for trial. That application was dismissed. Walker submits that issue estoppel is engaged regarding the complaints about legal representation at the preliminary hearing.
[34] However, Walker was not a party to the criminal proceedings. I do not accept that the same issues are engaged in this case and I will not rely on issue estoppel. In my assessment of the evidence of Tsigirlash, I did not put any weight on credibility findings of other courts. I have assessed the credibility of Tsigirlash based on the evidence before me.
[35] In my view, Tsigirlash’s version of events makes no sense. The following portions of his evidence are particularly troubling:
The first account showed $9,618.15 in fees and a balance remaining in trust of $381.85. Tsigirlash admitted that he did not ask Walker about where the $20,000 retainer had gone. When he was asked about this during cross-examination, Tsigirlash stated that he “never had an idea to question him about it.” If Tsigirlash had actually paid $20,000 cash, one would think that he would have immediately spoken to Walker when he received the first account.
In fact, Tsigirlash did not raise the issue of the $20,000 cash retainer until this application was commenced.
Since the two customers who paid cash were not produced for cross-examination, I have assigned their evidence no weight. Even if I had considered these affidavits, they are wholly unhelpful. One customer paid $9,375 in cash on September 26, 2011, and a second customer paid $8,983.50 in cash on September 29, 2011. The cheque written to cash and the payment of one of the invoices occurred prior to the first meeting with Walker, which contradicts Tsigirlash’s evidence.
Tsigirlash stated that he paid Walker a $20,000 cash retainer then brought two postdated cheques of $5,000 each less than a week later. Tsigirlash could not adequately explain why he paid such a large sum of cash but then provided two sizable cheques less than a week later.
Tsigirlash testified that, on April 23, 2013, he expressed concerns about the quality of Walker’s representation. However, he could not adequately explain why he made three large payments totaling $14,000 after that date.
Tsigirlash knew that the preliminary hearing was being conducted as a discovery type process as there was no judge present during the preliminary hearing. He was present when counsel consented to committal for trial on his behalf. He did not raise any concerns with proceeding in this fashion. I do not accept his explanation that he did not consent to or understand the process.
[36] I have carefully considered the evidence of Tsigirlash. In my view, his evidence was self-serving, contradictory, illogical and wholly unreliable. He was evasive during cross-examination. Tsigirlash made various statements under oath that are directly contradicted by court transcripts, documentary evidence or his own evidence.
[37] When Tsigirlash was confronted with evidence that contradicted his position, he tried to present himself as unsophisticated. He said that English was not his first language and that he did not understand portions of his own affidavit as drafted by his lawyer or the questions put to him in court. In my assessment, Tsigirlash had a good grasp of the English language. He owned a successful business. I do not accept his explanations, and I find that he was deliberately misleading in many areas.
E. Evidence of George Walker
[38] Walker denied soliciting Tsigirlash as a client in the hallway of the courthouse and denied asking Tsigirlash for a cash retainer of $20,000.
[39] Walker stated that Tsigirlash requested an appointment and then attended at his office on September 29, 2011. At Tsigirlash’s request, Walker drafted a letter to counsel Batasar regarding Tsigirlash’s account with Batasar. Tsigirlash made a further appointment for the next day, and he re-attended on September 30, 2011.
[40] With respect to the retainer agreement, Walker stated that Tsigirlash agreed to bring in four postdated cheques for the retainer amount. Walker had previously acted for Tsigirlash, and he believed that he would bring in the cheques.
[41] Walker strenuously denied that any payment of $20,000 in cash was made on September 30, 2011, or at all. Walker said that, as a matter of practice, he does not accept cash retainer payments from clients. He further stated that he especially would not have accepted a cash retainer payment from Tsigirlash because he knew that Tsigirlash was charged with serious offences and because he had already complained about Batasar’s fees.
[42] Walker stated that he advised Tsigirlash that he would be out of the country from late December 2012 until January 30, 2013. Walker spent a few months out of the country each winter. He had ongoing telephone contact from his out of country office with Tsigirlash regarding new charges; he spoke to police about the new charges; and he retained a lawyer as agent to assist with bail.
[43] Walker stated that he permits all of his clients to review their Crown disclosure in the office. He permitted Tsigirlash access to his office to make notes of any questions in his review of the Crown disclosure. Walker stated that he did not ask Tsigirlash to prepare a summary of the disclosure.
[44] Walker returned to the office by January 31, 2013. Walker testified that he properly prepared for the preliminary hearing and acted in accordance with Tsigirlash’s instructions. Walker said that he reviewed the purpose of the preliminary hearing with Tsigirlash at length and advised him of legal principles relating to committal for trial. Walker gave him his opinion that Tsigirlash would be committed for trial. Walker recommended proceeding with the preliminary hearing as a discovery type process.
[45] Walker said that, as a result of his efforts, the Crown withdrew ten of the fourty sub-counts in count 13 during the preliminary hearing. Walker stated that he met with Tsigirlash on June 19, 2013, to discuss the case and Tsigirlash provided instructions that he would consent to committal for trial on the balance of the charges. Both preliminary hearings were completed by July 31, 2015.
[46] Walker stated that he sought to be removed from the record because of Tsigirlash’s frustrating conduct. Tsigirlash was charged with breaches of recognizance and failed to follow Walker’s advice on a number of occasions, which had a negative impact on Tsigirlash’s defence. Tsigirlash provided misinformation to Walker and missed an important appointment with Walker on August 12, 2013. At that point, Walker realized that the lawyer/client relationship was over. Walker stated that Tsigirlash never expressed displeasure about his conduct in the preliminary hearing until Walker gave notice of his request to be removed from the record on August 15, 2013.
[47] On August 27, 2013, counsel Mr. Lebovits attended a judicial pretrial and then attended court when the Toronto charges were withdrawn. Walker stated that the Crown’s decision to withdraw the Toronto charges occurred as a result of Walker’s discussion regarding the weaknesses in the Crown case prior to that court attendance.
Credibility of Walker
[48] Walker presented his evidence in a straightforward manner. He was defensive at times but was not evasive and did not contradict himself. Walker denied having received a $20,000 cash retainer, which was corroborated by the evidence of Leake. Considering the entirety of his testimony, I find Walker to have been a credible witness.
[49] Walker was cross-examined regarding the hours billed and the tasks completed. Walker relied on detailed notes of his work when explaining the accounts, and was able to justify and explain the time entries. I find that his explanations were reasonable and none of the account billings appeared to be excessive.
[50] Where the evidence of the parties differed, I accept the evidence of Walker over that of Tsigirlash.
F. Evidence of Heather Leake
[51] Leake is a legal assistant in Walker’s office and has worked there for 23 years. She is responsible for the banking, office accounting and issuing invoices related to Walker’s law practice.
[52] Leake was present with Walker and Tsigirlash during the entire meetings on September 29 and 30, 2011. Leake stated that no cash deposit or payment was ever made with respect to Tsigirlash’s account, and was adamant that Tsigirlash did not provide $20,000 cash to Walker.
[53] Leake prepared the accounts issued by Walker to Tsigirlash, which were sent by regular mail to Tsigirlash’s home address in Niagara-on-the-Lake. She testified that the accounts were sent on the dates listed on the applicable accounts. None of the accounts were returned to Walker’s office as being undelivered or undeliverable. It is worth noting that Tsigirlash was on bail during the time when the accounts were mailed, and the address where the accounts were sent is the same address noted on his recognizance of bail and on the retainer agreement.
Credibility of Leake
[54] In my view, Leake was an excellent witness. She was articulate, straightforward and clear. I accept her evidence in its entirety. Where their evidence conflicts, I accept the evidence of Leake over that of Tsigirlash.
G. Evidence of Robin McKechney
[55] McKechney is a lawyer in Toronto who was called to the bar in 2002. On January 9 and 10, 2013, he acted as agent for Walker in representing Tsigirlash. McKechney provided his evidence by affidavit and Tsigirlash did not seek to cross-examine him.
[56] On January 9, 2013, McKechney spoke to Walker by phone and received instructions regarding Tsigirlash’s bail hearing in Toronto the next day. McKechney also spoke to the officer in charge and with Tsigirlash and his wife.
[57] On January 10, 2013, McKechney attended at court and met with Tsigirlash in the cells. He also met with Tsigirlash’s wife and with the Crown. He met with the Crown and the investigating officers and negotiated Tsigirlash’s release. McKechney reviewed the proposed terms of release with Tsigirlash in the cells and received his instructions that the terms were acceptable. McKechney attended in bail court with Tsigirlash, at which time he was released on bail.
[58] Since Tsigirlash did not seek to cross-examine McKechney on his affidavit, I accept McKechney’s evidence in its entirety.
IV. FINDINGS OF FACT REGARDING MATTERS IN DISPUTE
[59] I make the following findings of fact regarding matters that are in dispute:
I find, as a fact, that Tsigirlash did not provide Walker with a $20,000 cash retainer.
I find that Walker was properly prepared for the preliminary inquiry and that a committal for trial was inevitable. I accept his evidence that it was an appropriate tactic to consent to committal at the preliminary inquiry and thereby gain other advantage for the client, including the withdrawal of charges.
I accept that Tsigirlash was advised of his rights and of the advantages of proceeding with the consent committal. I accept Walker’s evidence that he met with Tsigirlash in obtaining those instructions. Walker sent a confirmatory letter to Tsigirlash following that meeting, which provides further support for Walker’s position. In addition, Tsigirlash did not object when counsel stated his consent to committal in court. His consent was informed and appropriate in the circumstances of this case.
Tsigirlash stated that he was upset that Walker did not ask certain questions of the witnesses. However, I accept Walker’s evidence that a large part of deciding what questions to ask is legal strategy, given the low threshold for committal for trial at a preliminary inquiry. Walker is an experienced criminal litigator who conducted the preliminary hearing properly.
I find that Tsigirlash was aware that Walker regularly took vacation in the winter months, and that there were no excessive court attendances during Walker’s absence.
The breakdown in the solicitor-client relationship did not occur until Walker served notice of intending to be removed from the record in August 2013 and Tsigirlash did not oppose Walker being removed from the record.
I find, as a fact, that the accounts were delivered on the dates on each of the six accounts.
Tsigirlash only raised concerns about the accounts four months after the final account had been sent, which was well after the retainer had concluded. He did not voice dissatisfaction with the quality of Walker’s work and continued to make ongoing payments. Tsigirlash has not explained why it took four months after the final account before he decided to assess the accounts.
The bulk of the work was completed by the time of the third account, which was followed by three large payments made by Tsigirlash.
On January 10, 2013, McKechney attended as counsel for Tsigirlash at court, and his agency bill is appropriate.
The accounts were in accordance with the retainer agreement signed by Tsigirlash.
Walker issued accounts that were detailed and precise regarding the work done, the date of service rendered, hours spent and a description of services rendered for all fees charged as well as details of the disbursements.
The criminal fraud case against Tsigirlash was complex. The investigation involved numerous police forces and culminated in more than 50 charges against Tsigirlash. Walker’s accounts were reasonable given the complexity of this case.
Tsigirlash made numerous payments on an ongoing basis, which demonstrates acceptance of the accounts. Four of the accounts have been paid in full. Tsigirlash has not rebutted the presumption that the accounts are fair and reasonable. He has not provided any evidence that the accounts are outside the retainer agreement.
V. ANALYSIS
[60] I have carefully considered the following:
i) The submissions of Tsigirlash and the capable submissions made on his behalf by his former counsel Mr. Munro in a factum that was filed;
ii) The submissions of Mr. MacDonald on behalf of Walker as well as his factum; and
iii) The case briefs filed by Mr. Munro and Mr. MacDonald.
A. The Applicable Legal Principles
[61] In this case, six accounts were delivered over the course of the retainer. I find that there were five interim accounts, and the final account was sent on August 26, 2013. The relevant time period under the Solicitors Act did not begin to run until the final account was rendered (Coventree Inc. v. Stockwoods LLP, 2012 ONSC 2737).
[62] The Solicitors Act permits a client to apply for the assessment of delivered accounts in the following circumstances:
i. Upon requisition, from the registrar, within thirty days of delivery (provided that there are no special circumstances and the retainer is not disputed). There is no distinction between paid and unpaid accounts (s. 3(b));
ii. After twelve months of delivery, if special circumstances are shown. Again, there is no distinction between paid and unpaid accounts (s. 3(b));
iii. Within twelve months after payment on showing "special circumstances" (s. 11)
(Enterprise Rent-a-Car Co. v. Shapiro, Cohen, Andrews, Finlayson (1998), 1998 CanLII 1043 (ON CA), 38 O.R. (3d) 257 (C.A.), at para. 8).
[63] More than one month has passed since the delivery of the final account. As a result, Tsigirlash must demonstrate special circumstances in order to obtain an order for assessment.
[64] The Court has an inherent jurisdiction to order an assessment of accounts. This inherent jurisdiction may be applied to ensure that a client’s request for an assessment is dealt with fairly and equitably (Price v. Sonsini, 2002 CanLII 41996 (ON CA), [2002] O.J. No. 2607 (C.A.), at para. 19).
[65] There is a presumption that payment of an account demonstrates that the client accepted the account as reasonable and proper. However, that presumption may be rebutted by the client. Section 11 of the Solicitors Act states that 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 (Bui v. Alpert, 2014 ONCA 495). The presumption that the client must rebut is that, when it paid the accounts, it is presumed to reflect its acceptance of the reasonableness of those accounts (Echo Energy Canada Inc. v. Lenczner Slaght Royce Smith Griffin LLP, 2010 ONCA 709, 104 O.R. (3d) 93, at para. 66).
[66] Payment of solicitors' accounts signifies an implied acceptance of its reasonableness; this is even more so when accounts are rendered on a regular basis and paid over the course of several years (Gordon v. Osler, Hoskin & Harcourt, [1994] O.J. No. 2023 (C.J. Gen. Div.)).
[67] The jurisprudence suggests that unpaid accounts should be referred to assessment if it is just and equitable to do so in all the circumstances. The threshold for obtaining an order referring recent unpaid accounts to assessment is generally not a high one (Coventry Inc.).
B. TRIAL ISSUES
i. What was the nature and terms of the retainer between Tsigirlash and Walker?
[68] I find that the retainer agreement is captured in the “Compliance Retainer Agreement” that was signed by Tsigirlash on September 30, 2011. The agreement permitted the retainer of agents and set out the hourly and per diem rates that Walker was entitled to charge. Tsigirlash agreed to provide Walker with postdated cheques to satisfy his initial retainer.
ii. What payments were made to Mr. Walker?
[69] I find that Tsigirlash did not pay Walker a $20,000 cash retainer. The only payments made to Walker are as set out above under the heading “The Payments”. The payments were made between October 5, 2011 and July 2, 2013 and totalled $61,000.
iii. Is Tsigirlash entitled to an assessment without showing special circumstances?
[70] In this case, the first three accounts have been paid in full. The fourth and fifth accounts are for disbursements only. Walker paid these disbursements out of pocket. The sixth account does not contain any charges.
[71] Because more than one month had passed since the delivery of the accounts, Tsigirlash must show special circumstances in order for the court to grant leave to assess the accounts.
[72] The first three accounts have been paid so there is a presumption of reasonableness. Tsigirlash must rebut that presumption by demonstrating special circumstances.
iv. Has Tsigirlash shown any special circumstances?
[73] The term ‘special circumstances’ has been judicially interpreted as ‘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 as justifying a taxation’ (Malamas v. McCarthy Tetrault, [2001] O.J. No. 1311 (S.C), at para. 2; aff’d in part at [2002] O.J. No. 916 (C.A.)). Special circumstances (within the meaning of section 11 of the Solicitors Act) will tend to undermine the presumption that the account was accepted as proper or show that the account was excessive or unwarranted (Echo Energy Canada Inc., at para. 31).
[74] I find that Tsigirlash has not demonstrated “special circumstances” to justify referral to assessment and/or to rebut the presumption of reasonableness for the paid accounts.
[75] The first three accounts have been paid, and Tsigirlash continued to make significant payments after the third account. The final three accounts are only for disbursements, and do not include any billing for Walker’s time spent on the file. In all of the circumstances, it would not be appropriate to exercise my inherent jurisdiction to order an assessment of the accounts, separate and apart from the provisions of the Solicitors Act.
VI. DISPOSITION
[76] In the result, the application is dismissed.
VII. COSTS
[77] In the event that the parties cannot agree as to costs, they are directed to provide written submissions as to costs. The submissions shall be no longer than two typed pages, double-spaced, in addition to any relevant offers or Bill of Costs. Walker shall provide cost submissions by March 7, 2016 and Tsigirlash shall provide any response by March 29, 2016.
Braid, J.
Released: February 16, 2016
CITATION: Tsigirlash v. Walker, 2016 ONSC 968
COURT FILE NO.: 13-54869
DATE: 2016-02-16
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
George Tsigirlash
Applicant
- and –
George F. Walker Q. C.
Respondent
REASONS FOR JUDGMENT
CDB
Released: February 16, 2016