Superior Court of Justice - Ontario
CITATION: Zaldin v. Chandra, 2017 ONSC 7143
COURT FILE NO.: CV-13-2002-00
DATE: 20171130
RE: Ronald Victor Zaldin, Solicitor (Moving Party)
AND:
Satish Chandra, Client (Responding Party on the Motion)
BEFORE: Petersen, C.
COUNSEL: R. Schipper, counsel for the Solicitor/Moving Party
A. Toor, agent for the Client/Responding Party
HEARD: November 24, 2017
ENDORSEMENT
[1] The solicitor in this matter, Ronald Zaldin was retained by Satish Chandra in connection with a family law case. Mr. Chandra took issue with Mr. Zaldin’s accounts and obtained an Order for Assessment from the Registrar on May 8, 2013. The Assessment Order relates to 17 accounts issued by Mr. Zaldin in 2012, totaling approximately $140,000 (including both fees and disbursements).
[2] No assessment hearing has been conducted, but the file has not been dormant. The parties appeared before an Assessment Officer on three occasions in October 2015, December 2015 and January 2016. At the October 9, 2015 appearance, Assessment Officer Thomas gave the following directions:
(1) November 17, 2015 dockets
(2) December 14, 2015 objections
[3] The parties share an understanding that these directions signify that Mr. Zaldin was to deliver copies of his detailed dockets to Mr. Chandra by November 17, 2015 and Mr. Chandra was to provide Mr. Zaldin with particulars of his objections to the disputed accounts by December 14, 2015.
[4] In addition to appearances before the Assessment Officer, there have also been a number of motions brought by the parties. Some of the motions were withdrawn or otherwise resolved without a hearing. One of the motions resulted in an Interlocutory Order of Justice Donohue dated May 19, 2016, which is set out in detail below.
[5] Both parties have expressed frustration about the delay in getting to an assessment hearing, which has yet to be scheduled. Each party blames the other for the delay.
Issues
[6] In the Motion before me, Mr. Zaldin asks the Court to set aside the May 8, 2013 Assessment Order and dismiss all of Mr. Chandra’s claims in the assessment proceeding based on Rule 60.12(b) of the Rules of Civil Procedure. The grounds for the request are Mr. Chandra’s alleged failure to comply with the October 9, 2015 directions of Assessment Officer Thomas, non-compliance with Justice Donohue’s May 19, 2016 Interlocutory Order, and overall delay in prosecuting the matter. In the alternative, if the Assessment Order is not set aside, Mr. Zaldin requests an Order compelling Mr. Chandra to submit to a full day of examination for discovery pursuant to Rules 54 and 55. (As Justice Donohue noted in her Endorsement dated May 19, 2016, the parties agree that an assessment of costs by an Assessment Officer constitutes a Reference with a Referee and is governed by Rules 54 and 55.)
[7] Having reviewed the record and considered the parties’ submissions, I have concluded, for the reasons set out below, that there is no basis to order the relief requested by Mr. Zaldin.
Delay
[8] Although the delay in this matter has been extensive (4.5 years) if counted from the date that the Assessment Order was obtained (May 8, 2013), it would be unfair to use that commencement date to calculate the period of delay attributable to Mr. Chandra, since Mr. Zaldin did not produce detailed dockets relating to his disputed accounts until February 1, 2016. Mr. Chandra cannot reasonably have been expected to particularize his complaints about the accounts, or take other steps to proceed to an assessment hearing, until he was provided a copy of Mr. Zaldin’s detailed dockets.
Non-Compliance with Officer Thomas’s Directions
[9] Mr. Zaldin submits that Mr. Chandra failed to comply with Assessment Officer Thomas’s October 9, 2015 direction to provide Mr. Zaldin with particulars of his objections to the accounts by December 14, 2015.
[10] The record shows that Mr. Chandra did not deliver particulars of his complaints until May 13, 2016. However, he ought not to be held to the original December 14, 2015 deadline because Mr. Zaldin failed to comply with Officer Thomas’s direction to deliver a copy of his detailed dockets to Mr. Chandra by November 17, 2015.
[11] Copies of the detailed dockets were only produced after Mr. Chandra brought a motion to compel Mr. Zaldin to comply with Officer Thomas’s direction. That motion was settled on the basis that Mr. Zaldin agreed to deliver his detailed dockets and pay costs in the amount of $1,500 to Mr. Chandra.
[12] Assessment Officer Thomas’s directions gave Mr. Chandra one month to particularize his objections after receiving Mr. Zaldin’s detailed dockets. Since Mr. Zaldin did not deliver the dockets until February 1, 2016, in my view, Mr. Chandra was relieved of his obligation to particularize his objections by December 14, 2015. The correctness of this interpretation of Officer Thomas’s October 9, 2015 directions is confirmed by Officer Thomas’s subsequent Endorsements dated December 16, 2015[^1] and January 4, 2016, in which he notes “No dockets received.” He makes no similar notation regarding Mr. Chandra’s objections being overdue because the objections were not due until one month after the dockets were produced.
[13] While there appears to have been legitimate family-related reasons for Mr. Zaldin’s delay in producing his detailed dockets, Mr. Chandra cannot in these circumstances be faulted for having failed to comply with Officer Thomas’s original deadline of December 14, 2015.
[14] Mr. Chandra ought to have particularized his objections within one month of receiving Mr. Zaldin’s detailed dockets on February 1, 2016. He did not do so. He provided no particulars of his objections until May 13, 2016, after a motion was brought by Mr. Zaldin to seek an Order compelling Mr. Chandra to attend a full day of examination for discovery.
[15] On May 13, 2016, the particulars of Mr. Chandra’s objections were provided by Amandeep Sidhu, counsel representing Mr. Chandra, who wrote a letter setting out a list of complaints regarding the disputed accounts. The list is prefaced with a paragraph reserving Mr. Chandra’s right to put forth additional complaints as the assessment proceeds.
[16] The May 13, 2016 particulars were not only delivered late (3.5 months after the dockets were produced), they were also unsatisfactory to Mr. Zaldin, who maintained that he still did not know the nature of the case that he was being asked to meet in the assessment. Although the onus is on him to demonstrate that his accounts are reasonable in accordance with the factors set out in the jurisprudence, given the amount of costs at issue and the number of accounts in dispute, fairness requires that he be given adequate notice of the nature of Mr. Chandra’s complaints in advance of the assessment hearing.
[17] Assessment hearings are summary proceedings. They are intended to be expedient and procedurally simple. There are no pleadings, no examinations for discovery, and no other formal pre-trial proceedings mandated by the Rules. Assessment Officers typically make directions with respect to any pre-trial production or disclosure that needs to be made in order to ensure fairness and efficiency in the proceeding. That was done by Officer Thomas in this case.
[18] When Mr. Sidhu delivered Mr. Chandra’s list of complaints to Mr. Zaldin on May 13, 2016, Mr. Zaldin was of the view that it was too little too late. He felt that he had not been provided sufficient particulars to enable him to prepare adequately for the hearing, so he proceeded with his motion to compel Mr. Chandra to attend a day of examination for discovery. That motion was heard by Justice Donohue on May 19, 2016.
Justice Donohue’s Interlocutory Order
[19] Justice Donohue denied Mr. Zaldin’s request for discovery, but granted some relief to ensure “a degree of fairness” to Mr. Zaldin and “allow both parties to consider their positions in advance of the hearing.” In particular, she ordered:
(i) … that the Client [Mr. Chandra] provide further particulars to flesh out his list of complaints with respect to the Solicitor’s [Mr. Zaldin’s] seventeen accounts;
(ii) … that the Client provide a “will-say” statement considering each of the nine considerations set out in Cohen v. Kealey, (1985) 26 C.P.C. (2d) 211;
(iii) … that the Client serve and file an Affidavit of Documents and a tabbed Document Brief with copies of all documents contained in his Affidavit of Documents.
[20] Justice Donohue further ordered Mr. Chandra to satisfy these orders within 90 days (i.e., by August 17, 2016).
[21] Mr. Zaldin argues that there has been deliberate non-compliance with all three elements of Justice Donohue’s Interlocutory Order. Mr. Chandra argues that he has complied with the Order and that any deficiencies in compliance are unintentional.
[22] I find, based on the record, that there has been substantial (but not full) compliance by Mr. Chandra with Justice Donohue’s Order.
[23] On August 22, 2016 (five days beyond the deadline imposed by Justice Donohue[^2]), Mr. Sidhu emailed Mr. Zaldin a letter dated August 22, 2016, enclosing a sworn Affidavit of Documents, a Will-Say Statement and a more detailed list of complaints regarding Mr. Zaldin’s dockets.
[24] Mr. Zaldin argues that the documents produced represent a mere “appearance of compliance” but are so deficient as to constitute non-compliance. For the reasons that follow, I disagree.
[25] The Will-Say Statement addresses each of the 9 factors considered by the Court of Appeal in Cohen v. Kealey & Blaney, supra, per Justice Donohue’s Order. It provides a brief summary of the thrust of the evidence that Mr. Chandra will give relating to each factor.
[26] I find that the summaries contained in the Will-Say Statement are adequate to put Mr. Zaldin on notice of the nature of the complaints being raised by Mr. Chandra, such that he can prepare adequately for the assessment hearing. A Will-Say Statement is not required to contain minutia of a witness’s anticipated testimony. Its primary purposes are to promote efficiency in hearings and to ensure fairness to the opposing party by giving notice of the areas in which evidence will be called.
[27] In this case, the primary purpose of ordering Mr. Chandra to provided a Will-Say Statement was to enable Mr. Zaldin to determine whether all or only some, and if only some, then which of the nine factors in Cohen v. Kealey & Blaney, supra, are at issue in Mr. Chandra’s complaints. The Will-Say Statement was also intended to give Mr. Zaldin notice of the nature of the allegations that will be raised in Mr. Chandra’s evidence, as they relate to the nine factors. I find that the Will-Say Statement meets these objectives. For example, with respect to the “degree of skill and competence” exercised by Mr. Zaldin (one of the nine relevant factors for the Assessment Officer’s consideration), the Will-Say Statement indicates that Mr. Chandra will give evidence about Mr. Zaldin’s failure to locate a $200,000 mutual fund held by his ex-wife. This provides Mr. Zaldin with notice that “skill and competence” are at issue, as well as sufficient information about the area of Mr. Chandra’s anticipated evidence (i.e., overlooking his ex-wife’s $200,000 mutual fund) to ensure fairness to Mr. Zaldin.
[28] Similarly, I find that the detailed list of complaints delivered on August 22, 2016 provides Mr. Zaldin with adequate particulars of the nature of the objections being made to his dockets. The August 22, 2016 list does not contain the reservation of rights clause that was included in the original list of complaints dated May 13, 2016. Mr. Chandra confirmed at the motion hearing that the August 22, 2016 list is exhaustive. He confirmed that he would not claim to be prejudiced by an Order that he not be permitted to raise any additional complaints at the assessment hearing.
[29] A more detailed Will-Say Statement and/or more detailed particulars of Mr. Chandra’s complaints are not, in my view, necessary to ensure fairness to Mr. Zaldin. While there may be cases in appropriate circumstances when an examination for discovery should be ordered in an assessment proceeding, I am of the view that it is neither necessary nor appropriate to make such an order in this case. It would undermine the summary nature of the assessment process, which ought not to be converted into a traditional civil proceeding with detailed pleadings and pre-trial discoveries. That was clearly not the intention of Justice Donohue’s Interlocutory Order. Her order was made to ensure a “degree of fairness” to Mr. Zaldin, which has been afforded by the subsequent delivery of a Will Say Statement and particulars of complaints on August 22, 2016.
[30] I conclude that Mr. Chandra has satisfied the first two elements of Justice Donohue’s Interlocutory Order, although his compliance occurred a few days late.
[31] Mr. Chandra has not, however, fully complied with the third element of Justice Donohue’s Order, namely to serve and file an Affidavit of Documents and a tabbed Document Brief with copies of all documents contained in his Affidavit. Two Affidavits of Documents were served by Mr. Chandra, one dated August 22, 2016 and another dated October 13, 2016. Both are deficient in detail and no tabbed book of documents has been delivered by Mr. Chandra.
[32] The email from Mr. Sidhu to Mr. Zaldin dated August 22, 2016 contained two attachments. At the motion hearing, Mr. Toor (agent appearing for Mr. Chandra) submitted that one of the attachments was a thick volume of the documents on which Mr. Chandra intends to rely at the hearing. There is no evidence in the record to support that submission. I cannot ascertain, based on the record, what the attachments to the email contained, apart from an audio recording of a meeting upon which Mr. Chandra intends to rely. There was a second PDF attachment to the email, but I am unable to determine, based on the evidence, what that document file contained. It may have simply been the cover letter dated August 22, 2016.
[33] Based on the evidence in the record, it appears that Mr. Chandra did not fully comply with Justice Donohue’s Order regarding production of documents. However, I am not persuaded that Mr. Zaldin is in any way prejudiced by this non-compliance. I find that Mr. Zaldin has effectively had notice of the specific documents on which Mr. Chandra intends to rely because the exhaustive list of complaints dated August 22, 2016 contains a chart with a column that references specific documents using a lettering/numbering system created by Mr. Zaldin. The parties confirmed at the motion hearing that they have a mutual understanding of how that letting/numbering system works, so Mr. Sidhu’s references to certain letters/numbers in the August 22, 2016 list of complaints is understood by Mr. Zaldin to direct his attention to specific documents already in Mr. Zaldin’s possession. In this way, Mr. Zaldin has had notice of the documents upon which Mr. Chandra intends to rely for over a year.
[34] Justice Donohue’s Interlocutory Order was intended not only to ensure fairness to Mr. Zaldin, but also to promote efficiency in the assessment process. A tabbed book of documents will no doubt be of assistance to the Assessment Officer who conducts the hearing. Mr. Chandra ought to have complied with the Order to produce such a book of documents.
[35] Based on my finding of Mr. Chandra’s non-compliance with this element of Justice Donohue’s Interlocutory Order, I have the discretion, pursuant to Rule 60.12(c), to “make such order as is just”. In my view, the relief sought by Mr. Zaldin would not be just in the circumstances. There is no evidence to support Mr. Zaldin’s submission that Mr. Chandra has wilfully disobeyed all elements of Justice Donohue’s Order. On the contrary, the record shows that he has made genuine efforts to comply and has substantially achieved compliance. The relief sought by Mr. Zaldin would therefore be disproportionate to the limited nature of the breach.
[36] Rather than ordering the relief requested by Mr. Zaldin, I have decided to order directions relating to the assessment hearing.
Directions
[37] At the motion hearing, I canvassed the parties’ positions with respect to potential directions to the Assessment Officer regarding (1) limitations on the scope of the issues to be adjudicated and (2) constraints on the documents that can be used by Mr. Chandra as evidence at the assessment hearing. Mr. Chandra supported my proposed directions based on a desire to move the proceeding forward so that a hearing can be scheduled without further delay. He confirmed his intention to restrict the scope of his objections to those articulated in Mr. Sidhu’s August 22, 2016 list of complaints. He also confirmed that no prejudice would result from him being restricted to rely only on the audio recording listed in his Affidavit of Documents and on the documents referenced (by letters and numbers) in the August 22, 2016 revised list of complaints.
[38] Mr. Zaldin supported my proposed directions, but only in the event that his requested relief was denied. He submitted that limiting directions would be necessary to ensure that he is not unfairly confronted at the hearing with new (previously unarticulated) complaints about his accounts or with unanticipated (previously undisclosed) evidence -- what his counsel referred to as “trial by ambush”.
[39] Pursuant to Rules 55 and 60.12, in the interest of avoiding further delay and of ensuring a fair process, I order the following Directions with respect to the assessment hearing:
(a) Mr. Chandra shall serve and file, within 30 days of this Order, a bound (hard copy), tabbed and indexed Book of Documents containing all of the documents upon which he intends to rely at the assessment hearing. The Book of Documents shall only contain documents referenced in the August 22, 2016 list of complaints.
(b) Mr. Chandra shall not be permitted to rely at the hearing on any documents other than those contained in the Book of Documents, subject to his right to rely on any additional documents submitted by Mr. Zaldin at the hearing. Mr. Chandra may also rely on the audio recording previously disclosed to Mr. Zaldin on August 22, 2016. However, the admissibility of the audio recording and of any documents submitted by either party shall be determined by the Assessment Officer who conducts the assessment hearing.
(c) Mr. Chandra shall not be permitted to raise additional complaints about Mr. Zaldin’s accounts other than those referenced in his Will-Say Statement and in the particulars that Mr. Sidhu provided by letter dated August 22, 2016.
[40] Mr. Zaldin also requested a direction that Mr. Chandra’s evidence at the assessment hearing be restricted to the content of his Will-Say Statement. Such a direction would not be just in the circumstances, since the Will-Say Statement was not prepared with an understanding that it would constrain Mr. Chandra’s testimony at the hearing. While I could order him to produce another more detailed Will-Say Statement with that understanding, that would be tantamount to directing him to provide a written statement of his evidence-in-chief, and I do not believe that would be appropriate in the context of a summary proceeding. It would add unnecessary complexity to the proceeding and contribute to further delay and expense.
Costs
[41] Both parties seek their costs in the event that they are successful on the motion.
[42] Mr. Schipper submitted that any order constraining Mr. Chandra’s submissions or his ability to lead evidence at the assessment hearing would constitute success on Mr. Zaldin’s part for costs purposes, even if Mr. Zaldin’s requested relief is denied. That is not a tenable position on this motion, since the limiting directions that I have ordered were not requested by Mr. Zaldin in his motion materials or oral submissions. They were proposed by me at the hearing and were readily accepted by Mr. Chandra. Moreover, I have rejected Mr. Zaldin’s submissions that Mr. Chandra flaunted a court Order. In these circumstances, Mr. Zaldin cannot be deemed to have succeeded on the motion simply because of my limiting directions.
[43] In my view, Mr. Chandra has largely prevailed on the motion, despite the fact that I found he breached one element of Justice Donohue’s Interlocutory Order. I conclude that Mr. Chandra is entitled to an order for costs.
[44] If the parties are unable to agree on the amount of costs to be paid by Mr. Zaldin, they may make written submissions with respect to scale and quantum of costs. Mr. Chandra shall serve and file his submissions (not to exceed 2 pages, excluding a Bill of Costs and any settlement offers) by December 11, 2017. Mr. Zaldin shall deliver his responding submissions (not to exceed 2 pages, excluding any settlement offers) by December 22, 2017. There will be no reply submissions unless requested by me.
Petersen J.
Date: November 30, 2017
CITATION: Zaldin v. Chandra, 2017 ONSC 7143
COURT FILE NO.: CV-13-2002-00
DATE: 20171130
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Ronald Victor Zaldin, Solicitor (Moving Party)
AND:
Satish Chandra, Client (Responding Party on the Motion)
BEFORE: PETERSEN J.
COUNSEL: R. Schipper, counsel for the Solicitor/Moving Party
A. Toor, agent for the Client/Responding Party
ENDORSEMENT
Petersen J.
Released: November 30, 2017
[^1]: The Endorsement is actually dated December 16, 2016, but the year on the Endorsement is an obvious error and should read 2015. [^2]: Mr. Chandra had requested Mr. Zaldin’s consent to an extension of time, which was not granted by Mr. Zaldin.