Moore v. John A. Annen Barrister Professional Corporation, 2017 ONSC 7720

CITATION: Moore v. John A. Annen Barrister Professional Corporation, 2017 ONSC 7720

COURT FILE NO.: 16-68992

DATE: 2017/12/22

COURT OF ONTARIO

SUPERIOR COURT OF JUSTICE

In the matter of the Solicitor’s Act, RSO 1990, c. S.15 as amended

RE: NORMA MOORE, MICHAEL BATTISTON, TERRY KRIEGER, LEANNE KRIEGER, WILLIAM MACMEECHAN, BARBARA MACMEECHAN, RACHEL BURTON, SHAWN BURTON, SEAN MOORE, CHERILYN OUTHWAITE, MARYBETH PIDGEON, MARK POPIEL, TREVOR TURNER and GEORGE MOORE, Applicants (Responding Party)

AND

JOHN A. ANNEN BARRISTER PROFESSIONAL CORPORATION, Respondent (Moving Party)

BEFORE: Mr. Justice Calum MacLeod

COUNSEL: Alessia Petricone-Westwood, for the Applicants (Responding Parties)

John A. Annen, for the Respondent (Moving Party)

HEARD: December 12, 2017

ENDORSEMENT

1This is a motion to oppose confirmation of a certificate of the assessment officer. In practical terms it is an appeal of the decision requiring the Respondent to refund $13,208.55 to his former clients.

Background – the nature of Solicitor Client Assessments

2Before dealing with the merits, let me add my voice to those calling upon the legislature to review and update the Solicitor’s Act. In the interim I suggest the Rules Committee enact a clear procedure for assessment of lawyers’ accounts and approval of fee agreements.

3As recently pointed out by the Divisional Court in Gilberts LLP v. David Dixon Inc.¹, the problems with the Act were pointed out in a 1973 report of the Ontario Law Reform Commission. They have not improved. The Act uses archaic language extracted from 19^th Century English legislation which functioned under a very different set of circumstances than now exist in Ontario. In the words of Justice Nordheimer, the Act fails to provide lawyers or clients with a clear route to the determination of a client’s liability for payment of legal accounts.²

4If the language of the Act is unclear and obscure, so too is the procedure in relation to assessment. While an assessment of a lawyer’s account (solicitor client assessments³ as opposed to party and party assessments⁴) is in fact a reference governed by Rules 54 and 55 of the Rules of Civil Procedure, this is not immediately apparent from either the Act or the Rules. It would take a very astute reader with a finely tuned understanding of the term “reference” and “referred to” to surmise this fact from the wording of sections 4 – 6 of the Act and one would have to be aware that Rule 54.01 states that the reference rules apply to references under the rules or under “any statute” to turn to Rules 54 and 55 for assistance.

5Even the forms used by the court to refer matters to assessment are matters of practice and are not prescribed forms. Finally, at least in Ottawa, there is no Assessment Officer as such. The assessment takes place before a “Regional Hearings Officer”. The hearings officer is a “person or class of persons” to whom the Deputy Attorney General has assigned the duties of an assessment officer pursuant to s. 73 (2) and (2.1) of the Courts of Justice Act.⁵ In that capacity she is empowered to conduct assessments. Madam Bender whose decision is under appeal is currently the only person filling this role in the entire East Region.

6This is not a criticism of the assessment officer or the scheme for delegation of authority. It simply adds to the confusion. The fact that assessments are presided over by a public servant who is assigned the duties of an assessment officer rather than a person designated by order-in-council may mask the fact that in exercising her functions she is presiding over a court proceeding in a judicial capacity. When exercising her delegated function of reviewing lawyers’ accounts, the assessment officer is carrying out an inherent and important function of a superior court.

7The role of the assessment officer has ancient antecedents and the power to order assessments of lawyers’ accounts is part of the inherent jurisdiction of courts of equity to supervise the fees charged by solicitors (who are officers of the court even when they are not engaged in contentious proceedings).⁶ In England, the authority for what was then referred to as “taxation” was transferred from the ancient office of the “six clerks” and conferred on “taxing masters” in 1842. This model continued as part of the mechanism of the Supreme Court of Ontario when the courts of law and equity were amalgamated in the late 19^th century. Taxing officers remained a feature of the superior courts in Ontario until the 1980s when the term “taxation” was replaced with “assessment” and “taxing officers” became “assessment officers”.⁷

8As a consequence of this history, much of the procedure before the assessment officer is regulated by long standing practice and in jurisprudence. It remains largely uncodified and it is difficult to find except in ad hoc procedural guides, papers presented at legal conferences and in arcane textbooks on the law of costs.⁸ In Ottawa, there is a useful Question & Answer sheet prepared by the local assessment office available on the County of Carleton Law Association (“CCLA”) web-site under the “civil litigation practice portal”⁹ There is a paper relating to assessments posted on the Ontario Bar Association Web Site.¹⁰

9If the Solicitors Act is to fulfil its function of providing a summary and convenient process for clients to seek review of lawyers’ accounts and for lawyers to collect fees that have been approved by the court, it is scandalous that information about the process is not readily and generally available. There is no procedural guide for the public or the bar readily available on the Attorney General’s web site, the Law Society web site or the Superior Court of Justice web site. I have no idea how members of the public are supposed to know how assessments work except by inquiring with the local court office or being advised by the assessment officer at a pre-hearing conference.

10Lawyers of course are presumed to know these things but unless the lawyer has previously been through an assessment that may not be the case. No guidance can be found in the Rules of Civil Procedure. Rule 58 deals with “assessment of costs” and not with proceedings under the Solicitors Act. Assessment of party and party costs is now the exception as most costs are fixed but when they are referred for assessment, Rule 58 applies. Assessment of costs between parties to litigation operates under a different statutory regime than assessment of lawyers’ accounts to their own clients.

11The following features of solicitor client assessments can be derived from the case law and experience but will be difficult to surmise from simply reviewing the Act or the Reference Rules.

a. A lawyer’s account is not just a matter of contract. As a feature of the bar’s monopoly on the provision of legal services, the provision of those services and the amount charged for those services involves a public interest component.¹¹

b. The registrar’s authority to issue an order for assessment under the Solicitor’s Act is limited to cases in which the retainer is not in dispute, there are no special circumstances and the requisition complies with the time limits under the Act.¹²

c. The Act is not a complete code. The court retains an inherent jurisdiction to order a lawyer’s bill to be assessed even if an order is not available as of right under the Act.¹³

d. A lawyer may sue for his or her account in a civil action in the appropriate court but once an assessment is underway, the action must be stayed.¹⁴

e. Regardless of whether the client or the lawyer obtains the order for assessment, it is the account of the lawyer which stands assessed and the onus is on the lawyer to prove the value of the work.¹⁵

f. Generally the assessment begins by a first appearance before the assessment officer scheduled when the lawyer or the client obtains and files a requisition (or an order). At that hearing directions will be given. Preliminary matters will be discussed. This will typically include matters such as the proper parties, whether the retainer is disputed, prospects for settlement, production requests, the issues, the anticipated evidence, the form of the evidence, the time required and the procedure to be followed. A date will then be set for the hearing or for another preliminary appointment if the matter is complex or further directions appear necessary. In some cases parties may be referred to mediation or another ADR process if it is available.

g. The assessment officer has all the powers given to a referee by the Rules. This includes adopting “the simplest, least expensive and most expeditious” procedure and may include dispensing with usual procedures or adopting specific procedures appropriate to the nature of the dispute.¹⁶

h. While the assessment officer may modify the procedure, adopt efficiencies and dispense with formal proof where it is appropriate, the hearing is a trial and rules of evidence apply. The lawyer must give evidence in order to prove what work was done and the value of that work. The client is not obligated to give evidence or prove anything although the client is free to do so¹⁷. The client or the client’s representative may cross examine the lawyer or the lawyer’s witnesses and may obtain summonses. The assessment officer will make credibility findings as necessary.

i. The assessment officer must determine the value of the work on a quantum meruit basis.¹⁸ In assessing the value of the work, the assessment officer has “an attenuated, circumscribed and delicate jurisdiction” to consider matters such as negligence, fraud or breach of fiduciary duty.¹⁹ Even if there is a fee agreement, the assessment officer must value the work product to determine if the agreement is reasonable and should be enforced. It is likely that an agreement by a lawyer to cap his or her fee (which operates in favour of the client) will be enforced. It is less likely that a fee agreement (which operates in favour of the lawyer) which appears to provide for an exorbitant fee will be enforced.

j. There is confusing language in s. 16 (1) of the Act which appears to say that written fee agreements are unenforceable unless they have been pre-approved by an assessment officer. The proper interpretation of this section is that it only applies to unusual or extraordinary fee agreements.²⁰ Unusual or extraordinary is not defined. Contingency fee agreements are now dealt with separately.²¹ Fee agreements providing for an exorbitant fee will likely run afoul of s. 16 (1).

k. A fee agreement is a factor to be considered by the court and it may or may not be enforced depending on whether it is fair and reasonable to do so but the lawyer cannot by contract eliminate the client’s right of assessment.²²

l. Even if the parties agree to arbitrate the amount of the lawyer’s account, the substantive law will apply and the arbitrator must proceed on the same principles as the assessment officer.²³

m. The factors to be considered by the assessment officer include the time expended by the lawyer, the legal complexity of the matters to be dealt with, the degree of responsibility assumed by the lawyer, the monetary value of the matters in issue, the importance of the matters to the client, the degree of competence and skill demonstrated by the lawyer, the results achieved, the ability of the client to pay and the client’s expectations as to the amount of the fee.²⁴ The list is not exclusive.

n. The report of the assessment officer (termed a “certificate” under the Act) will automatically be confirmed and become a judgment of the court unless there is a “motion to oppose confirmation” brought within 15 days after the opposing party is served with the signed certificate.²⁵

o. A motion to oppose confirmation is treated as an appeal.²⁶ It is also possible to appeal from the decision confirming or refusing to confirm the report.²⁷ Further appeals may be possible (though not necessarily advisable).

p. Unless the officer is acting without jurisdiction, the test on an appeal from an assessment officer is as follows:

“The standard of review on an appeal from an assessment officer’s decision is well established. The order below is discretionary. The hearing is an appeal, not an opportunity for the reviewing court to rehear the assessment and come to its own conclusion as to what is reasonable, absent an error in law, misapprehension of the evidence, palpable and overriding error on a factual matter, or an assessment amount that is so unreasonable as to constitute an error in principle.”²⁸

12The above summarizes some of the most salient aspects of the assessment process. It does not purport to be exhaustive. As noted, I refer here primarily to assessments of lawyer’s bills and not to party and party costs to which some but not all of these features may apply.

13The purpose of this brief discussion is simply to clarify the context in which the assessment hearing took place. I turn now to the matter in dispute and to the decision in question.

The matter under appeal

14The lawyer had first had contact with the group of clients while he was an articling student working at a clinic. Following his call to the bar, he was retained by the group to represent them in a small claims action against Miller Paving Ltd. Their real objective was to prevent development of an asphalt plant.

15At the time of the retainer, Mr. Annen was a junior lawyer in the office of Stephen P. Kylie in Peterborough. There is no dispute that Mr. Annen agreed to prosecute the action for a block fee of $2,500.00 per client to be paid in advance except that for one client (Mr. and Mrs. MacMeechan) he agreed the block fee would be paid out of any award or settlement.

16The terms of the fee arrangement are not in dispute. Mr. Annen received $28,500.00 which he deposited in Mr. Kylie’s trust account. In September of 2014 he advised the clients he would be leaving the Kylie firm and establishing himself as a sole practitioner. He obtained permission to transfer funds from the Kylie trust account to his own. At the same time he sent a bill for work done on the file which totalled $6,401.45. That amount was deducted from the trust funds so that the amount transferred to the Annen trust account was $22,098.49.

17There was apparently an error in the trust statement but it is immaterial to the matter before me. There is no dispute that $28,500.00 was paid originally and $22,089.49 was transferred to the Annen trust account when he set up his own law firm. The MacMeechans were also to pay $2,500.00 at a later date and one client only paid $1,000.00 because his cheque for $1,500.00 bounced.

18In May of 2016 the clients terminated their retainer. The matter had not yet come to trial and they had lost confidence in Mr. Annen’s ability to obtain a result within a reasonable period of time. The written retainer agreement contained the following language: “If you terminate our services or we withdraw, you would only have to pay our fee and applicable disbursements up to the time we stopped acting for you.”

19On May 23, 2016 Mr. Annen sent a statement of account in the amount of $29,822.26 against which he applied the funds in trust and advised the clients they were indebted to him in the amount of $7,723.77. In short, since he had already billed $6,401.45 while with the Kylie firm, he purported to bill more for the unfinished work than he would have been entitled to bill under the block fee arrangement had he completed the work. The clients were not pleased.

20On June 17, 2016 the clients obtained an order for assessment pursuant to s. 3 (b) of the Act. This was within the one month window under the Act and the registrar therefore had the jurisdiction to make the order. The assessment was properly constituted.

21A first appearance before the assessment officer took place on July 19, 2016. The clients were not represented. At that time, the assessment officer appointed Norma Moore as the spokesperson for the group. She determined it would not be necessary to hear from each of 14 individual clients or to require they give sworn testimony.

22The hearing took place over three days, September 22^nd, 2016, October 20, 2016 and October 21, 2016. Mr. Annen gave evidence and called no other witnesses. Towards the end of the first day Ms. Moore gave evidence in chief. She had previously provided an affidavit.

23In between the first date and the second day of the hearing, before Ms. Moore had completed her examination in chief, she served a further affidavit. That affidavit dated September 28, 2016 purported to address issues raised by Mr. Annen in his evidence. When the hearing resumed on October 20, 2106 Mr. Annen objected to the admission of the affidavit and the assessment officer required Ms. Moore to give her evidence orally. Ms. Moore appeared to use the affidavit as a guide when she gave her evidence but in any event she gave the evidence contained in the affidavit as well as other evidence. She was then cross examined by Mr. Annen for the balance of the second day and continued with cross examination on October 21^st.

24During cross examination, the affidavit was made an exhibit and thus admitted into evidence. Mr. Annen did not give or call any reply evidence.

25On April 18, 2017 the assessment officer released brief reasons and a certificate in which she reported that the amount of the lawyer’s account was properly $15,151.45 rather than the $29,822.26 he had billed. She deducted the amount of $28,500.00 originally paid by the clients under the flat fee agreement and held that the lawyer should refund $13,308.55.

26The lawyer then brought this motion to oppose confirmation.

The issues

27Mr. Annen argues firstly that the assessment officer erred in ordering him to pay back $13,308.55 because he argues it was only the final account for $29,822.26 that was being assessed and not also the Kylie account for $6,401.51. Accordingly in his view it was an error to deduct the $28,500.00 originally paid by the clients and instead the assessment officer should have deducted only the $22,098.49 transferred to his trust account. Even if the reduction in his fees is justified, he argues, this error should result in a reduction in the amount he owes the clients to $6,947.04.

28The first question then is whether this is an error which should be corrected. As I understood the argument, if this adjustment is made, Mr. Annen would be content.

29His second argument, which he stated was in the alternative, is that the assessment officer committed a procedural error in admitting hearsay through Ms. Moore and in admitting her affidavit. He argues that this breached the rules of evidence and procedural fairness. If the court accepts this argument, he argues that a new assessment should be ordered before a different assessment officer. Given the amount in dispute, this is not his preferred route. I can well understand that given the amount in dispute but as this was argued, it is not a ground of appeal that can simply be ignored. If there was a failure of natural justice and reliance on inadmissible evidence the decision ought not to be confirmed.

Analysis

30I will therefore deal with the alternative argument first. There is no merit to it. The assessment officer has broad procedural discretion. There was hearsay in Ms. Moore’s testimony including reference to an unsworn statement from Mr. MacMeechan but given the decision to hear from a representative on behalf of all of the clients, and the fact that Ms. Moore is not legally trained, this was almost unavoidable. Mr. MacMeechan was in ill health as Mr. Annen knew. More importantly, though Mr. Annen repeatedly objected to the use of hearsay, he was assured by the assessment officer that she was alert to the issue and would give it only the appropriate weight.

31Mr. Annen did not ask to call any of the other clients as witnesses. He did not seek to cross examine anyone other than Ms. Moore. In any event, it is not hearsay just to refer to something someone else said or wrote. It is only inadmissible hearsay if the court relies upon the truth of the second hand statement. While the assessment officer referred to the complaints voiced by the clients as a group as described by Ms. Moore, it does not appear from her reasons that she gave the hearsay evidence any weight.

32As an example, at page 10 of her reasons, the assessment officer states that the “plaintiffs maintain that Mr. Annen told Mr. MacMeechan that Miller was prepared to cut him a substantial cheque”. She then quoted from Ms. Moore’s statement and concluded that “this behaviour upset every plaintiff.” In this paragraph she is describing the position of the plaintiffs as reflected by Ms. Moore. While this demonstrates that the clients were upset partly because of information relayed to them by Mr. MacMeechan, it does not appear that the statements allegedly made by Mr. MacMeechan were accepted as true by the court. It is true that the clients were upset. It does not appear that Mr. Annen disputed these background facts.

33As to the use of her own affidavit by Ms. Moore, there was no procedural unfairness. Ms. Moore had not finished her examination in chief when she served the affidavit. The lawyer had ample opportunity to cross examine her and could have challenged her evidence if it was inconsistent with the affidavit. He could have asked to re-open his own case and give further evidence. He was asked if he wanted to give reply evidence. The procedure was not inherently unfair. Affidavit evidence is now routinely used as part of the evidence in chief in Rule 76 trials and in other trials as well.

34Ultimately the decision of the assessment officer turned on the question at the top of page 10 of her reasons. She noted that “the account is based on time and hourly rate.” The clients on the other hand took the position that “what is owing is a portion of the flat rate for service performed to the date of termination.” At page 20 of her decision, the assessment officer listed items that the plaintiffs said were necessary to prepare the case for trial that had not been done at the time the retainer was terminated.

35The assessment officer accepted Ms. Moore’s evidence that “none of the fourteen plaintiffs have the same interpretation as Mr. Annen of the termination clause of the retainer”. She went on to say (at page 21 of her reasons) “they are adamant that the termination statement in the retainer does not say that if they terminate Mr. Annen’s services, that they have to pay based on hours multiplied by the hourly rate or forfeit the entire $2,500.00.” She observes that the letter accompanying the retainer agreement stated “our fee will not be based on the time spent by us on your behalf but instead will be based on $2,500.00 for each plaintiff in the actions with similar facts giving rise to the cause of action”. The letter went on to state “My hourly rate is $205.00, although as the above identified, you are not being charged that rate in the event you engage our firms legal services but will be charged a flat fee.”

36The reasons do not clearly set out precisely how the assessment officer arrived at a fee of $12,815.75 other than her statement she conducted an item by item review of the account and considered the evidence of the witnesses but it is implicit in the reasons that the assessment officer looked at the work that had been completed and the work left to do and compared it with the block fee that had originally been promised to the client. The solicitor did not appeal on the basis of adequacy of the reasons but in any event the assessment officer is not required to precisely detail her train of thought. Reasons must be sufficient to provide some insight into how the legal conclusion was reached and what facts were relied upon in reaching that conclusion. They must be adequate to do so when considered in the context of the issues at trial and the record as a whole. They need not be perfect.²⁹

37In Cohen v. Kealey v. Blaney referred to above, the lawyer had quoted a maximum fee. The Court of Appeal held that “the fee to which he is entitled for the services rendered to the date of termination of his retainer should bear an appropriate relationship to the overall fee to which he would have been entitled had he carried the litigation through to trial”. The assessment officer’s assessment of the value of the work performed by the lawyer is consistent with this principle.

38I do not accept the argument that the assessment officer denied the lawyer due process or that the assessment officer relied upon inadmissible hearsay. The assessment of the value of the work completed was supported by the evidence and does not disclose any error in principle. There is no basis for appellate intervention.

39The question of the mathematical error is more complicated.

40Technically the only account that was referred to assessment was the final account. As noted above, there had been an interim account rendered at the time when Mr. Annen started his own practice. That account had been paid and deducted from the funds in trust.

41An issue had been raised in the assessment pre-hearing as to whether or not Mr. Kylie needed to be a party to the assessment. The clients had stated he did not and had written Mr. Kylie to confirm that they had no grievance with him or his office. During the assessment hearing, at one point Mr. Annen reminded the assessment officer that the clients did not take issue with the first bill for $6,401.51.

42When the assessment officer issued her report, she found the bill under review to be $29,822.26 and assessed it at $15,191.45. She then found the clients to have paid $28,500.00 on account of the bill and ordered the return of $13,308.55 to the clients.

43Mr Annen argues that this is clearly an error. The amount he received into his trust account was the sum of $22,098.49 after payment of the original bill. It is simply incorrect to state that $28,500.00 was applied against his account of $29,822.26 because in fact $6,401.51 had been applied against the earlier account (which was not the subject of the assessment). He argues that in order to apply the entire amount received into the Kylie trust account, both bills would have had to be assessed. In that case it would have been necessary to reduce the combined bill of $36,223.77 to $15,191.25 to produce the refund he has been ordered to provide to his former clients.

44This is a logical argument. It is also consistent with the substantial jurisprudence relating to the question of final and interim accounts. This question was discussed at length by the Court of Appeal in Enterprise Rent-A-Car Co. v. Shapiro, Cohen, Andrews, Finlayson.³⁰ In that decision the court recognized a long line of cases holding that when a lawyer rendered services over a long period of time in relation to the same matter, all of the bills must be regarded as interim and the time for the client to seek assessment in relation to the total bill would run from the date the final account was rendered. There is little doubt that the clients could have asked to have both accounts assessed despite the fact the interim account was rendered by a different law firm. It was the same work, the same lawyer, the same retainer and the same block fee.

45Of course from the point of view of the clients, they did not care about the interim account. Their view of the matter was simple. They had been promised certain work for a block fee. Only a portion of the work had been done. They should not have to pay the entire block fee for only part of the work. In that sense the interim account was simply a matter of internal book keeping between the Kylie firm and the Annen firm. Mr. Annen took the file with him under the terms of the original retainer.

46It is apparent from the transcript that throughout the hearing the issue for the clients was the value of the work product they received from Mr. Annen compared to the block fee. They had no issue with Mr. Kylie because their agreement was with Mr. Annen and he had been their lawyer throughout. As I indicated above, it seems clear from her reasons that this is essentially the approach adopted by the assessment officer. She valued the work actually done with an eye to the amount that had been quoted for completing the work. This is an approach supported by the Cohen decision and is sound in principle.

47I am sympathetic to the clients who were operating without the benefit of legal advice and should not be prejudiced by a change in the structure through which their lawyer decided to practice. I must nevertheless conclude that the certificate contains an error in principle. In order to assess the total value of all of the work done since the beginning of the file and to apply the entire amount of the retainer paid to the Kylie firm, it would have been necessary for the clients to also have the Kylie account referred for assessment. The assessment officer would then have had to consider the time docketed and the disbursements incurred at the Kylie firm which she was not in a position to do.

48Accordingly, while the assessment officer committed no reviewable error in her reduction of the account that was before her, it was an error to treat the original retainer as an amount applied against the account. The amount which was applied against the account was only $22,098.49 and the refund due to the clients is $6,947.04. Because the original account was not referred for assessment and the clients conceded they did not challenge that account, there was no jurisdiction to review it.

Conclusion

49In conclusion, I accept the reduced value of the lawyer’s account as calculated by the assessment officer but I cannot confirm the report as issued. I considered referring the interim account to the assessment officer and remitting the matter to her for further consideration but I think the clients and the lawyer have spent enough time and money on this issue. It would not serve the interests of justice to order another assessment with the possibility of a second motion to oppose confirmation.

50I will instead exercise my discretion by substituting a finding that the lawyer refund $6,947.04 to the clients. It is so ordered.

Costs

51Although the lawyer was successful in persuading the court of a technical error in the assessment and has been successful in reducing the amount owing to his former clients, I am not prepared to award him costs of the motion or of the assessment.³¹

52Unnecessary time was spent in arguing the procedural and evidentiary issues and in that sense success was divided. In addition, though I agree the original account was not before the assessment officer and that in turn limited her jurisdiction, under the circumstances, Mr. Annen had a duty to make it clear to the self-represented former clients what the consequence of their decision not to seek assessment of that account would be.

53There will be no costs of the motion or of the assessment. The funds are to be returned to the clients within 30 days.

Mr. Justice Calum MacLeod

Date: December 22, 2017

CITATION: Moore v. John A. Annen Barrister Professional Corporation, 2017 ONSC 7720

COURT FILE NO.: 16-68992

DATE: 2017/12/22

COURT OF ONTARIO

SUPERIOR COURT OF JUSTICE

In the matter of the Solicitor’s Act, RSO 1990, c. S.15 as amended

RE: NORMA MOORE, MICHAEL BATTISTON, TERRY KRIEGER, LEANNE KRIEGER, WILLIAM MACMEECHAN, BARBARA MACMEECHAN, RACHEL BURTON, SHAWN BURTON, SEAN MOORE, CHERILYN OUTHWAITE, MARYBETH PIDGEON, MARK POPIEL, TREVOR TURNER and GEORGE MOORE, Applicants (Responding Party)

AND

JOHN A. ANNEN BARRISTER PROFESSIONAL CORPORATION, Respondent (Moving Party)

Footnotes

1. 1Gilberts LLP v. David Dixon Inc., 2017 ONSC 1345 (Div.Ct.)
2. 2Gilberts LLP v. David Dixon Inc., supra @ para. 7
3. 3Pursuant to s. 3 of the Solicitor’s Act.
4. 4Governed by s. 90 (3) of the Courts of Justice Act.
5. 5As distinct from an Assessment Officer appointed by the lieutenant governor in council pursuant to s. 90 (1) of the CJA.
6. 6See Mark M Orkin, The Law of Costs, 2^nd edition, Thomson Reuters Canada @ para. 101 (I apologize to Mr. Orkin for use of the term “arcane” for his excellent work on the subject but from the point of view of the public, I am afraid it is apt.)
7. 7It is worth noting that in England, taxing masters are now referred to as “costs judges” and taxing officers are referred to as "costs officers”. Assessments are recognized as significant legal issues and the machinery for assessments is managed by the Senior Courts Cost Office. See Senior Courts Cost Office Guide, Royal Courts of Justice, London, 2013 and s. 70, Solicitors Act 1974, UK Statutes, 1974 c. 47 as amended.
8. 8See Orkin, supra. As examples see De-Mystifying Solicitor-Client Assessments: What They Never Taught You in Law School, Bender, L. and Upenieks, E., OBA, Young Lawyer’s Division East – Ontario, 2009. (I trust Mr. Orkin will not be offended by use of the term “arcane” for his comprehensive work on the subject)
9. 9http://www.ccla-abcc.ca/?page=CivilLitigation
10. 10http://www.oba.org/en/pdf/sec_news_fam_feb12_Solicitor_Client_Schipper.pdf
11. 11Plazavest Financial Corporation v. National Bank of Canada, 2000 CanLII 5704 (ON CA), 47 O.R. (3d) 641 (C.A.)
12. 12See ss. 3 & 4, Solicitor’s Act.
13. 13Price v. Sonsi, 2002 CanLII 41996 (ON CA), 60 OR (3d) 257; 215 DLR (4th) 376 (C.A.)
14. 14S. 6 (4), Solicitor’s Act.
15. 15Macdonald & Partners LLP v. Benevides, 2009 CanLII 55321 (SCJ)
16. 16Rule 55.01 (1)
17. 17Speciale Law Professional Corporation v. Shrader Canada Limited, 2017 ONSC 3613 (SCJ – Div Ct.)
18. 18Regan v. Petryshyn, [2007] O.J. No. 3942 (SCJ); aff’d 2008 ONCA 250 (C.A.)
19. 19Calin A. Lawrynowicz Barristers & Solictors v. Marino Estate, 2016 ONSC 2065 (SCJ)
20. 20Gilberts LLP v. David Dixon Inc, supra (SCJ- Div Ct.)
21. 21S. 28.1 of the Act and regulations thereunder.
22. 22Gilberts LLP, supra See also McIntyre v. Gowling, 2017 ONSC 1733 (SCJ)
23. 23Jean Estate v. Wires Jolley LLP, 2009 ONCA 339, 96 O.R. (3d) 171; 310 D.L.R. (4th) 95 (C.A.)
24. 24Cohen v. Kealey & Blaney, (1985) 26 CPC (2d) 211 (C.A.)
25. 25Rules 54.04 (2) and 54.09, Rules of Civil Procedure
26. 26Heyday Homes Ltd. v. Gunraj, (2005) 44 CLR (3d) 169 (Ont. SCJ), Samuel Eng & Associates v. Ho, 2009 ONCA 150 (C.A.), Laurin v. Zaldin, [2007] O.J. No. 989 (SCJ)
27. 27See Speciale Law Professional Corporation, supra. As the case shows there are other procedural devices available to delay or challenge the outcome of an assessment.
28. 28Rabbani v. Niagara (Regional Municipality), 2012 ONCA 280
29. 29F.H. v. MacDougall, 2008 SCC 53, [2008] 3 SCR 41, R. v. H.S.B., 2008 SCC 52, [2008] 3 S.C.R. 32
30. 30(1998) 1998 CanLII 1043 (ON CA), 157 DLR (4^th) 322 (Ont. C.A.)
31. 31The assessment officer did not award costs to the clients or to the lawyer.