Devon Gatling-Coquelet v. John Allan
COURT FILE NO.: 16-70593
DATE: 2018/05/08
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Devon Gatling-Coquelet Applicant
– and –
John Allan Respondent
COUNSEL:
William N. Fuhgeh, Counsel for the Applicant
Joseph W.L. Griffiths, Counsel for the Respondent
HEARD: 2018/04/06
COSTS ENDORSEMENT
JUSTICE SALLY GOMERY
[1] This is a motion for costs by John Allan, a lawyer, against his former client, Devon Gatling-Coquelet. In dealing with the motion, I must decide if I have jurisdiction to make a cost order and, if so, whether I should exercise it. If I decide that I should, I must then decide whether Mr. Allan is entitled to costs and fix the amount.
Background
[2] In January 2016, Ms. Gatling-Coquelet hired Mr. Allan to represent her in a personal injury claim. She fired him in September 2016 after he had negotiated a favourable settlement for her. Mr. Allan subsequently sent Ms. Gatling-Coquelet a bill for $8000 in fees and disbursements. She refused to pay the invoice and served a notice of application for an assessment.
[3] The assessment hearing was originally set for January 31, 2017, but was adjourned at Ms. Gatling-Coquelet’s request. The hearing was rescheduled to May 5, 2017. At 5:24 p.m. on May 4, Mr. Allan’s lawyer, William Fugheh, received an email advising that Ms. Gatling-Coquelet had withdrawn her application. When Mr. Allan attended at the courthouse the next day with Mr. Fuhgeh, they learned that the assessment officer had already endorsed Ms. Gatling-Coquelet’s discontinuance of the assessment process. The assessment officer made no order with respect to costs.
[4] In this motion, Mr. Allan is seeking legal fees and disbursements he paid to Mr. Fuhgeh to respond to Ms. Gatling-Coquelet’s assessment application. The motion was argued on April 6, 2018. I reserved my decision in order to allow counsel to make additional written submissions on my jurisdiction to make the order sought by Mr. Allan.
Does this court have jurisdiction to make a costs order and, if so, should I exercise it?
[5] By virtue of s. 131(1) of the Courts of Justice Act, I have broad jurisdiction to order costs. Ms. Gatling-Coquelet concedes that I have jurisdiction to make a cost order in this case but says that I should decline to do so for various reasons.
[6] Citing Nelligan O’Brien Payne LLP v. Fontaine, 2006 CanLII 20091 (ONSC), she argues first that an assessment process is a reference as opposed to an action or application. As a result, the rules and principles that apply to these types of proceedings do not apply here.
[7] I disagree. An assessment process is not a special proceeding different from any other. When either a client or a solicitor seeks an assessment, they apply for an order. Although the order results in a reference to an assessment process, the mechanism to obtain it is an application. The person seeking the assessment is referred to as the applicant and the responding party as the respondent. The standard order states that it is issued “upon application”.
[8] Under Rule 38.08(3), where an application is abandoned, a respondent is entitled to the costs of the application, unless the court orders otherwise. There is no reason why this rule does not apply to an assessment procedure.
[9] Ms. Gatling-Coquelet argues that, instead of making this motion Mr. Allan should have appealed the assessment officer’s May 5 endorsement. In Cornacchia v. Cornacchia, 2006 CanLII 39313, Justice Eberhard held that the Superior Court has jurisdiction to consider cost entitlement even though this issue could have been decided by an assessment officer. I agree with her observation that, in considering the rules, I must be guided by the overarching purpose of securing the “just, most expeditious and least expensive determination of every civil proceedings on its merits” (Rule 1.04(1)). A procedural irregularity can be waived in the interests of rendering justice on the merits of a proceeding.
[10] In this case, both parties have spent substantial time, money and effort to resolve their fee dispute. I am reluctant to require them to engage in yet another proceeding if I can resolve one of the outstanding issues through a decision on this motion now before me.
[11] From a procedural perspective, this motion is akin to a motion to vary an order under Rule 37.14. The order at issue is the assessment officer’s May 5, 2017 endorsement. Assessment officers are appointed pursuant to s. 90(1) of the Courts of Justice Act. Every master is also an assessment officer. Further to Rule 37.14(5), where the order at issue was made by a master, the motion to vary may be made to a judge. Although Rule 37.14 does not specifically address orders by assessment officers, I see no reason why the process to vary their orders should be any different than that applicable to orders by a master.
[12] Under Rule 37.14(1), a party may move to vary an order that was made on insufficient notice.
[13] In this case, Mr. Allan did not have meaningful notice of the withdrawal of Ms. Gatling-Coquelet’s application. He was presented with a fait accompli. Based on the evidence before me, the letter that her counsel sent to the court on May 4 was not copied to Mr. Fuhgeh or Mr. Allan. Ms. Gatling-Coquelet’s lawyer waited until after 5:00 p.m. on the day before the hearing to let Mr. Allan know that the matter would not proceed. By the time Mr. Fuhgeh and Mr. Allan arrived in court the next day, the assessment officer had already signed her endorsement. Mr. Allan therefore had no opportunity to argue the cost issue before her.
[14] Finally, Ms. Gatling-Coquelet proposes that I could leave the question of these costs to the assessment officer adjudicating a second assessment application begun in May 2017, this time by Mr. Allan. In September 2017, however, the assessment officer adjourned the process, referring the question of Mr. Allan’s retainer to the Superior Court. Mr. Allan has not yet taken any steps to follow up, having not yet decided if it is worth beginning another court process to recover his fees. We therefore do not know whether the assessment officer will ever have the opportunity to decide on fees paid to Mr. Fuhgeh for Ms. Gatling-Coquelet’s discontinued assessment. I also have some doubt about whether the officer would be comfortable making a decision on these costs given that they were incurred in the context of another assessment process which has now been withdrawn.
[15] Taking all of these considerations into account, I find that it is appropriate, in the circumstances, for me to exercise jurisdiction with respect to Mr. Allan’s costs on Ms. Gatling-Coquelet’s application.
What costs is Mr. Allan entitled to?
[16] As always in fixing costs, I must award a reasonable amount, taking into account the nature of the proceedings, their result, and other factors set out at Rule 57.
[17] Successful parties on an assessment are not presumptively entitled to their costs. In Re Solicitor, 1969 CanLII 439 (ON SC), [1969] 2 O.R. 823, the court held that a solicitor may be entitled to costs of an assessment only if the account in dispute is “patently reasonable”.
[18] There has been no assessment of Mr. Allan’s bill for services provided to Ms. Gatling-Coquelet in her personal injury claim. In my view, however, where a client has abandoned an assessment process, I may reasonably infer that the assessment officer would have ruled in the solicitor’s favour.
[19] As a result, I conclude that Mr. Allan should recover some costs. I do however have some serious concerns about the costs he seeks.
[20] First of all, Mr. Allan is asking for the actual fees and disbursements he paid to Mr. Fuhgeh. Mr. Allan is not entitled to be fully indemnified for his actual costs of $4,533.70. The fees must be discounted to reflect partial indemnity. Partial indemnity costs would be about $2,700.
[21] But the costs sought must be further discounted, because they are disproportionately high in an assessment process over an $8,000 legal bill.
[22] Mr. Fuhgeh charged Mr. Allan $1800 for his review of the file and preparation and delivery of an assessment brief. As already mentioned, Mr. Allan began his own assessment process after Ms. Gatling-Coquelet withdrew her notice of assessment. He should be able to recycle the assessment brief prepared by Mr. Fuhgeh for the purpose of this second assessment process. As a result, the costs related to the preparation of the brief are not costs thrown away. Mr. Allan can still recover them in the context of the ongoing assessment process (assuming he proceeds with it).
[23] Mr. Fuhgeh charged an additional $1800 in fees for preparation for and attendance at the January 31, 2017 hearing. Ms. Gatling-Coquelet told Mr. Allan prior to the hearing that she would ask for an adjournment because her son had a medical emergency in Toronto. It is not clear when she first spoke to him about this, but by January 30 at 5:00 a.m. at the latest he knew that she was seeking a postponement.
[24] Under Rule 7.2-1.1 of the Law Society of Ontario’s Rules of Professional Conduct, “A lawyer shall agree to reasonable requests concerning trial dates, adjournments, the waiver of procedural formalities, and similar matters that do not prejudice the rights of the client”. There is no evidence that the adjournment requested by Ms. Gatling-Coquelet prejudiced Mr. Allan’s rights. Mr. Allan apparently did not believe that his former client was telling the truth about why she wanted a postponement. But whether he believed her or not, both he and Mr. Fuhgeh should have realized that the assessment hearing would not proceed on January 31, and avoided preparation costs that did not have to be incurred.
[25] Fees charged by Mr. Fuhgeh for four hours of preparation time on January 30 and another two hours for court attendance on January 31 are accordingly unreasonable. Not all of these fees should be discounted because Mr. Fuhgeh would have had to prepare at some point prior to the May 5 hearing. But some of the fees at the end of January could and should have been avoided.
[26] The remainder of Mr. Fugheh’s fees, about $400, are for communication with Ms. Gatling-Coquelet’s lawyer and a further short court attendance. These appear reasonable although, like all other fees, they must be discounted to reflect recovery on a partial indemnity basis.
[27] Mr. Allan argues that he should get a higher cost award because the entire assessment process initiated by Ms. Gatling-Coquelet was an abuse of process. I reject this argument. A client always has the right to seek an assessment of their lawyer’s bill. It does not, on its own, indicate bad faith.
[28] Taking into account my observations about the costs at issue here, I am awarding Mr. Allan $1,000 inclusive of fees, disbursements and HST.
Justice Sally Gomery
Released: 2018/05/08
COURT FILE NO.: 16-70593
DATE: 2018/05/08
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Devon Gatling-Coquelet Applicant
– and –
John Allan Respondent
COSTS ENDORSEMENT
Justice Sally Gomery
Released: 2018/05/08