Court File and Parties
Court File No.: CV-17-00577569-0000 Date: 2018-12-24 Superior Court of Justice - Ontario
Re: Magdy Hamdy, Applicant And: Leon Wickham and Law Offices of Peter Rickards, Respondents
Before: Mr. Justice Peter Bawden
Counsel: Mr. William Osborne and Ms. Daphne Hooper, for the Applicant Mr. Leon Wickham and Mr. Peter Rickards, for the Defendants
Heard: September 20, 2018
Endorsement
Introduction
1Mr. Hamdy wishes to assess the account of his former counsel, Leon Wickham. The matter came before Assessment Officer C.M. Chiba on October 31st, 2016 for a preliminary assessment. The Assessment Officer determined that Mr. Wickham had failed to deliver his legal accounts to Mr. Hamdy or the Assessment Office as he had been ordered to do on November 24, 2015. Mr. Wickham maintained that he had complied with the order by providing Mr. Hamdy with a Bill of Costs. Mr. Wickham also raised questions concerning the parties to the assessment and its scope. These matters were beyond the jurisdiction of the Assessment Officer. The Officer ordered Mr. Hamdy to seek directions from this court on the issues raised by Mr. Wickham and set the date of October 29th, 2018 to commence a 5-day assessment hearing.
2It is imperative that the parties be in a position to proceed with the assessment as scheduled. The dispute between Mr. Hamdy and Mr. Wickham over fees has already consumed an unjustifiable amount of court resources and it is well-nigh time that the matter be resolved on substantive grounds. Both parties should consider October 29th, 2018 to be a peremptory date to proceed with the assessment.
3The factum of Magdy Hamdy which was filed for this application sets out the chronology of events in meticulous detail and it is supported by a voluminous documentary record. Rather than attempting to re-create that lengthy chronology, I will simply commend that document to the Assessment Officer and cite only those facts which are necessary to resolve the issues which are before this court.
Orders Requested by the Applicant
(a) An Order for the Assessment Itself
4The applicant initially requests an assessment of the account of Mr. Wickham. Mr. Wickham does not oppose this application. On the contrary, he submitted to this court that he invites the assessment and is armed with five boxes of materials which he intends to rely on at the hearing. The order that Mr. Wickham's account or accounts to Mr. Hamdy be assessed is granted.
5The law office of Peter L.T. Rickards did not render any account to Mr. Hamdy and, for reasons that follow, Mr. Rickards will not be a party to the assessment order.
(b) Should the Law Firm of Peter Rickards be a party to the assessment?
6Mr. Wickham was disbarred by the Law Society of Upper Canada in 1994. He was provisionally reinstated to the Bar on January 15, 2008 but only allowed to practice in association with a senior counsel who would supervise his practice. Mr. Rickards agreed to assume that responsibility in March, 2009 for a five-year period. The terms of the associate relationship are set out in a document which Mr. Wickham signed on March 30th, 2009.
7Mr. Hamdy retained Mr. Wickham on January 17th, 2011 and his first retainer payments were deposited into the trust account of Mr. Rickards’ law firm. Subsequent payments were made directly to Mr. Wickham or to third parties who were associated to him, (most notably his wife, Angela), and did not pass through any trust account. It appears that Mr. Wickham did not advise Mr. Rickards of these subsequent payments.
8Mr. Hamdy's trial on family law matters began in May 2014 and ended in November, 2014. Although Mr. Rickards' supervisory responsibility for Mr. Wickham included the years leading up to that trial, it had expired by the time that the trial actually began. It did not cover the events subsequent to trial when Mr. Wickham obtained a rather dubious direction from Mr. Hamdy to pay the entirety of the court's award directly to him or Mr. Wickham’s failure to abide by the trial judge’s order to apprise Mr. Hamdy of his right to pursue costs against Mr. Wickham himself.
9No one contests the good faith of Mr. Rickards’ efforts to supervise Mr. Wickham’s practice. Mr. Rickards is in his 50th year of practice. It has been many years since he conducted any litigation and his practice is now confined to real estate law. He agreed to supervise Mr. Wickham out of kindness and his return has been nothing but misery. He was required to attend for cross-examination regarding this application, was then obliged to appear before this court to make representations on his own behalf and has been taxed for over a year with the responsibility of replying to inquiries made by Mr. Hamdy's counsel. Most remarkably, Mr. Rickards has had to commence his own action against Mr. Wickham to recover money loaned to Mr. Wickham and his portion of fees collected by Mr. Wickham.
10Mr. Hamdy was represented by counsel Jordan Donich when he appeared before the Assessment Officer on October 31st, 2016. No one had suggested prior to that day that Mr. Rickards should be a party to the assessment.
11According to the affidavit of Mr. Donich, it was Mr. Wickham who suggested to the Assessment Officer that Mr. Rickards should be a party to the assessment. Mr. Wickham has indicated in submissions to this court that he disputes Mr. Donich’s evidence but he has not advanced any evidence to the contrary. I accept the evidence of Mr. Donich. It is entirely in accord with the order of the Assessment Officer, the subsequent email correspondence between Ms. Hooper and Mr. Wickham and the general approach of Mr. Wickham to this assessment.
12Mr. Wickham did indicate in an email sent on August 9, 2017 that “in (his) view”, neither Mr. Rickards nor his law firm should be a party to any action brought by Mr. Hamdy under the Solicitors Act. Ms. Hooper responded by directly asking Mr. Wickham if he took the position that Mr. Rickards was a party to the assessment or not. Mr. Wickham responded on August 17th, 2017 as follows:
Regarding the two questions that you posed. Only you and Mr. Osborne, as lawyers for the client seeking the assessment, can answer those two questions. Competent counsel would know the answers given the material and information that are currently in your possession or within your control. I am not retained to advise you on such matters or to resolve any confusion that you might have regarding the identification of the proper parties to the assessment. [1]
13It was only in response to a direct inquiry from this court that Mr. Wickham finally stated his position that Mr. Rickards should not be named as a party to the assessment. Counsel for Mr. Hamdy takes the same position but was obliged to bring this application to comply with the order of the Assessment Officer. Much effort would have been saved if Mr. Wickham had disclosed his position prior to the hearing date.
14Mr. Rickards never established a solicitor-client relationship with Mr. Hamdy. His supervision of Mr. Wickham did not extend to the manner in which Mr. Wickham conducted litigation and he had no involvement in the rendering of accounts to Mr. Hamdy. Mr. Rickards has cooperated with all inquiries made by counsel for Mr. Hamdy and I have no doubt that he will continue to assist if any inquiries arise in the future.
15The only parties to the assessment will be Mr. Hamdy and Mr. Wickham.
(c) A declaration identifying the scope of the retainer that is the subject of the assessment
16Mr. Wickham represented Mr. Hamdy with respect to three arguably distinct matters: (1) the partition and sale of the matrimonial home; (2) the resolution of equalization and spousal support under the Family Law Act; and (3) the defence of criminal charges which arose from allegations made by Mr. Hamdy's former wife. Mr. Hamdy takes the position that the upcoming assessment should pertain to all services rendered by Mr. Wickham. Mr. Wickham submits that the assessment should only pertain to the family law proceedings but the basis for that submission is unclear. Mr. Wickham did not file a factum for this application.
17Mr. Wickham has filed a Responding Record which includes two retainer agreements, several signed acknowledgements and an email received from Mr. Hamdy. Mr. Wickham suggests that these documents somehow distinguish the three legal proceedings and establish separate retainers for each. I do not accept that position.
18The first retainer agreement which was signed on January 17th, 2011 expressly includes the following matters:
(a) anticipated criminal charges and first steps to prepare the defence to those charges; (b) instructions to proceed with partition and sale of the matrimonial home; and (c) all aspects of the family law proceedings.
19Mr. Hamdy signed an amendment to the retainer agreement on September 5, 2012 which again expressly stated that the application for partition and sale of the matrimonial home and the defence of criminal charges were included in the retainer. [2]
20There is absolutely no doubt that the application for partition and sale of the matrimonial home was integrally related to the family law proceedings. That action was included in both the initial and amended retainer agreements. Mr. Wickham has never rendered an account for the partition and sale application and has adduced no evidence to contravene what is clearly stated in the retainer agreements. The order for assessment will include any fees billed for the partition and sale action.
21Mr. Wickham further argues that his representation of Mr. Hamdy on criminal charges fell outside of the retainer and therefore should not form part of the assessment. He relies on the fact that a final account for the criminal charges was rendered on December 4, 2015. [3] I reject Mr. Wickham's argument for the following reasons:
(a) the original retainer agreement of January 17th, 2011 included the defence of criminal charges; (b) the amended retainer agreement of September 5, 2012 also referred to anticipated service to defend criminal allegations; (c) the only matter that was specifically excluded from the general retainer for "all of the issues that arise as a consequence" of the termination of his marriage was appeal proceedings; (d) the account rendered by Mr. Wickham on February 9th, 2011 which predominantly concerned services rendered for the family law proceedings also included a charge for a one hour attendance at 5 District police station in Mr. Hamdy’s company; [4] (e) the November 8, 2015 direction prepared by Mr. Wickham and signed by Mr. Hamdy does not distinguish between fees owed for the family law file and the criminal file. [5]
22In circumstances where a solicitor relies on the limited scope of a retainer, the evidential onus is on the solicitor to satisfy the court that both parties understood the retainer to be limited. Justice Hoilett made the following statement of the law in Coughlin v. Comery, [1996] O.J. No. 822:
The clearer principal that appears from the cases, in my view, is that the onus is on the solicitor who seeks to limit the scope of his/her retainer and where there is an ambiguity or doubt it will, generally, be resolved in favour of the client. It is beyond question, of course, that a clear and concise written document will facilitate proof.
23The evidential onus rests on Mr. Wickham and he has failed to adduce any admissible evidence to support his position. He has suggested that it would have been unseemly for him to rely on his own affidavit and submitted that the court can rely instead on his honour in accepting his submissions on contentious matters of fact. Needless to say, I cannot do anything of the sort.
24The criminal law account will also be subject to review at the October 29th, 2018 assessment hearing.
25If I am wrong in my assessment of the terms of the retainer agreements, I would nevertheless order that the criminal law account be assessed in the same hearing pursuant to my discretionary powers granted under section 4 of the Solicitors Act, R.S.O. 1990, Chapter s. 15.
26The account that Mr. Wickham rendered for the defence of the criminal proceedings claims $38,000 in fees for having represented Mr. Hamdy at a one-witness preliminary inquiry and appearing for two judicial pretrials in the Superior Court. When Mr. Hamdy advised Mr. Wickham that he intended to change counsel, Mr. Wickham prepared an acknowledgement which included an effort to absolve himself of responsibility for having failed to investigate what appears to have been an alibi defence. Experienced criminal counsel took over the case and it was promptly resolved by way of a peace bond.
27The fees that Mr. Wickham charged for services rendered on the criminal charges are so exorbitant that they cry out for assessment. These are precisely the type of “special circumstances” referred to in section 4 of the Solicitors Act which dictate that all of Mr. Wickham's accounts should be reviewed at one time by a single assessment officer.
(f) An Order That Mr. Wickham Serve and File a Solicitor’s Brief for the Assessment Hearing
28Assessment Officer Chiba ordered the applicant to seek an order from this court that Mr. Wickham serve and file for the assessment a Solicitor’s Brief containing copies of all legal accounts rendered to the client and subject to assessment, all time dockets, executed retainers and/or letters of engagement, client and trust ledgers, principal reporting letters and opinions, and any cost estimates. Mr. Wickham did not oppose this order and frankly acknowledged that he could not anticipate success at the hearing if he did not file these materials.
29In order to ensure that the assessment hearing would go forward on the scheduled date, I inquired of Mr. Wickham as to when he would be in a position to serve and file the required materials. Mr. Wickham considered his various obligations and indicated that he would be able to comply with the order by October 16th, 2018.
30Accordingly, it is the order of this court that Mr. Wickham serve and file his Solicitor’s Brief including all of the materials set out above no later than October 16, 2018.
(g) An Order for an accounting of all funds paid by Mr. Hamdy
31Mr. Wickham again acknowledged that he could not anticipate success at the assessment hearing without being able to present a proper account of monies already paid by Mr. Hamdy. Accordingly, this order will also go on consent.
Costs
32Mr. Hamdy gains nothing from this application apart from the opportunity to finally have Mr. Wickham's fees assessed. He was obliged to bring the application to settle questions which Mr. Wickham raised with the apparent purpose of impeding the assessment process. In the absence of any opportunity to seek damages, Mr. Hamdy understandably seeks his costs for the application.
33The factual circumstances which underlie the application were complex and demanded a great deal of work on the part of the applicant's counsel to prepare the application record and factum. The fact that those materials were so comprehensive was of particular assistance in light of the fact that Mr. Wickham did not file a factum and offered only a slim volume of responding materials. The application record contained an indexed compilation of documents which traced the history of the proceedings in a very reliable fashion. The applicant deserves to be compensated for the costs involved in preparing these materials.
34It is also fair to say that this application served an important public interest. Mr. Wickham is a once disbarred lawyer. He was readmitted to the Bar on strict terms of supervision and, based on the Statement of Claim filed by his supervising counsel, Mr. Rickards, it would appear that he all but ignored his responsibilities to the Law Society. This application served an important service to the public and the Justice system by challenging the behavior of a member of the Bar and bringing that behavior to the attention of the court.
35Mr. Wickham has done nothing to mitigate the costs which could be awarded against him. He rudely rebuffed inquiries from the applicant's counsel regarding his position on the parties to the assessment. He failed to file a factum which would have permitted the applicant to narrow his written and oral submissions. Most remarkably, he failed to provide any evidence to rebut the testimony of Mr. Hamdy or Mr. Donich and instead attempted to rely on his own submissions to the court as though his submissions could supplant sworn testimony. Mr. Wickham has yet to pay a cent of the $10,000 in costs awarded against him by Justice Dunphy in July, 2017.
36The applicant will be granted his costs according to the table set out in Schedule A to this endorsement. The award is primarily based on the partial indemnity scale with one alteration. I have awarded the costs of Ms. Hooper's work on the written materials on a full indemnity basis. The application record and factum were extremely valuable to the court in understanding the history of the proceedings and they compensated in some measure for Mr. Wickham's failure to provide a response.
37Costs will also be payable by Mr. Wickham to Mr. Rickards in the amount of $1,500 plus HST. Mr. Rickards has Mr. Wickham to thank for having been dragged unnecessarily into this assessment and he should be compensated for the time that he has spent at an examination for discovery and then to attend in court.
Justice Peter Bawden Date: December 24, 2018
Footnotes
[1] Applicant’s Amended Motion Record at page 53. [2] Tab 3, Page 2 of the Respondent’s Record. [3] A copy of the account rendered for services on the criminal file can be found at pages 404-405 of the Applicant’s Amended Application Record. [4] See page 327 of the Applicant's Amended Motion Record. [5] Page 202 of the Applicant’s Amended Application Record.