Laberge v. Lapointe , 2019 ONSC 130

COURT FILE NO.: 17-74433

DATE: 2019/01/07

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

JEAN-FRANCOIS LABERGE and LOW MURCHISON RADNOFF LLP

Solicitors/Respondents on the Motion

– and –

JULIE LAPOINTE, RAYMOND LAPOINTE and SUZANNE MARCOUX

Clients/Moving Parties

Michael Beeson, solicitor the for Respondent

James Katz, for the Moving Parties

HEARD: October 26. 2018

REASONS FOR DECISION

R. smith J.

1The moving parties Raymond Lapointe and Suzanne Marcoux have brought a motion to extend the time within which to oppose the confirmation of the assessment officer’s report and certificate of assessment dated April 3, 2018, and also to set-aside the assessment officer’s report and fix the amount of fees, or in the alternative to refer the matter back to the Assessment Officer for a hearing.

2The moving parties submit that this motion is in the nature of an appeal. Their primary ground is that the Assessment Officer erred in law by conducting the assessment when there was a genuine dispute as to the scope or the fact of the retainer.

3The respondent solicitors submit that Mr. Lapointe failed to attend the Assessment Hearing on April 3, 2018 and failed to file any responding material. Mr. Lapointe attended on the first date on January 2, 2018 and requested and obtained an adjournment of 90 days to obtain legal advice. Mr. Lapointe was clearly advised in French that the Assessment Hearing was adjourned to April 3, 2018 at 9:45 a.m. as he had requested. The solicitors submit that the motion should be dismissed or in the alternative the matter should be remitted back to the Assessment Officer.

Factual Background

4At the first attendance the Assessment Officer correctly advised the parties that if there was a genuine dispute about the retainer then she did not have jurisdiction to conduct the assessment. Mr. Lapointe requested an adjournment which was granted.

5Mr. Lapointe failed to attend the hearing on April 3, 2018, and did not file any material, and as a result the matter proceeded unopposed. Mr. Laberge advised the Assessment Officer of Mr. Lapointe’s position that he had not retained the respondent law firm until he signed the retainer agreement on November 25, 2016 and that the invoice being assessed involved legal services that were mostly provided before the November 25, 2016 retainer was signed. Mr. Laberge advised the Assessment Officer, as set out in his affidavit, that while the initial retainer was only signed with Casselman Plywood, Mr. Lapointe orally retained him and instructed him to protect his interests along with his daughter’s interest as they had both personally guaranteed the company’s debt to the Royal Bank. The legal services provided involved negotiating the terms of a receivership with the Royal Bank and a repurchase of the assets from the Receiver.

6The invoice being assessed was for $17,985.08 for fees and disbursements plus HST and was addressed to Julie Lapointe. Julie Lapointe has declared bankruptcy.

7The sum of $5,290.00 of fees plus HST of the total invoice of $17,985.08 were claimed for services provided and after the written retainer had been signed by Mr. Lapointe and Ms. Marcoux on November 25, 2016.

8The moving parties do not dispute the amount of the fees assessed but rather dispute having retained Low Murchison Radnoff LLP for the period prior to November 25, 2016.

Issues

(1) Have the respondents adequately explained their default in attending the hearing on April 3, 2018?

(2) If so, should the time be extended to oppose confirmation of the assessment report or should the matter be returned to the Assessment Officer to determine if there is a genuine dispute as to the retainer?

Default

The moving parties defaulted and failed to appear or file any material disputing the retainer agreement on or before the assessment hearing on April 3, 2018. Mr. Lapointe states that he misunderstood and thought that the 90 day adjournment was to allow the parties to negotiate a settlement. This excuse is weak as the matter proceeded in French and his request for an adjournment to obtain counsel was granted to a set date, namely April 3, 2018. His lack of familiarity with the assessment procedure in Ontario is not a valid reason for not obtaining counsel or inquiring to find out if a hearing date was set. Mr. Lapointe is also an experienced businessman.

9The moving parties did act quickly when the assessment came to their attention and brought their motion promptly.

10The moving parties have raised an issue which merits consideration as the initial retainer agreement was only signed by Julie Lapointe and the invoice in question was addressed only to Julie Lapointe and not Mr. Lapointe or Ms. Marcoux.

11In Calin A. Lawrynowicz Barristers & Solicitors and Marino Estate, 2016 ONSC 2065 at paras. 96 and 122, Perell J. reviewed the jurisdiction of the Assessment Officer and concluded at para. 105 that “If there is a genuine dispute about the existence of a retainer or about the scope of the retainer, the assessment officer has no jurisdiction…”

Disposition

12I am satisfied that the unopposed certificate of assessment should be set aside as there is a question about whether there is a genuine dispute about the existence of a retainer. The Certificate of Assessment is remitted back to the Assessment Officer to determine if there is a genuine dispute about whether Mr. Lapointe or Ms. Marcoux retained the respondent law firm. The applicants do not contest the amount assessed but only whether they retained the law firm before November 25, 2016.

Costs

13The moving parties have filed a Costs Outline seeking $4,634.00 if they were successful. The applicants seek costs of approximately $7,000.00.

14In this case the applicants have been successful in obtaining an order remitting the issue of whether there is a genuine retainer issue and if so whether the Assessment Officer has jurisdiction. However, the applicants have defaulted and failed to attend the assessment hearing and caused these costs to be incurred, therefore the moving parties are ordered to pay costs of $5,000.00 inclusive of disbursements and HST, which I find they would reasonably expect to pay in the circumstances.

The Honourable Mr. Justice Robert Smith