Court File and Parties

COURT FILE NO.: CV-13-00476128 DATE: 20190605 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: Howie, Sacks & Henry LLP Plaintiff – and – Sophie Deligioridis, Mary Deligioridis & Harriet Boutzis Defendants

COUNSEL: E. Khoshbin, for the Plaintiff Mary Deligioridis, for the Defendants

HEARD: April 24, 2019

REASONS FOR JUDGMENT

Carole J. Brown, J.

[1] The clients, Sophie Deligioridis, Mary Deligioridis & Harriet Boutzis, bring this motion opposing confirmation of the Amended Report and Certificate of Assessment of the Assessment Officer, C. Chiba, dated December 6, 2017. I am advised that the only amendment to the Report was the correct date, as the original Report had contained an incorrect date for the hearing and/or judgment.

The Background Facts

[2] The clients retained Michael J. Henry and Howie, Sacks and Henry LLP on or about April 23, 2012 through March 5, 2013 with respect to five tort and an accident benefits files for the clients, a tort and accident benefits file for each of Sophie and Mary and accident benefits file for Harriet. Following this retainer, the lawyers rendered an account in the total amount of $74,069.86 for the five files. An assessment of these amounts was scheduled and, after five appointments and adjournments by the clients over a period of five years, the assessment officer ordered that there would be no further adjournments and that the assessment would be heard December 4-6, 2017. Following the three-day hearing, in which Sophie appeared, by agreement, on behalf of all three clients and cross-examined the witnesses, Madam Assessment Officer Chiba, in considered reasons, awarded the solicitors $17,500 plus costs of $5,085, inclusive of HST for a total of $22,585 on December 6, 2017.

[3] The clients oppose confirmation of the amended Report and Certificate of Assessment on the grounds and that the assessment officer made numerous errors, including procedural errors, unfairness, breach of natural justice, misapprehension of material facts and palpable and/or overriding errors on factual matters, the application of wrong legal principles, an assessment amount which is so unreasonable as to constitute an error in principle, and costs. It is the position of the clients that no amounts should be awarded for the five solicitors’ accounts or costs. It is the position of the clients that their counsel rendered no valuable service whatsoever to them, lied to them about the status of their accounts, and failed to advise them of examinations for discovery. As regards the assessment, it is the position of the clients that the assessment officer did not allow Sophie to speak, laughed at her, that her human rights were breached due to mobility issues, that there was no breakdown of the assessment amount by person and file and there were no transcripts available and no recordings taken of the proceedings. The clients seek a new assessment hearing where they can get transcripts and where the amounts awarded to the solicitors will be broken down by file. However, the clients’ primary position is that no amounts should be awarded as they maintain that the lawyers did no work of any value.

[4] The position of the solicitors is that there was no misapprehension of evidence, no palpable or overriding error on factual matters and that deference should be accorded the assessment officer. It is the position of the solicitors that the allegations of the clients are not based in or supported by any documentary evidence, but were, at the hearing, all oral evidence. It is the position of the solicitors that little would be gained from ordering a new assessment hearing, that in according deference to the assessment officer, it should be noted that the assessment officer made findings of credibility, stating in her reasons that she preferred the evidence of the solicitors to that of the clients.

The Law

[5] A motion to oppose confirmation of an assessment officer’s certificate is made to the Ontario Superior Court of Justice pursuant to the Solicitors Act, sections 6(9). Where objections were not made at the hearing, as in this case, and a motion is brought to oppose confirmation, the motion is in the nature of an appeal and is limited to errors relating to jurisdiction, procedural fairness and/or patent misrepresentation of evidence: Starkman Barristers v Cardillo, 2017 ONSC 5530, at para 25 citing RZCD Law Firm LLP v Williams, 2016 ONSC 2122 (Ont. Div. Ct.).

[6] The applicable standard of law on an appeal from an assessment officer’s decision 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.

Starkman Barristers v Cardillo, supra at para 26 citing Rabbani v Niagara (Regional Municipality), 2012 ONCA 280.

[7] An assessment officer’s ruling is “entitled to considerable deference”. The court hearing the motion opposing confirmation “should not retry the matter or interfere with the result, unless the reasons demonstrate some error in principle or unless there has been some absence or excess of jurisdiction or some patent misapprehension of the evidence”: RZCD Law Firm LLP v Williams, 2016 ONSC 2122 (Ont. Div Ct.).

Analysis

Overview

[8] I have reviewed all documentation produced, as well as the assessment officer’s reasons, and considered all submissions. I find there to be no basis for setting aside Assessment Officer Chiba’s decision of December 6, 2017.

[9] I do not find there to have been a misapprehension of the material facts, any palpable and overriding errors on factual matters, the application of wrong legal principles or an unreasonable assessment amount. I find there to have been no procedural errors, unfairness or breach of natural justice.

[10] In my view, the decision was well reasoned, factually and legally sound and the assessment amount justified. Further, in my view, a new assessment hearing, as sought by the clients, would be a poor use of time, resources and money.

[11] I note, moreover, that Assessment Officer Chiba made findings of credibility, preferring the evidence of the solicitors to that of the clients. The assessment officer, hearing the assessment, was in the best position to make such a finding and deference is to be accorded to this finding.

Procedural Errors

[12] As regards procedural errors and unfairness, I have considered the documentation, the decision and the long history of delays and adjournments sought by the clients, mainly due to medical reasons. No evidence was produced in support of their requests for the latest adjournment, and no evidence was adduced in support of their alleged inability to proceed on December 4, 2017.

[13] The clients agreed that Sophie would represent them all, which she did throughout. The clients further agreed that Sophie would give evidence on all their behalves and in their absence.

[14] I find no procedural error, unfairness or denial of natural justice in the circumstances. See Moore v John A. Annen Barrister Professional Corporation, 2017 ONSC 7720 at para 11(b); R. 55.01 of the Rules of Civil Procedure.

[15] As regards misapprehension of evidence, the standard of review is very stringent: Starkman Barristers v Cardillo, 2017 ONSC 5530 at para 61, citing Housen v Nikolaisen, 2002 SCC 33. Regarding palpable error there is a high threshold. As stated in Starkman, supra at para 62:

A finding is a palpable error if it is obvious, clearly wrong, unreasonable or unsupported by the evidence: Trillium Motor World Ltd. v General Motors of Canada Limited, 2017 ONCA 545 (Ont. C.A.) It is overriding if it is serious enough to vitiate the findings of fact in issue: Wilk v Arbour, 2017 ONCA 21 (Ont. C. A.) at para 18.

[16] Based on all the evidence, the reasons of the Assessment Officer and the parties’ submissions, I find no misapprehension of evidence or palpable error.

[17] There was no application of wrong legal principles. The assessment officer correctly exercised her discretion in applying a reduction in the fees charged after carefully analyzing and considering the evidence regarding the work done and accounts rendered. See Tabyanina v Jagloo, 2016 ONSC 2172, paras 26, 43.

[18] I am not persuaded by the clients’ argument that the assessment officer erred in principle by not assessing each account individually. No authority was cited which would require this. I note further, in this regard, that the assessment officer, in her reasons, stated that no breakdown was made as the evidence given at the hearing was as regards all the clients and the work done for the clients together. The evidence given was not broken down by client or file.

[19] I find no application of a wrong legal principle. Assessment Officer Chiba considered all relevant factors to be considered on an assessment as set forth in Cohen v Kealey and Blaney. She fulfilled her duty as set forth in Moore, supra, at para 36, citing C(R) v McDonald, 2008 SCC 53, [2008] 3 SCR 41 (SCC) and rendered a considered decision based on all of the documentary and oral evidence.

[20] Finally, the clients argue that the assessment amount was so unreasonable as to constitute an error in principle. The assessment officer reduced the fees from $74,069.86 to $17,500 plus $5,085 in costs for a total of $22,585 and gave reasons for doing so. The clients argue that anything greater than $0 would constitute an assessment so unreasonable as to constitute an error in principle.

[21] I note from the evidence that over five years, the clients had paid nothing toward their accounts. They maintained throughout that the fee should be $0. Assessment Officer Chiba fairly and reasonably exercised her discretion in making her determination as regards fees. I find there to be no justification for this appellate court to interfere with Assessment Officer Chiba’s determination.

[22] Based on all of the foregoing, I confirm the decision of the assessment officer and the Amended Report and Certificate as issued.

[23] In all of the circumstances of this case, I award the solicitors their costs in the amount of $5,000 inclusive of disbursements and HST.

Carole J. Brown, J.

Released: June 5, 2019