COURT FILE NO.: CV-16-00559630
DATE: 20190829
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Mark Couper
Applicant
– and –
Adair Barristers LLP
Respondent
Mark Couper, on his own behalf
Jordan Katz, for the Respondent
HEARD: August 7, 2019
Koehnen J.
[1] This is a motion brought by Mark Couper to oppose confirmation of a certificate and report of Assessment Officer Boehm dated March 11, 2019 which assesses the account of the respondent Adair Barristers LLP at $855,268.73.
Introduction
[2] Mr. Couper initially retained Adair Morse LLP to represent him in an aggressively fought action in which Mr. Couper was the plaintiff. A few months after that retainer, Adair Morse dissolved and the lawyer with primary carriage of Mr. Couper’s file, John Adair, formed his own firm, Adair Barristers LLP (now Adair Goldblatt Bieber). Adair Barristers continued to work on the matter. The work involved preparation for and carriage of a four week trial. At the outset of the retainer, Mr. Couper wanted Adair Morse to take an “aggressive approach” in dealing with the defendants’ ongoing strategy of continuously delaying the action.
[3] Mr. Couper requisitioned the assessment before Assessment Officer Boehm. The assessment occurred over five days in November 2018. After the hearing, Assessment Officer Boehm released reasons of 27 pages. The reasons review in detail the accounts at issue, the steps that Mr. Couper’s lawyers took, the billable rates his lawyers charged, increases in those billable rates and the nine factors set out in Cohen v. Kealey & Blaney, [1985] O. J. No. 160, 26 C.P.C. (2d) 11 (Ont. C.A.) to consider when determining a fair and reasonable amount for legal services.
[4] The retainer agreement is dated April 23, 2013. It provides that John Adair will have primary day-to-day carriage of the matter and also refers to Geoff Adair and Gordon Maguire as possibly being involved if necessary. The business effect of the agreement was that Mr. Couper would pay Adair Morse only $5,000 per month which would be held in trust and applied to the firm’s fees when bills are rendered. Adair Morse would record time at its normal hourly rates, but Mr. Couper would not pay the fees until the case was settled or resolved at trial in his favour. If Mr. Couper was successful in the litigation, he would pay a premium equal to 50% of the hourly fees recorded.
[5] Mr. Couper takes issue with the hours recorded and with the ability of his lawyers to charge the 50% premium.
[6] Mr. Couper raises four grounds to oppose confirmation:
(i) the Assessment Officer had no jurisdiction;
(ii) Mr. Couper was subjected to procedural unfairness;
(iii) the Assessment Officer proceeded in a way so as to give rise to a reasonable apprehension of bias; and
(iv) the Assessment Officer misapprehended evidence.
[7] A motion to oppose confirmation is treated like an appeal: Moore v. John A. Annen Barrister Professional Corporation, 2017 ONSC 7720 at paragraph 11(o). In other words, the moving party must demonstrate that the Assessment Officer erred in law, made a palpable error of fact or made an error of principle in the exercise of his discretion.
[8] For the reasons set out below I dismiss Mr. Couper’s motion and confirm the Report and Certificate of Assessment of the Assessment Officer.
[9] Mr. Couper has failed to demonstrate that the Assessment Officer made any error of law, fact or principle.
A. The Jurisdiction Issue
[10] Mr. Couper submits that the Assessment Officer had no jurisdiction because: (i) the assessment involved a contingency fee; (ii) there was an issue about whether the retainer agreement continued after Adair Morse dissolved; and (iii) there are disputes about the terms of the retainer.
[11] Mr. Couper submits that these issues had to be determined by a judge, not by an assessment officer.
(i) Jurisdiction of Assessment Officer over Contingency Fees
[12] Section 28.1(11) of the Solicitors Act, R.S.O. 1990, c. S.23 provides that, if an assessment involves a contingency fee arrangement, either the client or the lawyer should apply to the Superior Court of Justice for an assessment. The reference to Superior Court of Justice refers to a judge or master and not to an assessment officer: Cookish v. Paul Lee Associates Professional Corporation, 2013 ONCA 278 at para. 28 – 29.
[13] The respondent submits that the retainer does not include a contingency fee because it does not give it the right to a percentage of the judgment. I do not agree. The definition of contingency fee under the Solicitors Act does not require a lawyer to obtain a percentage of the judgment. Instead, section 28.1 (2) of the Solicitors Act provides:
“A solicitor may enter into a contingency fee arrangement that provides that the remuneration paid to the solicitor for the legal services provided to or on behalf of the client is contingent, in whole or in part, on the successful disposition or completion of the matter in respect of which services are provided.”
[14] The retainer agreement between Adair Morse LLP and Mr. Couper provides, among other things, that Mr. Couper is not responsible for fees incurred but not billed “unless and until the case is settled or resolved at trial” in Mr. Couper’s favour. In addition, the retainer agreement provides that if Mr. Couper is successful in the litigation, Adair Morse is entitled to “a premium equal to 50% of the hourly rate fees incurred”. Those provisions make the remuneration paid to Adair Morse for legal services contingent, at least in part, on the successful disposition of the matter. As a result, the retainer agreement contains a contingency fee as it is defined in the Solicitors Act.
[15] That, however, does not end the analysis.
[16] Even though section 28.1(11) required Mr. Couper to apply to a judge, a judge has the power to delegate issues to an assessment officer: Cookish: at paras. 35, 38. That said, issues about the validity of a contingency fee or disputes about the existence of or terms of the retainer should usually be decided by a judge because they involve broader questions of law and fairness: Cookish at para. 39-42.
[17] In this case, Assessment Officer Boehm recognized the contingent nature of the retainer agreement and raised the question of his jurisdiction with the parties. After pointing out that he may not have jurisdiction because of the contingent nature of the retainer, the Assessment Officer asked Mr. Couper whether he consented to the Assessment Officer’s jurisdiction. Mr. Couper replied that he consented and undertook not to appeal any decision based on lack of jurisdiction.
[18] In Cookish, R.A. Blair J.A. noted:
“… Courts have been careful to ensure that Assessment Officers do not deal with retainer disputes (except quantum) unless they are specifically authorized to do so and that courts and judges should instead have that responsibility.” (Emphasis added)
[19] In this case, Mr. Couper specifically authorized the Assessment Officer to take jurisdiction even though the matter involved a contingency fee.
[20] The respondent submits that Mr. Couper is now estopped from contesting the jurisdiction of the Assessment Officer. I share that view. In Ryan v. Moore, 2005 SCC 38, [2005] 2 S.C.R. 53 Bastarache J. quoted Lord Denning with approval in Amalgamated Investment & Property Co. (In Liquidation) v. Texas Commerce International Bank Ltd., [1982] 1 Q.B. 84 (C.A.), at p. 122, as follows:
“When the parties to a transaction proceed on the basis of an underlying assumption — either of fact or of law — whether due to misrepresentation or mistake makes no difference — on which they have conducted the dealings between them — neither of them will be allowed to go back on that assumption when it would be unfair or unjust to allow him to do so. If one of them does seek to go back on it, the courts will give the other such remedy as the equity of the case demands.”
[21] Mr. Couper clearly represented to the Assessment Officer that he would not appeal the decision based on jurisdiction. He made that representation intending that it would be relied upon. While Mr. Couper underscored before me that he was a self-represented litigant at the assessment (as he was on the hearing before me) and should not be held to the standard one might apply to a lawyer when deciding whether to hold them to commitments they have made. Mr. Couper is a sophisticated individual. He has an MBA, created the company that was the subject of the litigation in respect of which he retained Adair Morse, grew the company successfully and took it public. He is articulate and highly intelligent. I am comfortable that, when the Assessment Officer raised the issue of jurisdiction, Mr. Couper understood the issue and the consequence of agreeing to the Assessment Officer’s jurisdiction. I was pointed to no evidence that suggested that Mr. Couper misunderstood the issue or misunderstood the effect of agreeing not to appeal on jurisdiction.
[22] To release Mr. Couper from his undertaking would be unfair to the Assessment Officer and to the entire process. It would effectively allow Mr. Couper to have his cake and eat it too. If he liked the decision of the Assessment Officer, he would have enjoyed the benefit of an earlier hearing than he would have obtained before a judge. If he did not like the decision of the Assessment Officer, he could resile from his agreement and appeal based on jurisdiction.
[23] If the matter had first come to a judge, the judge would have been required to assess the contingency arrangement for reasonableness and would then have been required to determine how to proceed with the balance of the assessment. In case I am wrong in my analysis of jurisdiction, I will carry out that additional analysis now to possibly save the parties the time and expense of a further proceeding.
[24] Mr. Couper was represented by other counsel before retaining Adair Morse. He had incurred unpaid fees of approximately $175,000 with his former counsel. Adair Morse was willing to assume carriage of the matter for payment of $5,000 per month. The remainder of the time Mr. Adair incurred would not be payable unless there was a judgment in favour of Mr. Couper. It was clear when Adair Morse was retained that the litigation was being aggressively fought by the defendant at every turn. Indeed, Mr. Couper wanted to retain Adair Morse because he thought they could deal more effectively with the defendants’ tactics than could his previous lawyers. All of that put Adair Morse to considerable risk for which they should be compensated.
[25] Mr. Couper could have avoided the success premium by agreeing to pay Adair Morse its ordinary hourly fees as the case progressed. He was either unable to do so or preferred the advantage of an arrangement that required him to pay only $5,000 per month during the course of litigation plus a 50% premium on hourly fees if he succeeded. As noted, Mr. Couper was an experienced, sophisticated business person who was fully capable of assessing the advantages and disadvantages of such an arrangement. Mr. Couper willingly entered into the arrangement.
[26] In those circumstances I find that the contingent nature of the retainer was fair and should be enforced.
[27] Having approved of the contingency arrangement I would then have had to determine whether I should continue with the detailed assessment of accounts or whether to delegate that task to an assessment officer. There is no doubt that I would delegate the matter to an assessment officer.
[28] The assessment involved a lengthy, detailed analysis of time entries and the progress of an action over the course of four years; all to determine whether the time spent was necessary and appropriate. That is a task carried out far more effectively by reference to an assessment officer than by a judge.
[29] In Cookish, the Court of Appeal recognized the propriety of a judge dealing with certain issues on an assessment of costs and delegating others to an Assessment Officer for a determination of the proper quantum if necessary: Cookish at para. 16.
[30] Rule 54.02 states that a judge may at any time in a proceeding direct a reference of the whole proceeding or any issues in it where “a prolonged examination of documents or an investigation is required that, in the opinion of the judge, cannot conveniently be made at trial.” This is such a situation. Having a judge preside over a five-day review of docket entries, hear evidence about the need to take certain steps leading up to and during a 4-week trial and assess how much time those steps should have taken would be an inefficient use of judicial resources.
[31] Given that I would have found the contingency arrangement to be reasonable and would have directed the determination of specific quantum to an Assessment Officer in any event, there is no reason to repeat that exercise afresh given that Assessment Officer Boehm has already completed that task.
(ii) Did the Retainer Agreement Continue After Adair Morse Dissolved?
[32] Mr. Couper submits that his written retainer was with Adair Morse LLP and was dated April 23, 2013. It contained a contingency fee. However, Adair Morse LLP dissolved three months later on July 1, 2013. Mr. John Adair then formed his own firm, Adair Barristers. Mr. Couper argues that he did not enter into a new retainer agreement with Adair Barristers or Adair Goldblatt Bieber, as a result of which, any agreement to pay a 50% premium terminated on the dissolution of Adair Morse LLP.
[33] Mr. Couper relies on Paolettti v. Gibson, (2009) 2009 ONCA 71, 248 O.A.C. 287 for the proposition that, once the retainer or its terms are in dispute, the dispute cannot proceed before an Assessment Officer but must proceed before a judge. Section 3 of the Solicitors Act is to similar effect and provides that where the retainer of the solicitor is not disputed, an order for an assessment may be obtained on requisition from a local registrar of the Superior Court of Justice. The converse is that an assessment is not available where the retainer is in dispute.
[34] I cannot accept the submission that the 50% premium was terminated when Adair Morse dissolved for several reasons.
[35] First, Mr. Couper did not advance this argument before the Assessment Officer. This is a new argument he raises for the first time on appeal.
[36] Second, Mr. Couper agrees that he continued to pay Adair Barristers $5,000 per month and was not paying the hourly fees that Adair Barristers was accumulating. In other words, he was conducting business with Adair Barristers on the terms of the retainer agreement he had signed with Adair Morse. There was no other basis for Mr. Couper to conduct business with Adair Barristers as he did, other than the retainer agreement with Adair Morse. Mr. Couper agrees that no new terms of retainer were presented to him or agreed to by him after Mr. Adair formed Adair Barristers.
[37] Fourth, the retainer letter with Adair Morse LLP is on the letterhead of John Adair and signed by John Adair. The opening sentence of the letter states “this letter shall confirm your retainer of my services to act for you in the Nu-Life litigation.” (Emphasis added). In other words, Mr. Couper was retaining John Adair on certain terms and conditions. The retainer agreement with Adair Morse provided that John Adair would have primary day-to-day responsibility for the matter. John Adair continued to have primary day-to-day responsibility for the matter after he formed Adair Barristers.
[38] Finally, on August 24, 2016 John Adair sent Mr. Couper an email in which he confirmed a conversation they had just concluded in which they agreed, among other things, that:
“I will act for you on the appeal on the same basis as set out in our initial retainer - i.e. I will charge my prevailing hourly rate (now $470) and you will not be responsible for payment until the case is concluded by judgment or settlement, but I am entitled to a 50% premium in addition to the hourly time. I will need Gord to assist with the appeal on the same terms, and his current hourly rate is $350.”
[39] Mr. Couper wrote back saying he was confident with Mr. Adair as his lawyer for the appeal and took no issue with the 50% premium.
[40] Given these circumstances, it is clear to me that the parties intended to and did proceed on the same terms as contained in the original retainer of April 23, 2013. Mr. Couper continued to enjoy the benefit of all its terms. He received the services of John Adair. He did not pay the hourly time recorded on the file. He paid only $5,000 per month. There was no other basis for allowing Mr. Couper to enjoy these benefits other than the retainer of April 23, 2013. Mr. Couper must take the bitter with the sweet. He cannot enjoy the benefits of the retainer agreement for several years but then deny its existence when called upon to deliver his end of the bargain. I find that both John Adair and Mr. Couper agreed to continue to operate under the terms of the retainer agreement of April 23, 2013 after the dissolution of Adair Morse and until Mr. Adair removed himself from the record.
[41] As a result, had the assessment come to me initially, and had Mr. Couper raised this argument, I would have dismissed the argument and referred the matter to an Assessment Officer.
(iii) Disputes About Terms of Retainer
[42] In further support of his jurisdictional argument, Mr. Couper submits that there is a dispute about a number of terms concerning the retainer. Mr. Couper submits that any such disputes must be resolved by a judge and not by an Assessment Officer.
[43] However, simply because the client alleges that there is a dispute does not remove the matter from the jurisdiction of an assessment officer. Only legitimate disputes regarding the retainer or its terms will oust an assessment officer’s jurisdiction. A client cannot remove the assessment officer’s jurisdiction by a bald allegation of a disputed term. The dispute must be legitimate. In Paoletti at para. 29, the Court of Appeal quoted with approval the following statement of Molloy J. in Park v. Perrier (2005), 2005 25637 (ON SCDC), 200 O.A.C. 377 (Div. Ct.), at para 66:
“The client cannot avoid the assessment procedure by a bare allegation of a disputed retainer. The dispute must be a legitimate one, and an assessment officer is empowered to make a limited inquiry to determine if that test is met.”
[44] In my view what Mr. Couper alleges are disputes about the retainer are not legitimate disputes but thin allegations without substance. The Assessment Officer examined those allegations and determined they were without merit. I agree with the Assessment Officer’s determination of those issues.
[45] By way of example, Mr. Couper alleges that he retained Mr. Geoff Adair, not Mr. John Adair to perform work on the file. Mr. Couper bases this submission on his initial email to the firm in which he asked to retain Mr. Geoff Adair. Following this email, however, Mr. Couper signed a retainer agreement on the letterhead of Mr. John Adair, which retainer agreement, as noted above, indicates that he was retaining John Adair’s services and which retainer agreement specifically indicated that Mr. John Adair would have day to day carriage of the matter. It would have been obvious to Mr. Couper that Geoff Adair was not active on the file, yet he continued to proceed with John Adair.
[46] Next, Mr. Couper submits that he had a “collateral agreement” with Adair Morse that they would bring a motion for summary judgment. He bases the allegation of collateral agreement on an initial email that he sent to Adair Morse suggesting that they bring a motion for summary judgment.
[47] A client’s request or suggestion that a motion for summary judgment be brought does not amount to a collateral agreement which forms part of the retainer. Mr. Couper knew full well that no summary judgment motion had been brought, yet proceeded to trial with Mr. Adair. There are many good reasons for not bringing summary judgment motions. The failure to bring a summary judgment motion, coupled with the client’s silence in the face of that failure does not amount to a breach of a retainer agreement so as to remove an assessment officer’s jurisdiction.
[48] Mr. Couper also submits that he had a collateral agreement with Mr. Adair that he would use transcripts of conversations that Mr. Couper had surreptitiously recorded. Mr. Adair failed to do so thereby putting the terms of his retainer into question. In addition, Mr. Couper argued on the assessment that Mr. Adair’s failure to use the transcripts constituted negligence which should lead to a reduction in his fees.
[49] The Assessment Officer considered these arguments and concluded that they did not amount to a breach of a retainer agreement. He was correct in that finding.
[50] The Assessment Officer accepted Mr. Adair’s evidence that he had turned his mind to the taped conversations but determined that they would not have been helpful to Mr. Couper’s case and could have negatively impacted the trial judge’s impression of Mr. Couper.
[51] Mr. Couper has since brought an action in negligence against his former lawyer for the alleged failure to take a number of steps in the action including the failure to bring a motion for summary judgment and the failure to introduce the taped conversations at trial. Complaints of that sort are better resolved in an action for negligence than they are on a costs assessment.
[52] The most material allegation concerning the terms of the retainer is that Mr. Adair removed himself from the record after completing the appeal on behalf of Mr. Couper. Paragraph 5 of the retainer agreement provides that, if Adair Morse terminates the retainer “prior to the conclusion of the litigation” then Mr. Couper will be responsible only for the fees Adair Morse has incurred but would not be responsible for the 50% premium.
[53] Mr. Couper submits that Mr. Adair’s removal of himself as solicitor of record after completion of the appeal amounts to termination of the retainer before conclusion of the litigation which disentitles him to the 50% premium.
[54] The Assessment Officer dealt with this contention at paragraphs 102 - 107. I adopt his analysis as correct.
[55] Like the other allegations concerning the terms of the retainer being in dispute, this is not a legitimate dispute. The trigger for Mr. Couper’s obligation to pay Mr. Adair’s fees and the 50% premium is contained in paragraph 4 of the retainer agreement. The relevant language provides:
“In the event that you are successful in the litigation (meaning that the defendants are obligated to pay you any amount of money either by settlement or judgment)…[You will pay the fees and the 50% premium]
[56] The trigger for the obligation to pay the premium is a judgment that obligates the defendants to pay an amount of money. That trigger was met by the successful trial judgment and the dismissal of the defendants’ appeal.
[57] Mr. Couper argues that the litigation was not over because enforcement proceedings were still required in New Jersey to enforce the judgment. While that may have been the case, Mr. Couper’s obligation to pay is not triggered by recovery on the judgment. It is triggered by issuance of the judgment.
[58] In my view it was open to the Assessment Officer to consider all of these issues to determine if they were real issues that required the involvement of a judge or whether they were bare allegations that should not interfere with the assessment. If I am wrong in this analysis, and the issues should have been remitted to a judge, I have considered the issues and would dismiss Mr. Couper’s arguments for the reasons set out above.
B. No procedural unfairness
[59] Mr. Couper submits that I should refuse to confirm the certificate of assessment because the Assessment Officer subjected Mr. Couper to procedural unfairness.
[60] Mr. Couper’s first submission in this regard is that he served his seven-volume hearing record 60 days before the hearing as was required by the hearing timetable. Mr. Adair, however, served a seven-volume responding record only 17 days before the hearing and not 60 days before. Mr. Adair submits that he did so only in response to the seven-volume record that Mr. Couper had served.
[61] I cannot see how Mr. Adair’s responding record caused any procedural unfairness to Mr. Couper. Mr. Couper did not argue that he suffered some specific prejudice because of the difference in time or because of Mr. Adair’s use of any portions of his record during the costs assessment. Instead the prejudice was more ephemeral. Namely that Mr. Adair had 60 days to consider Mr. Couper’s record while Mr. Couper had only 17 days to consider Mr. Adair’s record before the hearing began. Mr. Couper does not raise any examples to demonstrate how the 17 days was inadequate nor does he say that more time would have allowed him to present a better hearing.
[62] Moreover, the Assessment Officer offered to adjourn the hearing for a day or two to allow Mr. Couper additional time. Mr. Couper declined that opportunity. If a day or two was inadequate, Mr. Couper could have asked for a longer adjournment. He did not do so.
[63] Mr. Couper’s second submission in this regard is that the Assessment Officer allowed Mr. Adair to enter privileged documents into the record.
[64] The documents in question are emails that Mr. Adair wrote to Mr. Couper. In those emails Mr. Adair provides detailed analysis of a settlement offer that the defendants in the litigation had made. The emails show that Mr. Adair strongly recommended that Mr. Couper either try to negotiate a slightly improved offer or accept the offer the defendants had made. Mr. Adair explained why the settlement offer was actually better than the result that Mr. Couper was likely to obtain at trial. Mr. Adair underscored that if Mr. Couper proceeded to trial and recovered damages in the range that Mr. Adair expected, legal fees would eat up a disproportionate amount of the judgment. Accepting the settlement offer would put Mr. Couper into a better position because he would avoid the cost of trial, avoid the 50% premium on trial costs and have more money in his hands than he would at the end of a successful trial.
[65] Mr. Adair’s analysis proved prescient. Exactly what Mr. Adair predicted would happen did happen.
[66] During the assessment, Mr. Couper argued that Mr. Adair’s costs were unreasonable because they were disproportionate to the amounts recovered. The Assessment Officer quoted from the privileged documents to demonstrate that any disproportionality in the legal fees was the responsibility of Mr. Couper; not of Mr. Adair.
[67] I agree with the Assessment Officer’s analysis.
[68] It is well-established that privileged documents can be used on an assessment where they are relevant to issues raised on the assessment: Prouse v. Chowne LLP v. Northey, [2002] A.J. No. 144.
[69] Mr. Adair’s emails were relevant to the allegation that his fees were disproportionate to the outcome at trial.
[70] Mr. Adair warned Mr. Couper in clear, direct language that legal fees would become disproportionate if he proceeded to trial. Mr. Adair showed Mr. Couper exactly how that would arise. Indeed, to make the settlement even more attractive, Mr. Adair went so far as to surrender his right to the 50% premium if Mr. Couper accepted the settlement offer.
[71] Despite all of this, Mr. Couper rejected the settlement offer. Mr. Couper believed the trial would result in a much bigger damage award than his own lawyer said it would.
[72] On the assessment, Mr. Couper sought to blame Mr. Adair for running up disproportionate fees but deprive Mr. Adair of the ability to defend himself against that allegation. That is procedurally unfair, not the Assessment Officer’s decision to allow Mr. Adair to defend himself.
[73] The third allegation of procedural unfairness concerns an email and an escrow agreement that the Assessment Officer did not allow Mr. Couper to enter into evidence.
[74] After the trial was over Mr. Adair and Mr. Couper met to discuss the defendants’ appeal. It appears that tensions had arisen between them in that meeting. After the meeting, Mr. Adair wrote Mr. Couper an email dated August 10, 2016 which confirmed the upshot of their discussion. In the email Mr. Adair states:
“2. At the end of the meeting, I advised you in clear terms that I will not continue to represent you in any capacity, including (but not limited to) with respect to the appeal, unless we have a clear written retainer agreement that sets out the terms of the retainer going forward and that resolves any and all existing disputes between us regarding fees.
- I also advised you that I will not do one single minute of work in any capacity until the retainer/fee issue(s) are resolved.”
[75] Mr. Adair attached a fee and retainer revision agreement to the email. The third recital to the proposed agreement indicates that “the parties disagree about both the terms of the existing Adair retainer agreement and the quality of work that Adair has done;”.
[76] The proposed fee and retainer revision agreement (which incidentally was never entered into) would have had Mr. Couper agree to: the amount of the fees billed to date; pay those fees “once funds are available to satisfy the account”; not to assess Adair’s account; not to bring any negligence or other proceedings against Mr. Adair; and not to assess Mr. Adair’s account for enforcement efforts.
[77] Mr. Couper submits the email and agreement are relevant because they show that Mr. Adair knew that he would be involved in enforcement efforts. As a result, Mr. Couper concludes that Mr. Adair’s step in removing himself from the record before there had been recovery on the judgment demonstrates that Mr. Adair was removing himself from the record in a way that disentitled him to the 50% premium under the retainer agreement.
[78] The fact that Mr. Adair may have believed he would be involved in enforcing the judgment does not change the retainer agreement which entitled Mr. Adair to his fees and success premium when judgment was issued in favour of Mr. Couper. Whether Mr. Adair believed that he would or would not be involved in enforcement procedures going forward has no bearing on the interpretation of that contractual provision.
[79] Mr. Couper also submits he was deprived of procedural fairness by not being allowed to enter into evidence during the assessment an escrow agreement dated June 11, 2018. The escrow agreement was agreed to after Mr. Adair had obtained a charging lien of $801,792.63 against the judgment in the underlying action. The parties agreed that the charging order would be satisfied by paying $400,000 directly to Mr. Adair with the remaining balance being paid into escrow pending resolution of the costs assessment.
[80] Mr. Couper submits that the escrow agreement was relevant to the costs assessment because it demonstrates that the litigation ended as of the date of the escrow agreement. In Mr. Couper’s submission this proves that Mr. Adair terminated his retainer prematurely and thereby disentitled himself to the 50% premium.
[81] I cannot accept that argument. The escrow agreement was merely a mechanism by which Mr. Couper and Mr. Adair resolved an issue that arose out of Mr. Adair’s charging lien. If anything, the escrow agreement was to the benefit of Mr. Couper because it ensured that he would be able to recover the amount of cost that he was contesting without any issue of enforcement. Once again, the fact that Mr. Adair was willing to forgo access to a portion of his fees pending resolution of the costs assessment does not affect his contractual entitlement to the 50% premium on his hourly fees.
C. Misapprehension of Evidence
[82] Mr. Couper’s final ground for resisting confirmation of the Report and Certificate is that the Assessment Officer allegedly misapprehended evidence. The matters with respect to which Mr. Couper submits the Assessment Officer misapprehended evidence and my disposition of that submissions are as follows:
(i) The Assessment Officer mistook the Adair Morse retainer agreement as the one that governed the relationship with Adair Barristers. This is not a misapprehension of evidence. The Assessment Officer had a reasonable basis for finding that the parties acted as if they continued to be governed by the Adair Morse retainer. Not only is that finding of fact entitled to deference, I have reached the same conclusion on the materials before me.
(ii) The Assessment Officer misapprehended Mr. Couper’s submission on the use of the transcripts of taped conversations and did not understand that the use of the taped conversation was part of a collateral agreement. As noted above, I reject Mr. Couper’s submission of a collateral agreement to that effect.
(iii) The Assessment Officer misapprehended Mr. Adair’s refusal to seek a new trial on appeal. This is irrelevant. Mr. Adair mounted a cross-appeal, he failed on the cross-appeal. Having asked for a new trial would not have improved the chances of succeeding on the cross-appeal.
(iv) The Assessment Officer erred by misapprehending Mr. Couper’s interest in retaining Mr. Geoff Adair and John Adair together as trial counsel. As noted above, whatever Mr. Couper’s initial inclination might have been, he signed an agreement to retain Mr. John Adair which made clear that John Adair would have day to day carriage of the matter.
(v) The Assessment Officer misapprehended Mr. Couper’s position on the desire to bring a motion for summary judgement. As noted above, there are many reasons for refusing to bring a motion for summary judgement. Mr. Couper was aware that no motion was being brought and nevertheless continued to work with Mr. Adair.
D. No Reasonable Apprehension of Bias
[83] Mr. Couper’s third argument for refusing to confirm the certificate of assessment is that when the lack of jurisdiction, procedural unfairness and misapprehension of evidence are considered cumulatively, the Assessment Officer’s conduct creates a reasonable apprehension of bias.
[84] The test for reasonable apprehension of bias was summarized by the Supreme Court of Canada in Committee for Justice and Liberty et al. v. National Energy Board 1976 2 (SCC), [1978] 1 S.C.R. 369 at page 394 as follows:
“… The apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. In the words of the Court of Appeal, the test is “what would an informed person, viewing the matter realistically and practically - and having thought the matter through- conclude.”
[85] As noted above, I have rejected Mr. Couper’s submissions on lack of jurisdiction, procedural unfairness and misapprehension of evidence. As a result of that alone, Mr. Couper’s argument on reasonable apprehension of bias fails.
[86] On my review of the record, the Assessment Officer proceeded in a fair, unbiased fashion. The Assessment Officer raised arguments about his own jurisdiction and ensured that Mr. Couper was content to proceed in light of those issues. He gave Mr. Couper the opportunity to adjourn the hearing to allow him more time to deal with the alleged late filing of Mr. Adair’s responding materials. He made several adjustments to Mr. Adair’s accounts in favour of Mr. Couper including downward adjustments of hourly rates and downward adjustments in the amount of time for which Mr. Adair was allowed to bill during trial. By way of example, the Assessment Officer concluded that Mr. Adair should not be permitted to bill for more than 10 hours per day at trial even though he docketed more than 10 hours per day. The practical reality is that a trial of this nature, fought as aggressively as it was would easily require trial counsel to work more than 10 hours a day.
[87] Although the Assessment Officer made a number of findings against Mr. Couper those findings were all grounded in sound reasoning.
[88] For the foregoing reasons I dismiss Mr. Couper’s motion and confirm the Report and Certificate of the Assessment Officer dated March 11, 2019.
Costs
[89] The respondent has been successful on the hearing and is entitled to costs. It claims costs of $6,749.49 on a partial indemnity scale, plus disbursements of $1,589.41.
[90] Mr. Couper, although self-represented, claims costs of $11,300 (calculated at $50 an hour) and $22,600 (calculated at $100 per hour) plus disbursements.
[91] When compared to Mr. Couper’s costs, those of the respondent are not unreasonable. The respondent was, however, represented by a lawyer from its own firm (more properly its successor firm). It was therefore a self-represented litigant. When dealing with cost claims made by self-represented litigants, courts must be conscious of the fact that some of the time the lawyers incurred would have been time that a client would incur even if the client had retained a lawyer. Self-represented lawyers are not entitled to claim for the time that a client would have spent on the matter in any event: Fong v. Chan, 1999 2052 (ONCA) and Benarroch v. Fred Tayar & Associates P.C., 2019 ONCA 228.
[92] I have reviewed the costs outline of the respondents. Some of the work done on the file was done by John Adair. This included some correspondence and some work on the preparation of the motion record, factum, and book of authorities. In both cases counsel at the hearing, Mr. Katz, also recorded a similar number of hours to those recorded by Mr. Adair. In the circumstances Mr. Adair’s involvement is more like that of a client than that of a lawyer. As a result, I have disallowed Mr. Adair’s time and fix the respondents cost at $5,178.23 including HST plus disbursements of $1,589.41 for a total of $6,767.64.
Koehnen J.
Released: August 29, 2019
COURT FILE NO.: CV-16-559630
DATE: 20190829
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Mark Couper
Applicant
– and –
Adair Barristers LLP
Respondent
REASONS FOR JUDGMENT
Koehnen J.
Released: August 29, 2019