COURT FILE NO.: CV-18-5080

DATE: 2019 12 18

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Gluckstein Personal Injury Lawyers P.C., Applicant

AND:

Hui Yu, Respondent

BEFORE: Fragomeni J.

COUNSEL: Jonah Waxman, counsel for the Applicant

Ashu Ismail, counsel for the Respondent

HEARD: November 29, 2019, at Brampton

ENDORSEMENT

Nature of the Motion

[1] The moving party on this motion is Hui Yu (Yu). Yu seeks an order for the following:

(1) Production of his entire file from Gluckstein Personal Injury Lawyers P.C. (Gluckstein).

(2) Production of his daughter, Bei Er Yu’s, file from Gluckstein.

[2] Yu brings this motion in the context of a long motion regarding the sufficiency of Gluckstein’s retainer and appropriate fees. This long motion is scheduled to be heard on September 16, 2020.

[3] Yu sets out the following grounds in support of his motion:

(1) Yu seeks a copy of his daughter’s (the Minor in the action) file because he believes that there was considerable overlap in handling the two files and he is concerned that the family is being double billed.

(2) Yu needs to see his daughter’s complete file because Gluckstein charged an extra $25,000.00 fee on her file. The daughter’s settlement was approved without Gluckstein explaining to or advising Yu that a lawyer cannot collect such a fee, unless a special circumstance exists to warrant an extra payment.

(3) Yu has requested the complete files in order to assess these concerns. However, Gluckstein refuses to produce them.

Gluckstein’s Position

[4] Gluckstein sets out the following factors in support of its opposition to Yu’s request:

(1) The request is unreasonable and is disproportionate to what is required for the Assessment Officer to determine the value of the legal services provided to Yu for his and his daughter’s claims.

(2) In March 2019 Gluckstein produced the documentation that he intends to rely on to prove his account.

(3) The Minor’s file was settled on April 7, 2016. It was approved by Sanderson J. This settlement has never been disputed and it has now been about 3 ½ years since the settlement was approved.

(4) Nothing in the Minor’s file has any relevance to the legal services provided to Yu for the following reasons:

a. Separate retainer agreements were signed by Yu and the Minor’s litigation guardian.

b. Separate files were maintained, including distinct medical reports.

c. Separate and distinct dockets were maintained on both files.

d. There is no duplication with respect to the docketed time on Yu’s file and the Minor’s file.

(5) The request for the Minor’s file is an abuse of process for the following reasons:

a. No Order for Assessment has been obtained with respect to the Minor.

b. The time for appealing the Minor’s settlement is long expired.

c. The Minor’s settlement was obtained with the Litigation Guardian’s consent.

(6) Yu’s motion is an abuse of process

(7) Yu ought to have obtained this information prior to settling his file. If Yu had sufficient documents to settle his case, it is reasonable to believe they have all of the documents they need for the Assessment.

Analysis and Conclusion

[5] On April 30, 2019 Yu served a notice of long motion, now scheduled to be heard on September 16, 2020, and included the following grounds in support of the motion:

(1) Yu and his family understood that the additional $25,000 charged, the fee in excess of 20% and the disbursements paid, when the Minor’s file settled, included all fees and disbursements incurred for the entire family to that point.

(2) Yu has requested copies of the complete files in order to determine the overlap and assess the contribution the applicant law firm made to his case beyond the $25,000 fee and fee in excess of 20% charged as well as approximately $26,743.90 already collected by the applicant law firm in this matter for disbursements.

[6] Yu’s counsel sent an email dated April 15, 2019 to Edwin G. Upenieks, counsel for Gluckstein, setting out the following:

During the hearing before Officer Mulima, you represented that the YU retainer, now in dispute, was signed at the same time as that of the daughter’s retainer.

Can you please provide a copy of the daughter’s retainer. I am advised that the family never received a copy of their daughter’s retainer, after it was executed.

Also, can you please provide the complete files for Yu and his daughter? As you know, the family believes that most of the work completed at your client’s firm was completed on the daughter’s file and not the Yu file.

In order to prepare for the notice of motion (or notice of application), we require these documents.

We look forward to your anticipated cooperation.

[7] On October 11, 2019 a further email was sent to Gluckstein’s counsel reiterating the need for the complete files.

[8] At para. 20 of his factum Yu sets out the following:

During the lawyers’ handling of the family’s case, the family was unaware that the respondent was being charged pursuant to a separate retainer. The retainer provided by the lawyer, did not state that it was a contingency fee retainer, it was not signed by any lawyer, not explained by any lawyer, not witnessed, not approved by a court, no copy was provided, and the document did not state that the lawyer could only collect costs upon court approval. The family was never consulted on the high cost of mediation, the need for an engineering report, or any other high cost report.

[9] Yu points to the following jurisprudence in support of his position: Price v. Sonsini (2002), 2002 CanLII 41996 (ON CA), 60 O.R. (3d) 257 (C.A.), at para. 19:

Public confidence in the administration of justice requires the court to intervene where necessary to protect the client's right to a fair procedure for the assessment of a solicitor's bill. As a general matter, if a client objects to a solicitor's account, the solicitor should facilitate the assessment process, rather than frustrating the process. See Orkin, The Law of Costs, 2nd ed., looseleaf (Aurora, Ont.: Canada Law Book, 2001), at p. 3-13. In my view, the courts should interpret legislation and procedural rules relating to the assessment of solicitors' accounts in a similar spirit. As Orkin argues, "if the courts permit lawyers to avoid the scrutiny of their accounts for fairness and reasonableness, the administration of justice will be brought into disrepute." The court has an inherent jurisdiction to control the conduct of solicitors and its own procedures. This inherent jurisdiction may be applied to ensure that a client's request for an assessment is dealt with fairly and equitably despite procedural gaps or irregularities. See Krigstin v. Samuel (1982), 31 C.P.C. 41 (Ont. H.C.J.) and Minkarious v. Abraham, Duggan (1995), 1995 CanLII 7253 (ON SC), 27 O.R. (3d) 26, 129 D.L.R. (4th) 311 (Gen. Div.) at pp. 55-57 O.R. See also Re Solicitor, 1972 CanLII 655 (ON SC), [1972] 2 O.R. 571 (H.C.J.) at p. 574, where the court held that a solicitor's reversal of position with respect to the procedure to be followed on an assessment should be approached cautiously.

Ann Marie Clancey et al v William Kelly et al, 2015 ONSC 6873, at paras. 29 and 30:

Accordingly, if requested, the lawyer will deliver all contents of his file for time periods from and including the account dated June 2, 2010 up to and including the account dated November 20, 2012. If the lawyer wishes to make photocopies, such copies will be made by him at no cost to the clients. The clients have paid for this work and will require the file contents when preparing and making costs submissions on the action and for the bringing of an appeal if necessary.

Further, if requested by the clients, the lawyer shall deliver to the clients the contents of his file for the time periods from and including his November 27, 2012 account to and including his final account dated October 31, 2014. The lawyer may make photocopies for himself. The lawyer shall prepare an invoice for any such photocopies, but the liability for payment of the photocopies will be a matter to be determined by the assessment officer as part of his assessments of the lawyer’s accounts for those time periods.

Zeitoun v. Falconeri, 2016 ONSC 5360, at paras. 45 and 46:

[45] Aggio v. Rosenberg was a decision of our recently retired colleague Master Sandler which can also be found in the first series of Carswell’s Practice Cases at 24 C.P.R. 7. Because it is the sole case relied upon in opposition to this issue, I am reproducing a substantial portion of Master Sandler’s decision in an action brought by way of a specially endorsed writ by the client to recover portions of the lawyer’s file as they were required for a pending trial.:

13 When the motion came before me on March 27th, 1981, I heard some of the argument, and it appeared that the only documents that the defendant had in its possession was a certain file marked Ex. 6 on the cross-examination of the solicitor who swore the affidavit of merits, and counsel for the plaintiff argued that the plaintiff was only seeking and was entitled to those particular documents in Ex. 6 which the law as set out in Cordery, Law Relating to Solicitors (6th ed.) at pp. 118-119, stated belong to a client, and it appeared, because I was going to apply this law, that what was required was to examine each document in Ex. 6, to ascertain whether it fell within a client category or a solicitor category, as set out on p. 119, supra, and thus both counsel agreed to an adjournment for the purpose of themselves examining Ex. 6 and making the appropriate selection into client and solicitor categories, with any dispute to be decided by this Court. ….

15 As to what the law in Ontario is, I adopt the law as set out in Cordery, supra, as follows:

"D. AUTHORITY OVER DOCUMENTS ON TERMINATION OF RETAINER

Documents in existence before the retainer commences and sent to the solicitor by the client or by a third party during the currency of the retainer present no difficulty since their ownership must be readily apparent. The solicitor holds them as agent for and on behalf of the client or third party, and on the termination of the retainer must dispose of them (subject to any lien he may have for unpaid costs - see pp. 416 et seq., post) as the client or third party may direct.

Documents which only come into existence during the currency of the retainer and for the purpose of business transacted by the solicitor pursuant to the retainer, fall into four broad categories:

(i) Documents prepared by the solicitor for the benefit of the client and which may be said to have been paid for the client, belong to the client.

(ii) Documents prepared by the solicitor for his own benefit or protection, the preparation of which is not regarded as an item chargeable against the client, belong to the solicitor.

(iii) Documents sent by the client to the solicitor during the course of the retainer, the property in which was intended at the date of despatch to pass from the client to the solicitor, e.g., letters, belong to the solicitor.

(iv) Documents prepared by a third party during the course of the retainer and sent to the solicitor (other than at the solicitor's expense), e.g., letters, belong to the client."

[46] Master Sandler went on to provide this guidance:

16 From these broad categories, specific propositions are then laid down at p. 119 as follows:

"Cases, instructions and briefs prepared by the solicitor and delivered to counsel belong to the client within category (i).

Drafts and copies made by the solicitor of deeds or other documents in non-contentious business belong to the client within category (i).

Copies made by the solicitor of letters received by him, if paid for by the client belong to the client under category (i).

Copies made by the solicitor of letters received by him, if not paid for by the client belong to the solicitor under category (ii).

Copies made by the solicitor of letters written by him to third parties, if contained in the client's case file and used for the purpose of the client's business belong to the client under category (i).

Copies made by the solicitor of letters written by him to third parties, if contained only in a filing system of all letters written in the solicitor's office belong to the solicitor, under category (ii).

Entries of attendance, tape recordings of conversations, etc., inter-office memoranda partner to partner, partner to staff, entries in diaries, office journals and books of account belong to the solicitor under category (ii).

Letters and authorities and 'instructions written or given' by the client to his solicitors belong to the solicitor under category (iii).

Letters received by the solicitor from third parties belong to the client under category (iv).

Vouchers for disbursements made by the solicitor on behalf of his client belong to the client under category (iv)."

Nanaksar v. Singh, 2017 ONSC 2511, at para. 12:

In any event, I am of the view that the Dunsmore Wearing file should be disclosed. In an assessment hearing, the assessment officer will review the entire file in assessing whether the costs are reasonable. As a result, the entire file would be available to any party involved in the assessment proceeding. The outcome should be no different here.

[10] In the case at bar the Minor’s case has been settled and the fees associated with that claim have been paid. As Gluckstein readily acknowledges, the Minor’s file was separate and distinct from Yu’s file. In those circumstances, then, and in accordance with the cases filed by Yu, this file belongs to Yu. The argument by Gluckstein that it should not be produced is grounded on the fact that the file is being requested within the context of an assessment of Yu’s file. As such, it is an abuse of process. I cannot accept that position.

[11] Gluckstein is obligated on request to provide the complete file of the Minor. Yu is entitled to have it and an order will be made to disclose it.

[12] Further, it is not up to Gluckstein to determine relevancy. Upon receipt of the complete file of the Minor it may very well be that there is no relevance to the Yu assessment. On the other hand it will be Yu’s review of the file that may potentially uncover relevant documents. Unless he has the complete file, he cannot make that determination.

[13] I am also satisfied that Gluckstein ought to provide Yu’s complete file. Yu has raised concerns about Gluckstein’s accounts and retainer agreements and ultimately the fees and disbursements charged on the Yu file and the Minor’s file. Yu is entitled to see the complete file. It has relevance to the September 16, 2020 motion and assessment of fees.

[14] Order to issue as follows:

1. Gluckstein shall provide to Yu the entire file relating to Yu.

2. Gluckstein shall provide to Yu the entire file relating to his daughter, Bei Er Yu.

3. Counsel shall set out a timetable relating to the September 16, 2020 motion.

4. In the event that the parties are unable to resolve the issue of costs of the motion before me they shall file written submissions on costs within 20 days.

Fragomeni J.

Date: December 18, 2019