COURT FILE NO.: FC-19-85
DATE: 2020/09/16
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Sidney Paul Lechner, Applicant
AND
Janet Kathleen Lechner, Respondent
BEFORE: Justice Engelking
COUNSEL: Colin McCorriston, for the Applicant
Andrew McMurray, for the Respondent
HEARD: September 16, 2020
ENDORSEMENT
[1] The Applicant, Mr. Lechner, has brought a motion seeking an order for the return of all remaining funds advanced by him to be applied to Ms. Lechner’s legal costs, being held in trust by Ms. Lechner’s counsel, Mr. Andrew McMurray, as well as an order for a copy of Mr. McMurray’s account(s) paid from the advance and the time docket made in support thereof to be provided to Mr. Lechner.
[2] Mr. McMurray has brought a motion to be removed as Solicitor of Record for Ms. Lechner. Mr. Gary Blaney has appeared on his behalf. Mr. Blaney, on behalf of Mr. McMurray, does not oppose the request for the return of any remaining funds from those advanced, but states that Mr. McMurray is not in a position to provide his accounts to Mr. Lechner on the basis that he would be in breach of solicitor/client confidentiality.
[3] A brief synopsis of the facts is that on January 15, 2020, Justice MacEachern granted an order that a) recognized Ms. Lechner as a special party as defined in Rule 2(1) of the Family Law Rules and appointed her sister, Ms. Dawn Marie Wendrowich as Ms. Lechner’s litigation guardian, and b) required Mr. Lechner to pay $15,000 to Mr. McMurray in trust for the funds to be applied against Ms. Lechner’s legal services. Justice MacEachern’s temporary order provided further: “Upon payment of the funds, Sidney Paul Lechner shall receive a credit of $15,000.00 to be used against any equalization payment, retroactive spousal support, or ongoing spousal support owing to Janet Kathleen Lechner.” It was thus clear from Justice MacEachern’s order that the sum of $15,000 was repayable to Mr. Lechner, most likely as a credit once his legal obligations had been established.
[4] On April 7, 2020, however, Ms. Lechner sadly passed away, which essentially brought the parties’ litigation to an end as all claim therein were in personam. To Mr. Lechner’s knowledge, there are no outstanding claims.
[5] On April 14, 2020, Mr. McCorriston wrote to Mr. McMurray requesting an accounting of the application of the $15,000 advanced and the return of any remaining amount. On April 20, 2020, Mr. McMurray replied, advising that it would be a breach of his duty of confidentiality owed to Ms. Lechner to provide a copy of his account or the return of the funds to Mr. Lechner until he was instructed to do so by Ms. Lechner’s duly authorized representative. Mr. McMurray copied Ms. Wendrowich on his response to Mr. McCorriston.
[6] Mr. McMurray has filed an affidavit in support of his cross-motion seeking an order removing him as counsel of record for Ms. Lechner and her litigation guardian, Ms. Wendrowich, on the basis that he no longer has an instructing client. I will not get into the contents of Mr. McMurray’s affidavit except to say in it, he confirms that he forwarded a copy of Mr. Lechner’s motion materials to Ms. Wendrowich and advised her of the September 16, 2020 return date of the motion. She was also served on August 31, 2020 with Mr. McMurray’s motion, also returnable today. Ms. Wendrowich did not appear on the motion today, nor did she have anyone else appear on her behalf.
[7] To Mr. Lechner’s knowledge, Ms. Lechner died without a Will. He is unaware if anyone has applied to be appointed as the Administrator of her Estate.
[8] Mr. Lechner primarily relies on Rule 58 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, which is in respect of Assessment of Costs. Rule 58.04 provides:
ASSESSMENT AT INSTANCE OF PARTY LIABLE
By Obtaining Appointment and Serving Notice
58.04 (1) Where a party entitled to costs fails or refuses to file or serve a bill of costs for assessment within a reasonable time, any party liable to pay the costs may obtain a notice to deliver a bill of costs for assessment (Form 58B) from the appropriate assessment officer. (Emphasis added).
58.04 (2) the notice shall be served on every party interested in the assessment at least twenty-one days before the date fixed for the assessment.
Delivery of Bill of Costs
58.04 (3) On being served with the notice, the person required to deliver a bill of costs shall file and serve a copy of the bill on every party interested in the assessment at least seven days before the date fixed for the assessment.
[9] Rule 58.04 appears to support the proposition that a party liable to pay costs is entitled to see what they are, and in respect of assessments at least, potentially dispute them.
[10] Mr. Lechner also relies on Rules 24 and 25 of the Family Law Rules, O. Reg. 114/99, as am. In determining a proper costs order, pursuant to Rule 24(12) a court is entitled to consider, inter alia, the reasonableness and proportionality of the time spent by each party on the case and any legal fees, including the number of lawyers and their rates. Pursuant to Rule 24(12.1) any claims for costs respecting fees and expenses “shall be supported by documentation satisfactory to the court.”
[11] In his Notice of Motion, Mr. Lechner also relies upon “equitable principles”, but he did not elaborate on same in submissions. However, it seems only fair to me that as the party liable for the costs of Ms. Lechner’s legal services, Mr. Lechner would be entitled to see what they are, in so far as they were applied against the $15,000 advance he made. Were the court hearing submissions on costs after an argued step in the litigation, certainly both the court and the opposing party would be entitled to see a bill of costs to determine what is reasonably claimed.
[12] There shall, therefore, be an order requiring Mr. McMurray to provide Mr. Lechner an accounting of the application of the $15,000 advance and an order providing that any surplus be returned to him as per the draft order filed by Mr. McCorriston. If Mr. McMurray has any concern that the contents of a particular entry on his bill of costs would constitute a breach of his duty of confidentiality to Ms. Lechner and her litigation guardian, such entry may be redacted as to action, but with time spent and cost thereof remaining.
[13] There shall also be an order removing Mr. McMurray as counsel of record for Ms. Lechner and her litigation guardian, Ms. Wendrowich as per the draft order filed by Mr. McMurray.
[14] Both orders are to be served on Ms. Wendrowich forthwith.
Justice Engelking
Date: September 16, 2020
COURT FILE NO.: FC-19-85
DATE: 2020/09/16
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Sidney Paul Lechner, Applicant
AND
Janet Kathleen Lechner, Respondent
BEFORE: Justice Engelking
COUNSEL: Colin McCorriston, for the Applicant
Andrew McMurray, for the Respondent
ENDORSEMENT
Engelking J.
Released: September 16, 2020