COURT FILE NO.: CV-18-593282
DATE: 20201130
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
ROSE DONATELLI-VENNERI, MICHAEL VENNERI,
PROFESSIONAL COUNSELLING SERVICES AND
COMPREHENSIVE HEALTH CARE INC.
Appellants
-and-
STERN LANDESMAN CLARK LLP
Respondents
BEFORE: F.L. Myers J.
APPEARANCES: Rose Donatelli-Venneri and Michael Venneri, in person for the appellants
Paul Stern, in person for the respondent
HEARD: November 27, 2020
Endorsement
The Appeal
[1] This is an appeal from an assessment of lawyers’ accounts pursuant to the Solicitors Act, RSO 1990, c S.15.
[2] After a three day hearing, the lawyers were completely successful before the assessment officer. The assessment officer gave very comprehensive oral reasons in approximately 90 pages of transcript.
[3] The appellants were ordered to pay the lawyers the sum of $41,541.79 plus costs of the assessment.
[4] For the reasons that follow, the appeal is dismissed.
The Standard or Review
[5] The standard of review is not controversial. In Rabbani v. Niagara (Regional Municipality), 2012 ONCA 280, the Court of Appeal reiterated:
[6] 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. The assessment officer’s decision was entitled to considerable deference absent such error. See Samuel Eng & Associates v. Ho (2009), ONCA 150.
[6] The assessment officer correctly set out the nine well-known factors from Cohen v Kealey & Blaney, (1985), 26 CPC (2d) 212 (Ont CA). Her findings on each factor were grounded in the evidence before her that she accepted. I see no error in the exercise of her discretion or of any of the kinds described above.
Adjournment
[7] The appeal hearing was scheduled on a peremptory basis pursuant to the order of C. Brown J. dated July 20, 2020. The appellants sought an adjournment before Kimmel J. on November 17, 2020 that was denied. At the outset of the hearing, the appellants resumed their request for an adjournment. After hearing argument, I denied the request and dictated oral reasons for doing so.
Procedural Background
[8] The law firm was retained by the clients to try to set aside a default judgment that had been granted by Walters J. in 2013.
[9] The default judgment arose in a lawsuit commenced by an insurance company ten years earlier in 2003. The insurance company claimed that the defendant Donatelli wrongfully held herself out to be a registered psychologist and purported to rendered psychological counselling services to insured patients for which the insurer was induced wrongfully to pay over $30,000.
[10] The appellant Michael Venneri is Ms. Donatelli's son and is a chiropractor. The insurer alleged that he was involved in assisting his mother’s impropriety.
[11] The appellants were also charged with criminal fraud as a result of the allegations.
[12] The criminal charges were withdrawn. The appellants commenced a counterclaim against the insurance company for millions of dollars for defamation and injury they suffered as a result of what they say were wrongful allegations made against them.
[13] The allegedly fraudulent services were performed from late 1999 to early 2001. The issues are over 20 years old.
[14] By order dated December 2, 2010, seven years into the litigation, MacPherson J. struck the clients’ pleadings due to their failure to pay eight outstanding cost awards and their continued failure to answer undertakings given on examinations for discovery.
[15] The Court of Appeal upheld the order of MacPherson J. striking the clients’ pleadings. Their application for leave to appeal to the Supreme Court of Canada was also dismissed.
[16] Once the clients’ pleadings were struck, the insurance company sought default judgment that was granted in 2013 as noted above. Several additional costs awards were made against the appellants after their pleadings were struck out.
[17] The clients then retained the law firm to move to set aside the default judgment. The motion was dismissed by Whiten J. by a decision dated July 20, 2017, reported at 2017 ONSC 4242.
[18] Whiten J. was quite critical of the clients’ conduct throughout.
[19] In his decision, Whiten J. also criticized an affidavit that the lawyers had submitted in the name of their articling student. Mr. Stern wrote to the judge and requested that he amend his decision to remove the student’s name. Mr. Stern took responsibility for the contents of the student’s affidavit and asked that the judge consider anonymizing the affidavit so as not to risk harming the student’s reputation. The insurance company did not oppose the request. Whiten J. agreed and amended his endorsement.
The Appellants’ Inconsistent Approaches
[20] The clients had a very inconsistent approach toward their argument of this appeal. On the one hand, they said that they are self represented litigants who relied completely on the lawyers’ experience to guide them in their quest to continue their litigation against the insurance company. However, they also argue that the lawyers did not do anything to justify their fees because the clients provided them with all of the documents, pleadings, factum, and materials that the lawyers needed. They assert clearly that they understood and provided the lawyer with the law, the facts, the strategy, and the practical considerations needed to win the motion. The things the lawyers did, such as following-up on their unpaid costs awards and unfulfilled undertakings that led to the default judgment being granted, the clients submit, were unnecessary in light of the material that they provided to the lawyer.
[21] The assessment officer noted the same inconsistency. She had before her the voluminous material submitted and had heard the testimony of Mr. Stern and Dr. Venneri. She found:
On the one hand they tried to present themselves as knowledgeable people in the law, to the point of preparing facta and various other legal documents, which really the solicitors could not use if they were to be responsible lawyers representing the clients in a very important litigation for the clients. But then on the other hand they would vociferously argue that they did not understand the process or the results of the litigation, and that the fault of that was not themselves, but the lawyers, i.e. the law firm whose accounts are subject to assessment, or perhaps the opposing counsel, or previous lawyers, not to mention the judges and the legal and justice systems.
[22] The clients also allege that they were not provided with material by the lawyers for the assessment. The assessment officer made findings to the contrary. She found that the lawyers had disclosed several volumes of material that were in evidence before her. However, the clients, by contrast,
…did not abide by the assessment officer's direction made at the preliminary hearing, on the July 23rd 2018 hearing, and even to date they did not provide to the law firm or to the assessments, any helpful supporting documents or even a list of any issues or concerns they have regarding the billing or services of the solicitor.
The Appellants’ Behaviour
[23] Ms. Donatelli was removed from the assessment hearing by the assessment officer twice. She told me that when she refused to leave the first time, the assessment officer had to call security officers to remove her from the room. She was allowed to return after being removed the first time. It appears that she may not have returned after the second time.
[24] During the hearing of the appeal, Dr. Venneri made submissions first. One of the arguments he made was that the assessment officer erred by mentioning in her decision the issue of the change in the reasons made by Whiten J. at the request of Mr. Stern. Dr. Venneri submitted that this was irrelevant because it had nothing to do with the fees billed by Mr. Stern. He submitted that the issue should not have been mentioned by the assessment officer at all.
[25] After approximately an hour of submissions, Dr. Venneri had begun to repeat himself so I questioned whether he had anything further to add. He asked for a moment to find a document on his computer and invited Ms. Donatelli to make her submissions while he looked.
[26] Ms. Donatelli advised me that she suffers from a disability that affects her ability to communicate and assimilate information. She commenced her submissions by telling me that she is a deeply religious person who holds the ten commandments as being written in stone. She continued that, to her, the Rules of Civil Procedure were also written in stone. She then commenced describing numerous technical procedural issues, like a wrong name in the title of proceeding on a single document that had been sent to her by the assessment office. She claimed that the lawyers were allowed to file documents without an affidavit of service. She said that the assessment office did not tell her about a change of address.
[27] None of her issues actually established any lack of notice or prejudice. She was at the hearing at the appropriate time and place, with the appropriate title of proceedings before the assessment officer. The assessment officer listed the affidavits of service filed by the lawyers in her reasons.
[28] Ms. Donatelli drew from her procedural concerns that the assessment officer was biased against her. She objected especially to being corrected by the assessment officer when she called Mr. Stern a liar while cross-examining him.
[29] During Ms. Donatelli’s submissions, I tried to keep her focused on allegations of errors made by the assessment officer. She then started making submissions about Mr. Stern violating the Rules of Civil Procedure and the Rules of Ethics by contacting Whiten J. to ask for the student’s name to be removed from the decision.
[30] In an effort to keep Ms. Donatelli focused, I reminded her that Dr. Venneri had just finished arguing that the assessment officer erred by even mentioning the issue in her reasons when it was irrelevant to the assessment of the lawyers’ fees. Ms. Donatelli became agitated. She was convinced that this issue displayed a serious ethical lapse by Mr. Stern and she persisted with her allegations against him. She was not open to direction to focus her submissions on errors made by the assessment officer.
[31] As the appeal was being heard by video conference and telephone, I instructed the Registrar to mute Ms. Donatelli’s line. I explained to her that I had read the emails among counsel and the judge’s office. I could see no ethical lapse but, rather, a principal taking responsibility for his own acts who was seeking to protect his student from harm. To me that reflected integrity. Whiten J. saw no ethical lapse as he agreed with the unopposed request to change his reasons.
[32] I instructed Ms. Donatelli that she was not to continue arguing this issue. It was not an issue for the appeal and she was to move on to advise me of any errors in the assessment officer’s reasons on which she relied. Despite my instruction, she continued with submissions about Mr. Stern’s approach to the judge in an increasingly aggressive and heated manner. I had to instruct the Registrar to mute her line again and end her submissions.
[33] I then returned to Dr. Venneri who had been looking for a particular document while Ms. Donatelli was making her submissions. He immediately took up the cudgel for his mother with a submission about Mr. Stern’s contact with the judge – the issue he had previously argued was so irrelevant that the mere mention of it in the assessment officer’s chronology was a reversible error.
[34] At that point, I ended the appellants’ submissions. I had read their factums and had heard all that Dr. Venneri had to say until he started repeating his submissions. It was apparent that Ms. Donatelli was not able to distinguish relevant from irrelevant issues and, more significantly, she was not able or willing to respond to direction from the bench.
[35] I understand that submissions do not always follow a standard path. Relevant things can be said after a recitation of legally irrelevant matters. What might appear legally irrelevant to me may have had a significant affect on the party. Therefore, I am flexible with self represented litigants on issues of relevancy during submissions. I was flexible with Ms. Donatelli especially given her indication that she suffers from a disability. But everyone understands that there are limited resources in court and each litigant has to share his or her time with others waiting in the queue. The court cannot hear mere repetition or abusive allegations of serious wrongdoing without any factual or legal support.
[36] The court has a responsibility to control its process. It was not appropriate for Mr. Stern to be subjected to abuse that was irrelevant to the proceeding. Once the appellants’ submissions were not longer helpful, it was time to move on.
The Grounds of Appeal
[37] Many of the grounds of appeal in the parties’ factums deal with alleged errors made in prior proceedings that have nothing to do with the appeal of the assessment.
[38] The appellants did not obtain a transcript of the hearing before the assessment officer. So complaints about misapprehension of evidence could not be investigated beyond reading the assessment officer’s reasons and understanding the evidence on which she relied. The bulk of the appellants’ complaints about evidence turn on the assessment officer’s acceptance of Mr. Stern’s testimony to which they object. The assessment officer addressed credibility and accepted Mr. Stern’s evidence in its entirety. She gave clear reasons for accepting the evidence of Mr. Stern over the evidence of Dr. Venneri. The assessment officer did at one point find that both appellants lacked credibility. As Ms. Donatelli did not give evidence, the finding was without effect.
[39] Dr. Venneri complains that he never received an invoice for a $21,000 bill allowed the assessment officer. However, she did not allow or assess an account for $21,000. Rather, that was the costs award made at the end of the hearing. Mr. Stern delivered a Bill of Costs supported by three affidavits of service on the appellants as discussed at pp. 95 and 96 of the transcript of the assessment officer’s ruling.
[40] Dr. Venneri submits that the assessment officer erred in finding that Mr. Stern was experienced and knowledgeable. That is a finding of fact amply supported by the evidence that the assessment officer accepted from the lawyer.
[41] Dr. Venneri argued that the assessment officer erred in failing to find that their documents were all that Mr. Stern needed to argue the motion to set aside the default judgment. Again, there was evidence properly accepted by the assessment officer including voluminous files before her. There is no error in principle or law.
[42] Dr. Venneri argued that the written retainer agreement between the parties capped the lawyers’ fees at the amount of the deposit paid by way of retainer. It is clear from the wording of the agreement recited by the assessment officer that the agreement plainly and clearly said the opposite.
[43] Mr. Venneri says that Mr. Stern lied to the clients by asking them to find out for him what a particular association of psychologists was, when, according to Dr. Venneri, Mr Stern had acted for someone previously who had some involvement with the association. The lawyer had the clients chase down documents that he did not need.
[44] I fail to see how that allegation, even if correct, amounts to a basis to challenge his time or fees. Moreover, without a transcript of the hearing. I cannot see the evidence that was before the assessment officer to decide on whether there was a misapprehension as Dr. Venneri submits.
[45] Dr. Venneri argues that the assessment officer erred in considering the clients’ ability to pay. The clients produced tax documents to show that they had limited incomes. He said that the assessment officer relied upon their ownership of properties without considering whether they might have been encumbered.
[46] At p. 89 of her oral reasons, the assessment officer held:
Finally, as far as the clients' ability to pay, there was in evidence, and I mentioned this, the Canada Revenue Agency's 2018 personal tax assessment of both Mrs. Donatelli and Mr. Venneri. And for Mrs. Donatelli it was showing seven thousand for 2018, and about 53 thousand for Mr. Venneri. And I agree with Mr. Stern in his rebuttal that showing this to show their lack of ability to pay was, well I would say disingenuous. Mr. Stern, I believe, stated that it was somewhat misleading to provide support for their claims that their ability to pay was limited.
Meanwhile, Mr. Stern was, in his cross-examination able to obtain confirmation from Mr. Venneri that he was far from being impecunious, but that he and his mother had in fact owned quite a bit of property that were owned either personally or by their operating companies, which I accept, Mr. Venneri himself confirmed that they owned a number of properties in Ontario, and those kind of assets can be very valuable. And that goes to show the lack of support for the clients' claim that they had no ability to pay. So that was not really an issue for me to really be concerned with in this sense. I found that the clients had an ability to pay. The fact that they were continuing the litigation shows that they are able to pay litigation costs, including all the costs that were already owing, they have paid all those monies, probably in excess of a hundred thousand already. That is not to mention the six lawyers prior to these lawyers that they had hired. So, I think the facts evidence clearly, their ability to pay.
[47] I can discern no error in principle nor palpable and overriding error of fact in these findings.
[48] The appellants challenge the fairness of the hearing. Ms. Donatelli argued that the lawyers’ documents had not been provided to her in hard copy and they were provided to Dr. Venneri less than 60 days before the hearing. As noted above, the assessment officer dealt with the production issue on the evidence that was before her. Moreover, the assessment was adjourned from September to November at the appellants’ request to give them extra time to prepare.
[49] The appellants submit that they were not able to present their case. It is true that Ms. Donatelli was excluded due to her behaviour. But Dr. Venneri cross-examined Mr. Stern and gave his own evidence. As discussed above, the assessment officer found that they had not properly produced documents as required by a pre-hearing order. I do not find any unfairness in the process of this assessment.
[50] Ms. Donatelli alleges that the assessment officer was biased. There is no evidence nor any objective basis to contemplate drawing this conclusion.
[51] In light of the importance of assisting self represented litigants understand the process, I add one point that was not raised by the appellants. While I am not to act as their lawyer, I had a concern that might not just be a ground of appeal, but also could impact the administration of justice more generally. When I read the decision of Whiten J. refusing to set aside the default judgment, I wondered why the motion had been brought. It was as close to stillborn as any motion that I have encountered. The Court of Appeal had already upheld the striking of the clients’ pleadings due to their repeated misconduct. I wondered if the lawyers ought to have told the clients that the motion had a low chance of success to save them from incurring fees needlessly.
[52] However, on reading the materials, I discovered that the lawyers had done exactly that. They told the clients in writing that the outlook on the motion was “bleak”. They urged the clients to settle to avoid incurring further costs in writing more than once. The clients instructed that they were not interested in settlement and they wanted the lawyers to carry on with the motion. The lawyers fulfilled their duties to the clients and to the administration of justice.
[53] None of the grounds of appeal raised by the appellants meets the standard of review applicable on this appeal. Therefore, the appeal is dismissed.
[54] As they are self-represented, the lawyers may submit up to five pages of evidence (including exhibits) solely concerning their costs and five pages of costs submissions. In addition, they shall include a Costs Outline and copies of any offers to settle on which they rely. The lawyers’ materials are due by December 7, 2020. The appellants may respond with up to five pages of evidence (including exhibits) solely concerning their costs and five pages of costs submissions. In addition, they shall include a Costs Outline and copies of any offers to settle on which they rely. The appellants’ materials are due by December 14, 2020.
[55] Page limits are to be observed. The court will not accept materials that exceed the page limits.
[56] All costs material; shall by submitted in searchable PDF format attached to an email to my assistant therese.navrotski@ontario.ca. No case law or statutory material is to be provided. Rather, references to case law or statutory material, if any, shall be made by way of hyperlinks embedded in the parties’ submissions.
_______________________________ F.L. Myers J.
Date: November 30, 2020