Court File and Parties

2020 ONSC 7808

COURT FILE NO.: CV-20-00644886

DATE: 20201214

ONTARIO SUPERIOR COURT OF JUSTICE

RE:

MATTHEW R. HARRIS PROFESSIONAL CORPORATION, Plaintiff

-and-

DOUGLAS CAREY et al., Defendants

BEFORE: F.L. Myers J.

COUNSEL: Matthew Harris and Yonatan Lipetz, for the Plaintiff Spencer Jones, for the Defendants

READ: December 14, 2020

ENDORSEMENT

[1] The plaintiff law firm moves for leave nunc pro tunc to commence this action for its fees after the defendant clients had already commenced an assessment of its accounts under the Solicitors Act, RSO 1990, c S.15,

[2] Leave is denied. It is the legislative policy of the Province that clients of lawyers be entitled to assess their lawyers’ accounts. Part of the obligation that goes with the privilege of being a licensed lawyer in Ontario is that clients are entitled to question and have an independent assessment officer review their lawyers’ accounts under the statutory process.

[3] Proceedings in the Assessment Office remain suspended due to the pandemic despite the resumption of operations elsewhere in the court several months ago. Even prior to the pandemic, the lack of availability of timely hearing dates for assessments has been noticed.

[4] The answer to issues surrounding the operation of the Assessment Office is not to bring assessments to court in the guise of an action on the lawyers’ fees. That just masks the issues and misallocates the burden of undertaking these proceedings to the court when the Legislature wishes these important matters to be dealt with by assessment.

[5] Subsection 6 (4) of the Solicitors Act says:

(4) The solicitor shall not commence or prosecute any action in respect of the matters referred pending the reference without leave of the court or a judge.

[6] In Teplitsky, Colson LLP v. 2169252 Ontario Inc., 2019 ONSC 7026, Perell J. discussed the purpose of this provision:

The obvious public policy purpose of section 6(4) of the Solicitors Act is to discourage actions about the provision of legal services and to encourage that disputes about legal fees be diverted into the assessment process. Assessments are intended to provide a speedy and inexpensive process for settling solicitors' accounts outside the realm of ordinary litigation. [Emphasis added.]

[7] The plaintiff argues that the case is not ripe for assessment because in the statement of defence the clients dispute the retainer. I do not read it that way. The clients do not deny that they hired the lawyer and know that they must pay reasonable fees incurred on their behalf. It is for the Assessment Officer to determine if the clients’ dispute is related to the quantum of fees or if it is a genuine dispute of the retainer. See: Teplitsky, at para. 62.

[8] The clients commenced an assessment proceeding. We are in a pandemic. Proceedings before the Assessment Office remain suspended. There is no indication of the likely duration of the suspension. In my view, that is not a basis to allow lawyers to just move the proceedings to the court without regard to the legislative policy supporting the assessment process.

[9] If lawyers and/or clients have concerns with the operations of the Assessment Office and whether it is meeting the goal of providing “speedy and inexpensive” proceedings, a civil proceeding before the court is not the forum for those questions.

F.L. Myers J.

Date: December 14, 2020