COURT FILE NO.: CV-19-00079247
DATE: April 6, 2021
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Lamoureux and Vice & Hunter LLP
BETWEEN: Pierre Lamoureux, Angele Lamoureux-Menard and The Estate of Maurice Lamoureux, Applicants (Responding parties in the Motion) and Vice & Hunter LLP and Jean-Francois Lalonde, Respondents (Moving parties in the Motion)
BEFORE: Honourable Mr Justice Martin James
COUNSEL: Christopher A. Moore for the Applicants/Responding Party
William R. Hunter, Cheryl Letourneau, for the Respondents/Moving Parties
HEARD: December 8, 2020
REASONS FOR DECISION
James J
Facts
[1] The Respondent law firm, Vice & Hunter LLP (“V&H”), has brought a motion to vary an Order for Assessment of a series of legal accounts delivered to the Applicants over a 12-year period.
[2] The Applicants have brought a cross-motion for relief under sections 4 and 11 of the Solicitors Act and the inherent jurisdiction of the Court, that doesn’t need to be considered if the Order for Assessment is not varied.
[3] Maurice Lamoureux was a successful businessman and the controlling force of Maurice Lamoureux Ltée (“MLL”). When he died, he left an estate worth about 18 million dollars.
[4] Pierre Lamoureux (“Pierre”) is a son of Maurice Lamoureux and an executor of his estate. He is a solicitor and the person who provided instructions to V&H.
[5] Angèle Lamoureux-Menard (“Angèle”) is a daughter of Maurice Lamoureux and an executor of his estate.
[6] Charles Lamoureux (“Charles”) is a son of Maurice Lamoureux and was an executor of the estate initially but was later removed from that position.
[7] Andre Lamoureux is a son of Maurice Lamoureux and was involved in protracted and acrimonious litigation with the executors, particularly Pierre. He objected to the passing of accounts and contested the executor compensation claimed by Pierre. This dispute lasted approximately 8 years.
[8] In November 2006, V&H began acting for the estate trustees. There was a retainer agreement prepared and provided to Pierre but I’m not sure if it was actually signed. The services were to be provided on an hourly rate basis. Interim accounts would be provided from time to time.
[9] Generally, all the work was billed under one billing number although there were clearly different and separate issues that were dealt with at various points in time.
[10] At an early stage of the solicitor and client relationship Pierre wanted legal assistance from V&H to recover amounts alleged to have been improperly appropriated by Andre.
[11] In December 2006, V&H issued a statement of claim on Pierre’s behalf against Andre and certain corporations he controlled. This litigation came to an end in approximately 2010. The legal work for this matter appears to have been included in these legal accounts: # 7319, 7623, 8910, 10183, 10188, 11710, 13059 and 14677. I appreciate that the accounts may have included other miscellaneous activity as well. These accounts span the period from late 2006 to November 2011. For ease of reference I will refer to this group of accounts as the early accounts.
[12] By late 2011, the administration of the estate had progressed to the stage that the estate trustees thought that the estate accounts should be passed.
[13] Andre filed a Notice of Objection to the passing of the estate accounts. There was a Motion for Directions and this resulted in the issuance of a statement of claim and a statement of defence as the means for addressing the issues. Andre occupied the position of plaintiff.
[14] Although the defendants discussed the possibility of bringing a summary judgment motion for dismissal early on in the timeline of the lawsuit, it was not argued until 2018.
[15] While successful in defending against most of Andre’s claims, Pierre’s executor’s compensation was reduced. The judge was critical of the estate’s demand for releases from beneficiaries when distributions occurred.
[16] When it came time for party and party costs to be determined against Andre, V&H sought to include some of the legal services pre-dating the passing of accounts that triggered the Notice of Objection. The motion judge said that time spent prior to 2011 shouldn’t be included.
Position of Vice & Hunter
[17] Each account was billed on an hourly rate basis. V&H says that each account was intended to be a final account for the services provided during the billing period.
[18] Often the bills were discounted, typically about 20%, as a courtesy and for good client relations. The accumulated discounts amounted to nearly $50,000.
[19] The clients were kept well-informed and didn’t express any complaints.
[20] Often an account was preceded with a pre-bill that provided Pierre with an advance look at the next account before it was rendered and gave him the opportunity to comment, question or object.
[21] Since each of the accounts was intended to be a stand-alone, final invoice for work done during a billing period, Pierre cannot reach back in time for a review of accounts rendered and paid years before.
Position of Pierre Lamoureux
[22] The retainer agreement indicated that V&H would render interim accounts periodically.
[23] The ongoing documentation often referred to the accounts as interim accounts. He did not intend or understand the accounts to be final.
[24] It is logical that a client ought to be permitted to wait until a matter is completed before asking that all the accounts be assessed.
Discussion and Analysis
[25] Section 3 of the Solicitors Act provides:
3 Where the retainer of the solicitor is not disputed and there are no special circumstances, an order may be obtained on requisition from a local registrar of the Superior Court of Justice,
(a) by the client, for the delivery and assessment of the solicitor’s bill;
(b) by the client, for the assessment of a bill already delivered, within one month from its delivery;
(c) by the solicitor, for the assessment of a bill already delivered, at any time after the expiration of one month from its delivery, if no order for its assessment has been previously made.
[26] Section 4 of the Act provides:
4 (1) No such reference shall be directed upon an application made by the party chargeable with such bill after a verdict or judgment has been obtained, or after twelve months from the time such bill was delivered, sent or left as aforesaid, except under special circumstances to be proved to the satisfaction of the court or judge to whom the application for the reference is made.
(2) Where the reference is made under subsection (1), the court or judge, in making it, may give any special directions relative to its costs.
[27] Section 11 of the Act provides:
11 The payment of a bill does not preclude the court from referring it for assessment if the special circumstances of the case, in the opinion of the court, appear to require the assessment.
[28] Re Enterprise Rent-A-Car Company and Shapiro, Cohen, Andrews, Finlayson, 1998 CanLII 1043 (ON CA), [1998] O.J. No. 727 (C.A.) was an appeal of an order made on motion referring 16 bills delivered between December 1992 and June 1994 for assessment. The accounts in question related to an action for infringement of trade names and trademarks and included an unsuccessful motion for an interlocutory injunction. The last bill was rendered on June 6, 1994 and the application for an order for assessment was commenced on January 30, 1995. The Court categorized the bills into three categories:
A. Category A, consisting of bills rendered and paid more than 12 months before the client brought an application under the Act;
B. Category B, consisting of two bills rendered and paid within the 12-month period prior to the application; and
C. Category C, consisting of two bills rendered within the 12-month period prior to the application but which remained unpaid.
[29] The Court recognized that there is a gap in the legislation for accounts that have been rendered within 12 months but remain unpaid and on the authority of Fellows, McNeil v. Kansa Canadian Management Services Inc. (1997), 1997 CanLII 733 (ON CA), 34 O.R. (3d) 301 (C.A.), held that the court has inherent jurisdiction to order assessments.
[30] Respecting Category A accounts, the parties differed on whether each account was final or interim. Where a final account has been rendered and paid for more than 12 months, absent “circumstances amounting to fraud or gross misconduct”, the limitation periods under the Act constitute a bar to assessment (Fellowes, at p. 302). However, where all the bills prior to the last one are interim bills, the limitation period does not apply and all the bills may be assessed together with the final account if the preconditions of s. 3(b) are satisfied.
[31] The Court in the Enterprise Rent-A-Car case referred with approval to Lang, Michener, Cranston, Farquharson & Wright v. Newell, [1985] O.J. No. 272 (H.C.J.), where Craig J. said that where solicitors performed services for the client in relation to the same matter of a long period of time, all the bills must be considered as interim for the purpose of taxation.
[32] In Enterprise the Court said the distinction between interim and final bills was well entrenched in our law and should be retained. Factors such as whether the accounts related to one matter and whether they were marked as final ought to be considered. Also in Enterprise the Court referred in approving terms to the dissenting judgment of Anderson J.A. in Ray, Wolfe, Connell, Lightbody & Reynolds v. Henry Electric Ltd. (1982), 1982 CanLII 451 (BC CA), 137 D.L.R. (3d) 483 (B.C.C.A.) that work charged out at an hourly rate cannot convert interim bills into final bills for the purposes of taxation nor does the fact that they were paid without complaint…The practice of submitting periodic accounts should not prevent the adjustment of such bills after the completion of the litigation (p. 491).
[33] In Fellowes, supra, the client sought to have 509 accounts rendered in 119 files assessed on the basis that they were interim accounts. The timing of the accounts in relation to the timing of the request for assessment engaged the “special circumstances” provision of the Act. None being found in favour of the client, assessment was not permitted. The Court commented, however, the right to assess prior accounts just because the final account is being assessed is not absolute. In particular, the relationship between the parties and whether the billing arrangement depended only upon hourly rates and the hours spent, not the results achieved, indicate that prior accounts on a matter may not assessable simply because the final account is being assessed.
[34] V&H relies on the decision of our Court of Appeal in Davies, Ward and Beck v. Union Industries, Ltd., 2000 CanLII 5722 (ON CA), [2000] O.J. No. 1769. That case involved a requisition to assess twenty-nine accounts over a twelve-year period under two different file numbers. Fundamentally different services had been rendered including litigation, corporate services and bankruptcy proceedings. All but one of the accounts had been paid. The assessment order was set aside for two reasons. Firstly, the requisition submitted to Registrar to secure the order was defective and the Court held that the Registrar should have rejected it. Secondly, the Court held that there were “special circumstances,” one of which was that all but one of the accounts had been paid. The presence of special circumstances meant that an assessment order could not be obtained by way of a requisition delivered to the Registrar pursuant to s. 3(b) of the Solicitors Act. The appeal court overturned the findings of Campbell J. that the accounts were part of a continuum of legal services, there was an absence of evidence that the previous bills, although paid, were to be considered final and there was an onus on the solicitors to show the accounts were interim accounts.
[35] In Davies the Court drew on the decision in Rooney v. Jasinki, 1952 CanLII 115 (ON CA), [1952] O.R. 869 (C.A.) where it was said that “special circumstances” as it appears in s. 3 “include any circumstances of an exceptional nature affecting the matter of costs or the liability of a solicitor’s client which a judge, in the exercise of his discretion in each particular case, may consider to justify a taxation” (p. 875). The Court specifically declined to endorse the view of Molloy J. in Aird & Berlis v. Federchuk (1997), 1997 CanLII 12167 (ON SC), 34 O.R. (3d) 406 (Gen. Div.) that payment of an account was not a special circumstance which would preclude as assessment under s. 3(b) and held that the payment of accounts is a factor in deciding whether or not there are special circumstances and that the totality of circumstances must be considered. In Davies, special circumstances included the large number of bills, the lengthy period of time involved the nature of the services, the different file numbers and the payment of 28 out of 29 bills. The result was that the Registrar’s order was set aside and a direction made that the application for an order of assessment should be brought on notice to the solicitors with proper evidentiary support.
[36] Payment of solicitors’ accounts signifies an implied acceptance of its reasonableness; this is even more so when accounts are rendered on a regular basis and paid over the course of several years (see Tsigirlash v. Walker, 2016 ONSC 968 at para. 66).
[37] Price v. Sonsini, 2002 CanLII 41996 (ON CA), [2002] O.J. No. 2607 (C.A.) is a case where the solicitor took issue with the Registrar having granted an order for assessment five years before and after having suffered an adverse result at the assessment hearing. One of the issues was whether the first four of five accounts which were outside the 30 day limitation period in s. 3(b) of the Act were interim accounts which would allow them to be assessed along with the fifth and final account which was not outside the limitation period.
[38] In Bunt v. Assuras, 2003 CanLII 17952 (ON SC), [2003] O.J. No. 807 (S.C.J.) Cullity J. said that in determining whether an invoice was a final or interim bill, the intention of the parties is important and, where it is clear, should be decisive. Where the intention is not expressed or otherwise clear, the characterization of the bill as final or interim is one of fact and must depend upon the circumstances of each case. Where solicitors bill their clients strictly on the basis of an hourly rate applied to time spent, the case for treating earlier bills as final is stronger.
[39] In Maplecrete Group Ltd. V. Belsito, Baichoo & Ruso, 2015 ONSC 4217 (Div’l. Ct.) three of four accounts were outside the limitation in s. 3(b). The fact that none of the accounts was marked as final and they all related to a single continuing matter were found to be significant factors in support of allowing an assessment of all four accounts to proceed.
[40] Coventree Inc v. Stockwoods LLP, 2012 ONSC 2737 is an example of a situation where the client was unsuccessful in its request that certain accounts be referred for assessment. Between July 2009 and December 2011 Stockwoods rendered 24 accounts that were part of a continuing retainer with respect to an Ontario Securities Commission proceedings against Dean Tai, a principal of Coventree. From the outset of its retainer, Stockwoods rendered monthly accounts to both Tai and Coventree which were paid without complaint. Stockwoods argued that Coventree was a sophisticated client and could appreciate the nature of the services as the bills were rendered. The accounts were sent to a special committee of experienced securities lawyers. Coventree had every opportunity to assess and evaluate the work billed for in the monthly accounts on an ongoing basis. The accounts were not labelled “interim”. Coventree’s dissatisfaction with Stockwoods coincided with the issuance by Stockwoods of a notice of action on behalf of their client Tai against Coventree. The Coventree’s request for an assessment was viewed as a tit-for-tat response like that which occurred in Kantana v. Dockerill, 2007 CanLII 34436 (ONSC) which the Court of Appeal (2008) ONCA 224 held to be a rational conclusion in the circumstances noting that no one was unhappy with the legal work performed by the solicitors during the several years that they acted and the legal accounts had been paid in full many years before the issue arose. The accounts in question were not referred to assessment.
[41] There is a tit-for-tat element here as well. Pierre blamed V&H when the results of the summary judgment motion did not measure up to his expectations. Pierre’s request to assess accounts followed V&H’s decision to apply for an order to get off the record due to the deteriorating solicitor-client relationship.
[42] I view the oldest accounts, the invoices from March 28, 2007 to November 11, 2011 (the “old accounts”), as being separate from the accounts which relate to Andre’s lawsuit that flowed out of the passing of accounts, even though some of the issues were the same. The old accounts relate to services that have been completed for years. There ought to be finality with that group of accounts.
[43] The parties agree that the following invoices relate to dealings involving Charles and are not or should not be included in the Order for Assessment: invoices # 18159, 18672, 18895 and 18987. I agree that this is appropriate for the same reasons that the old accounts should not be liable for assessment.
[44] To the extent that Pierre may wish to argue that the old accounts should not be excluded from assessment either due to special circumstances or through the exercise of the Court’s inherent jurisdiction, I find that there is no evidence or special circumstances accruing in favour of Pierre that persuade me that these invoices ought to be assessed now. I find that as a lawyer with an established solicitor’s practice, Pierre was a sophisticated client. He had an opportunity to consider each bill and evaluate the work done during the billing period. The accounts were paid. I find that both parties intended that the renumeration for the services described in the old accounts to have been settled years ago.
[45] The invoices starting with #15808 were primarily focused on the issues that became incorporated into the pleadings following the Motion for Directions in late 2011 although it would not surprise me to learn that there were miscellaneous services and advice included in those accounts.
[46] I find that the following invoices are liable to be assessed: invoices # 15808, 17270, 18296, 19202. 19571, 20299, 20840, 21011, 21100, 21433, 21796, 21877, 22348, 22380, 22544 and 22796. The fact that several accounts were actually labelled as interim accounts and that they relate primarily to the litigation decided by Gomery J. are decisive considerations.
[47] In Fiset v. Falconer, 2005 CanLII 33783 (ONSC) Perrell J. said at para. 24 and 40:
Most clients are not lawyers, and it is unfortunate that the law associated with when a client is entitled or disentitled from having his or her account assess speaks in a language that would appear to have been designed to confuse lay people. Moreover, the law in this area is unusually complicated with much to confuse lay people, lawyers and judges alike.
The evidence in the immediate case establishes that the defendants made it clear to Mr. Fiset that each of the law firm’s accounts was a final account. For all these accounts, there would be no adjustment based on what might subsequently happen in the proceedings that were the subject matter of the retainer. The accounts were not provisional accounts, and the plaintiffs understood this from the commencement of the retainer.
[48] There is no evidence in this case that Pierre knew or expressly acknowledged that the post-2011 invoices ought to be considered as final. If anything, the evidence goes the other way with the references to “interim accounts”, whatever V&H meant by the use of that term. Nor do I find that he conducted himself in a manner that justifies some sort of estoppel that prevents the invoices relating to work that came to a head in the summary judgment motion from being assessed.
Disposition
[49] The Order for Assessment is varied to delete from the assessment, any accounts other than those accounts identified in paragraph 48.
[50] On the issue of costs, success has been divided. If either party wishes to make a claim for costs, they may do so by delivering a costs outline (4 pages maximum) and a draft bill of costs within 20 days and the other party shall have 20 days to respond.
Mr. Justice Martin James
Date Signed: April 6, 2021
COURT FILE NO.: CV-19-00079247
DATE: April 6, 2021
SUPERIOR COURT OF JUSTICE - ONTARIO
BETWEEN:
Pi Pierre Lamoureux, Angele Lamoureux-Menard and The Estate of Maurice Lamoureux
Applicants
(Responding parties in the Motion)
-and-
Vice & Hunter LLP and Jean-Francois Lalonde
Respondents
(Moving parties in the Motion)
BEFORE: Honourable Mr. Justice Martin James
REASONS FOR DECISION
James, J.
DATE: April 6, 2021

