Court File and Parties

COURT FILE NO.: CV-21-00656906-0000 DATE: 2021-07-15

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

BAKERLAW Applicant

– and –

JENNIFER MADILL Respondent

Counsel: Mark Donald, lawyer for the Applicant Self-represented and acting in person

HEARD: June 29, 2021

ENDORSEMENT

DIAMOND J.:

Overview

[1] The applicant, a law firm carrying on business in Toronto, brings this application seeking (a) a declaratory order that it has a valid and binding retainer agreement with the respondent, which retainer agreement included the authority to settle various legal matters described hereinafter, and (b) an order assessing the applicant’s legal fees and disbursements in the amount of $61,575.97, with any assessed amount to be paid by the respondent from monies currently held by the Accountant for the Ontario Superior Court of Justice.

[2] The application was scheduled to proceed before me on May 13, 2021. At that time, the respondent requested an adjournment to enable her to retain counsel and deliver a proper responding record, as her responding record to that point solely consisted of an unsworn recitation of facts. With some reluctance, I granted the respondent’s request, seized myself of this application, and adjourned it to be heard on June 29, 2021.

[3] The application did proceed as scheduled on June 29, 2021. The respondent did not end up retaining counsel, but did deliver sworn responding materials.

[4] At the outset of the hearing on June 29, 2021, I raised a concern with both parties that given the provision of Rule 38.10 of Rules of Civil Procedure (and the jurisprudence developed thereunder), the Court was being asked to decide the issues on this application in the absence of any cross-examination on the competing affidavit evidence. I offered both parties the opportunity to further adjourn the application, and permit cross-examinations to ensue.

[5] After considering the Court’s comments, both parties confirmed that they were content to proceed and argue the application in the absence of any cross-examinations. I advised both parties that notwithstanding their collective desires, the Court was still bound by the provisions of Rule 38.10 in the event that there were material facts in dispute.

[6] At the conclusion of the hearing, I took my decision under reserve.

Issues to be decided

[7] In my view, the following issues are to be decided by the Court on this application:

(a) Is there a valid and binding retainer agreement between the parties?

(b) Did the terms and scope of a retainer agreement permit the applicant to resolve the various matters on behalf of the respondent?

(c) If the answers to the first two issues are “yes”, should the Court proceed to assess the applicant’s accounts, and if so what is the assessed amount?

Issue #1: Is there a valid and binding retainer agreement between the parties?

[8] There is no dispute that in or around early September 2021, the respondent signed a retainer agreement provided by and in favour of the applicant. The point of contention between the parties is that the respondent takes the position that the version of the retainer agreement produced by the applicant on this application is a forgery, or at a minimum a document that has been allegedly doctored by the applicant. No doubt these are serious allegations being advanced by the respondent.

[9] The disconnection between the parties appears to be rooted in the fact that the retainer agreement produced by the applicant consists of six original pages, with the seventh signature page being page eight of an eight page fax sent by the respondent on September 7, 2012. That fax transmission was eight pages in length, as it included a cover page sent by the respondent.

[10] The respondent takes the position that the “Description Of Services” section on the first page of the retainer agreement produced by the applicant was never agreed to, and was substituted for the contents of the “real” retainer agreement. Regrettably, the respondent has not produced any other version of the first page of the retainer agreement, and the eight page fax that she sent to the applicant did not include the first page of any retainer agreement. The only version of the first page of the retainer agreement is found in the applicant’s materials, and includes the following terms (in bold as set out in the original document):

“You retain us to represent you in connection with your claim against Cineplex Entertainment filed with the Superior Court of Justice. We anticipate that our representation will involve taking the following steps on your behalf:

(a) reviewing your case;

(b) providing you with legal assistance for the mediation; and

(c) such other work as may be specifically discussed and agreed.”

[11] The respondent adamantly argues that the applicant was only retained for the specific and narrow purpose of assisting her with scheduling and potentially attending a mediation of her action against Cineplex Entertainment (“Cineplex”). Leaving aside the fact that the scope of the applicant’s retainer - regardless of what version of the document was signed - clearly expanded as the months progressed (which will be canvassed in my disposition of Issue #2 below), the record before the Court does not include any other version of the retainer agreement as alleged by the respondent.

[12] An application is designed to permit the Court to dispose of matters on a written record, and as such responding parties (in particular, responding parties who allege fraud) have an obligation to place their best evidence before the Court. The applicant has already given sworn evidence that it has thoroughly searched its files, and cannot locate any other version of the retainer agreement other than what has been produced on this application.

[13] In any event, the wording in the applicant’s retainer agreement is “standard wording” in that it allows the applicant to take steps on the part of a client which is not only delineated under the retainer agreement, but permits “other work” which may be discussed and agreed between the applicant and its client. This is not surprising, as the scope of legal work on behalf of the client may vary and change as the file progresses. This is exactly what happened in the within case as I will address in my disposition of Issue #2 below.

[14] Not only has the respondent failed to produce any other version of the retainer agreement, but there is no contemporaneous, supporting documentary evidence which could lead to a finding that the scope of the applicant’s retainer was specifically limited as the respondent now suggests. There is nothing in the respondent’s cover letter or emails at the time confirming that the applicant was solely retained to schedule and potentially conduct the mediation.

[15] Accusing a law firm of forging or clandestinely concocting a document is a serious matter which no one, including the respondent, should take lightly. One who asserts must prove, and the only purported proof offered by the respondent is her recent, self-serving statements. While I agree that it is unfortunate that the applicant did not maintain a record of the full eight page fax received by the respondent, and chose to simply maintain the faxed signature page, that in and of itself is not evidence that a fraud occurred.

[16] In addition, when the applicant did seek confirming instructions from the respondent to pursue matters over and above the mediation of the Cineplex action, neither the respondent nor her husband (who was assisting the respondent in providing instructions at the relevant time) responded with claims that the scope of the applicant’s retainer was specifically limited to the mediation, and nothing further. The respondent’s conduct in the face of the applicant’s request for instructions to pursue, and ultimately resolve, both the Cineplex matter and the Royal Bank of Canada matters (“RBC”, as described hereinafter) lead to the irresistible conclusion that the retainer agreement produced by the applicant was the version signed by the respondent.

[17] Accordingly, the answer to Issue #1 is “Yes”.

Issue #2: Did the terms and scope of a retainer agreement permit the applicant to resolve the various matters on behalf of the respondent?

[18] In or around early October 2014, the applicant received an offer to settle from counsel from Cineplex, which offer included settlement terms for two others distinct matters that the respondent had commenced against RBC. The applicant was admittedly not initially retained to represent the respondent with respect to the RBC matters, but as stated above the terms of the retainer agreement permitted the applicant to provide the respondent with legal assistance for “such other work as may be specifically discussed and agreed upon” by the parties.

[19] In any event, by email dated October 28, 2014 the applicant forwarded a copy of the global offer to settle to the respondent and her husband. The RBC matters dealt with the respondent’s long term disability claims. The applicant advised the respondent that it was in no position to provide advice concerning the merits of the RBC matters. Nonetheless, the applicant discharged its duty to communicate the terms of the global offer to settle to the respondent, and sought instructions.

[20] In that same email, the applicant reminded the respondent that she had signed an irrevocable direction confirming that any monies due under a settlement were payable to the applicant to retire any outstanding legal fees. In response, the respondent and her husband advised that they would be reviewing the global offer to settle and would be in touch with the applicant shortly.

[21] By email dated November 10, 2014 from the respondent’s husband (copied to the respondent), he told the application that it took the respondent sometime to evaluate the three matters in order to respond to the global offer to settle, and that they would like the applicant to respond on their behalf “in hopes of achieving a settlement on all three cases”. The respondent then indicated that she wanted to make a counter-offer.

[22] Some further “back and forth” occurred between the parties while the applicant was seeking instructions from the respondent. By email dated December 1, 2014, from the respondent’s husband (once again copied to the respondent), the applicant was advised as follows:

“In terms of an all-inclusive number that you have requested from us, ideally we are seeking to meet halfway between their current offer of $200k and our previous $282k in a perfect world (- $241 k). You know best how to encourage negotiations in my wife’s favour. We are simply looking to enhance the offer and as mentioned we do not care who pays what. You can call my wife during your call to get any consent for anything lower than $225k. Anything greater or equal to $225k will be accepted and you can accept on our behalf without further consent.”

[23] A further global offer to settle in the all-inclusive amount of $225,000.00 was made on behalf of Cineplex and RBC. In accordance with the instructions as set out in the above email, the applicant accepted that global offer to settle.

[24] The exchange of email correspondence between the parties is clear and unequivocal. If the respondent truly believed that the scope of the applicant’s retainer was limited to a mediation process within the Cineplex matter, then why did she entertain any discussions about a global offer to settle at all? The scope of the applicant’s retainer agreement was expanded to include the RBC matters with the respondent’s consent. Clear settlement instructions were subsequently provided to the applicant, and the applicant acted within those instructions to secure the global settlement of all three matters.

[25] There is nothing in the documentary record from late 2014 which calls any of the above facts into question. It is difficult to understand the respondent’s position on this application. She is adamant that the applicant worked outside of the alleged limited scope of the retainer agreement. I have rejected that position for the reasons set out above. The respondent further submitted that the applicant “refused to follow her instructions”, and would “yell and scream at her on the phone” in a manner which undermined his fiduciary obligations to her. The respondent further submitted that the applicant deemed her to be “mentally unfit”, and took advantage of her in a vulnerable position. The respondent argued that the global offer to settle was presented to her and her husband which they agreed to “under duress and in fear of threatened consequences”.

[26] There is no medical evidence filed on this application. The excerpts from the relevant email exchanges are set out above, and are clear. In her factum, the respondent argues that the “new retainer” was designed to steal money from the other two RBC matters “without her knowledge or authorization”. The record before this Court does not support any such position. At no time did the applicant “unlawfully settle the three cases”.

[27] Perhaps there are routes which the respondent can take in pursuing what she sees as a breach of the applicant’s fiduciary duties. However, the issues on this application are limited to whether the applicant was legally retained to deal with all three matters, and whether those three matters were settled with the respondent’s knowledge and instructions. On the record before this Court, that is what happened.

[28] Accordingly, the answer to Issue #2 is “Yes”.

Issue #3: If the answers to the first two issues are “Yes”, should the Court proceed to assess the applicant’s accounts, and if so what is the assessed amount?

[29] A formal assessment of the applicant’s accounts was scheduled to proceed before an assessment officer on January 6-7, 2020. That hearing did not proceed because, for the first time, the respondent raised issues relating to the existence, terms and extent of her retainer agreement with the applicant. This application was thus commenced in order to address those issues.

[30] The applicant requests that this Court proceed with a formal assessment of its accounts. To begin, section 3 of the Solicitors Act, R.S.O. 1990 c. S15 makes its clear that in the absence of special circumstances, an order may be obtained on requisition from a registrar for the assessment of a firm’s accounts. While an assessment officer’s jurisdiction is limited to the quantum of the retainer (and in turn the steps taken by the firm), I agree with the applicant that the assessment officer did not have jurisdiction to proceed in the face of the respondent taking significant issue with the validity of the retainer agreement itself.

[31] I also agree with the applicant that a formal assessment of the quantum of the applicant’s accounts is technically with the inherent jurisdiction of this court. That said, as held by the Divisional Court in Borden Ladner Gervais LLP v Cohen 2005 CanLII 21114 (ONDC), this Court also has the option to referring any such bills for formal assessment before an assessment officer.

[32] In my view, the assessment of the applicant’s accounts should proceed before an assessment officer. Most of the submissions made by the parties during the hearing were limited to the first two “jump off” issues, with very little time remaining for the parties (and in particular the respondent) to address the reasonableness and quantum of the fees and disbursements rendered by the applicant. An assessment officer is a specialized officer of the Court, with experience and knowledge in the assessment process. In my view, the proper result is to refer this matter back to the assessment officer for an assessment of the applicant’s invoices and bills.

[33] Accordingly, the answer to Issue to #3 is “No”, and I direct the parties to reschedule the assessment of the applicant’s accounts before an assessment officer forthwith.

Costs

[34] If the parties are unable to agree upon the costs of this application, they may serve and file written costs submissions, totaling no more than five pages, including a Costs Outline, in accordance with the following schedule:

(a) the applicant shall have 10 business days from the release of this Endorsement to serve and file its written costs submissions; and

(b) the respondent shall have 10 business days from the receipt of the applicant’s written costs submissions to serve and file her responding written costs submissions

Diamond J.

Released: July 15, 2021

COURT FILE NO.: CV-21-00656906-0000 DATE: 20210715

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

BAKERLAW Applicant

– and –

JENNIFER MADILL Respondent

ENDORSEMENT

Mr. Justice Diamond

Released: July 15, 2021