Court File and Parties

Court File No.: CV-16-00564227-0000 Date: 2021-11-16 Superior Court of Justice – Ontario

Re: Jason Tower and Robert Sinopoli, Applicants And: Cusack Legal Services, Respondent

Before: S.F. Dunphy J.

Counsel: Bryan Skolnik, for the Applicants Wayne Cusack, Acting in person and for the Respondent Cusack Legal Services

Heard at Toronto (Video): October 26, 2021

Reasons for Decision

[1] The moving party solicitor opposes confirmation of the Report and Certificate of Assessment of Assessment Officer Palmer dated February 27, 2020. That report assessed two accounts of the Mr. Cusack from 2016 totaling $20,134.22 which she assessed at $12,354.22, $4,598.36 of which was found to be due and payable after deducting payments already made.

[2] At the completion of Mr. Cusack’s submissions, I indicated that I did not need to hear from Mr. Skolnik on behalf of the respondent clients on this confirmation motion and that my written reasons for that decision would follow. These are those reasons.

[3] There is no dispute that a motion to oppose confirmation of an assessment is in the nature of an appeal. My task is not to substitute my discretion for that of the Assessment Officer. The moving party bears the onus of establishing that the order in question is clearly wrong and why. If that onus is not met, the order will not be interfered with.

[4] The accounts in question relate to Mr. Cusack’s retainer for a period of approximately fifteen months to defend his clients in a law suit. The amount at issue was approximately $75,000. Mr. Cusack ultimately terminated the retainer over the refusal of the clients to provide additional monthly retainers as agreed in the retainer agreement or to pay the outstanding accounts. To that point, no concrete steps forward in the case had been taken: no motion to set aside the default judgment facing the clients was brought nor was the draft statement of defence prepared to be used in the eventuality of the noting in default being set aside used at the end of the day.

[5] Mr. Cusack appears to be under the misapprehension that the assessment officer disregarded the terms of the written retainer agreement and proceeded to assess the accounts on a quantum meruit basis without regard to the agreements contained in it. The order in question followed a three-day hearing and resulted in 15 pages of detailed written reasons being delivered. The reasons read as a whole clearly demonstrate that the assessment officer fully understood the correct legal tests to be applied. She did not disregard the retainer agreement nor did she question its applicability. Section 3 of the Solicitors Act, R.S.O. 1990, c. S15 did not come into play.

[6] In point of fact, the Assessment Officer carefully examined the reasonableness of the amounts claimed and did not dispute the applicability of the retainer agreement.

[7] The solicitor took the position that the Assessment Officer found the existence of a collateral agreement capping fees at $7,500 notwithstanding the terms of the express written retainer agreement. Had the Assessment Officer made any such finding, that would indeed have been an error. She did not.

[8] In the course of careful written reasons, the Assessment Officer found as a fact that an estimate had been given earlier in the process and that prior to the first account being rendered in June 2016 it was reasonable for the clients to have relied upon that estimate. She found fault on the part of the solicitor in having failed to keep the clients reasonably informed on an on-going basis over the prior ten months of the evolution of the fees incurred relative to that estimate. She did not find that there was a “cap” on fees based on the estimate and did not interpret the retainer as if so amended. She also found that the clients could not reasonably rely on that earlier estimate after receiving a first account that clearly exceeded the estimate, a plainly correct finding. She clearly did not accept parol evidence to make amendments to the written agreement as alleged. This particular portion of her analysis resulted in a $5,900 reduction in the total account – an exercise of discretion which I have no basis to interfere with as long as the product of proper understanding of the applicable legal principles which it plainly was.

[9] There is nothing controversial in holding a solicitor to a requirement to keep the client reasonably informed regarding the evolution of time charges and disbursements being incurred on the client’s behalf. It is not my role to interfere with the finding of the existence of an estimate by the assessment officer in the course of a three-day hearing. There was evidence to support her finding and Mr. Cusack’s attempt to re-characterize the finding of an estimate as an oral amendment to a written agreement is both misguided and beside the point. She made no such finding.

[10] There were other smaller reductions. The assessment officer took issue with the time being charged to negotiate the retainer agreement itself, with the time charged to chase payment of the accounts and with the time spent in travel to conduct an examination on an affidavit. All of these are perfectly normal exercises of the discretion of an assessment officer. A solicitor with a written retainer agreement specifying, as this one did, the hourly rate charged is not immune to an assessment officer inquiring into the reasonableness of the amounts claimed in all of the circumstances without such review being characterized as a disregarding of the retainer agreement. It is not.

[11] Mr. Cusack’s factum raised three specific alleged errors: failure to take into consideration the written retainer agreement, error in accepting parol evidence that contradicted the terms of the retainer agreement and failing to consider the actions of the client in determining their reasonable expectations of costs.

[12] The first two alleged errors fundamentally misapprehend the reasons given by the Assessment Officer for the reasons given above. She took full note of the retainer agreement and did not in any way fail to apply it to the facts before her. She did not make any findings of a collateral agreement or amendment to the written retainer on the strength of parol evidence. The third alleged error is no more than a complaint that the facts were not found by the solicitor as he would have them found. She made reasoned and careful findings regarding the reasonable expectations of the client that I can find no basis to disturb.

[13] I find no errors of law in the decision of the assessment officer viewed as a whole. Mr. Cusack’s attempt to cherry-pick a single comment regarding quantum meruit out of context as if the assessment officer disregarded the written retainer agreement (she did not) is simply misguided.

[14] I confirm the assessment. There were no errors of law demonstrated. I find that the Learned Assessment Officer correctly informed herself about the tests to be applied and made no errors of law in the application of her discretion.

[15] Mr. Cusack also challenged the Assessment Officer’s findings in relation to costs and did so on the basis that had her underlying decision been untainted by the errors he alleged, he ought to have had costs awarded in his favour. Having found no errors demonstrated in the underlying assessment and no other errors of principle by the assessment officer in the matter of costs being alleged, I find no basis to interfere with her findings on the matter of costs of the assessment and confirm those findings as well.

[16] That leaves the matter of costs of this proceeding. The parties took advantage of a short break to reach an agreement on costs which I am happy to endorse. The clients shall have their costs of this proceeding assessed at $2,500 all inclusive.

S.F. Dunphy J.

Date: November 16, 2021