COURT FILE NO.: CV-19-00000025-00
DATE: 2021 11 29
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E N:
Peter Verbeek carrying on business as VERBEEK & VERBEEK
Peter Verbeek, for the Plaintiff
Plaintiff
- and -
Jaswant Singh Kooner
Defendant
Gurpreet Singh Chandok, for the Defendant
HEARD: July 20 and 21, 2021
REASONS FOR JUDGMENT
Dennison J.
[1] The Plaintiff, Mr. Verbeek, is a lawyer. He provided legal services to the Defendant, Mr. Kooner, until November 2018 at which point Mr. Kooner ended the relationship. Mr. Verbeek primarily did mortgage enforcement work for Mr. Kooner in relation to five separate files. Mr. Verbeek submits that there are outstanding fees owed by Mr. Kooner in the amount of $68,893.92.
[2] There was no written retainer agreement between the parties. The parties disagree about the scope of the retainer and the fees that are due.
[3] Mr. Kooner submits that there was no agreement that he would pay an hourly rate for Mr. Verbeek’s legal services.
[4] Mr. Kooner states that Mr. Verbeek was to be paid a percentage of the amount of the defaulted mortgage. In addition, Mr. Verbeek would only be paid when each matter settled, the mortgagor paid Mr. Kooner, or when money was recovered from a court order.
[5] Mr. Kooner also states the outstanding fees claimed by Mr. Verbeek are unreasonable and Mr. Verbeek’s failure to act properly on the files caused Mr. Kooner damages.
Trial Proceedings
[6] This matter proceeded as a summary trial. The evidence in chief consisted of an affidavit from each party with attached exhibits. The affidavits were made numbered exhibits at the trial. Portions of the discovery transcript dated February 24, 2020, were also introduced as evidence. Each party cross-examined the other party. If a particular document was referred to by the other party during cross-examination, it was made a lettered exhibit to the numbered exhibit so that it was clear what documents were put to the witnesses.
Background Facts
Nature of the Relationship Between the Parties
[7] Mr. Verbeek is a practising lawyer in Mississauga, Ontario. He was called to the bar in 1984.
[8] Mr. Verbeek testified he provided legal services for Mr. Kooner from 2002 until November 2018. Mr. Verbeek stated Mr. Kooner terminated his services and refused to pay because he did not like the amounts owed on the various files.
[9] Mr. Verbeek testified that in 2018 he did not have clients sign written retainer agreements. Since this action, all his clients sign retainer agreements. Mr. Verbeek testified he told Mr. Kooner his hourly rate was $575 per hour. Mr. Verbeek denied that he charged clients a percentage of what was recovered from the defaulted mortgage.
[10] Mr. Verbeek agreed that with simple mortgage enforcement files he often bills when the file is completed because files are often completed within three months. With longer files, it is his practise to bill intermittently.
[11] Mr. Verbeek stated it was his practise to consult with Mr. Kooner to obtain instructions. Mr. Verbeek would conduct the necessary title searches, draft the Statements of Claim, and review them with Mr. Kooner.
[12] Mr. Verbeek prepares his own bills. He does not have an accountant prepare his bills, nor does he use any software for his accounting. Mr. Verbeek testified he usually makes notes on the inside of the file with respect to how much time is spent on the file. He agreed that no dockets were provided to Mr. Kooner explaining the amounts outlined in the invoices.
[13] Mr. Verbeek testified that no two files are the same. The steps may be the same, but the time spent on each file differs depending on the issues raised and how much time is spent on the phone with the client.
[14] The invoices attached to Mr. Verbeek’s affidavit state the following amounts are owed by Mr. Kooner:
| Date | File | Amount owing ($) |
|---|---|---|
| May 8, 2018 | 205B Raleigh Avenue, Toronto (Second Mortgage) | 9,332.58 |
| May 8, 2018 | 205B Raleigh Avenue, Toronto (Third Mortgage) | 7,578.26 |
| August 11, 2018 | Adewumi (2 Statements of Claim) | 2,690.17 |
| August 14, 2018 | 1215 Lowrie Street, Innisfil | 8,607.90 |
| September 14, 2018 | 205B Raleigh (Examination for Discovery) | 9,362.39 |
| September 18, 2018 | 430 Brock Street, Toronto | 7,434.92 |
| October 12, 2018 | 205B Raleigh (Summary Judgment) | 28,206.60 |
| November 10, 2018 | 363 Grace Street (Lien) | 1,700.37 |
| 205B Raleigh (Payment) | -(6,000.00) | |
| Total: | $68,913.19 |
[15] Mr. Kooner does not dispute that he used Mr. Verbeek’s services. He stated Mr. Verbeek did not uphold the standards of the legal profession as outlined in Rules 2 and 3 of the Law Society of Ontario’s (“LSO”) Rules of Professional Conduct.
[16] There is no written agreement between the parties. Mr. Kooner stated Mr. Verbeek never asked for a retainer and the parties never discussed an hourly billing rate. They had agreed that Mr. Kooner would pay Mr. Verbeek’s fees after each matter settled through either the mortgagor paying Mr. Kooner, the proceeds of the sale of the property, or money recovered by court orders. Mr. Kooner stated this is standard practise in the industry and no other fee arrangements were discussed with Mr. Verbeek.
[17] Mr. Kooner also suggested that the fees owed were based on a percentage of the outstanding mortgage owed by the defendant.
[18] Mr. Kooner stated the fees charged were excessive and that he was not provided any dockets to justify the fees.
[19] Five files form the basis of this action. I will now review the evidence of the parties in relation to each file, as it is relevant in determining the nature of any agreement between the parties.
Tolulope Adewumi Matter
[20] Mr. Verbeek states Mr. Kooner retained him to draft two Statements of Claim against Mr. Adewumi, suing him for $475,000 and $160,000 respectively. Mr. Kooner alleged that he gave these sums to Mr. Adewumi to give to third parties for two mortgages. Mr. Adewumi did not use the money for the mortgages.
[21] Mr. Verbeek prepared two Statements of Claim at the request of Mr. Kooner and reviewed them with him. For this work, Mr. Verbeek provided an invoice for $2,690.17, dated August 11, 2018. Mr. Verbeek states Mr. Kooner requested that he be provided with the two Statements of Claim so that he could personally serve Mr. Adewumi, who was hiding from police but still speaking to Mr. Kooner.
[22] Mr. Kooner denies owing $2,690.17 and states that the maximum he owes for this file is $900.
[23] Mr. Kooner states Mr. Verbeek unnecessarily filed two Statements of Claim. Mr. Kooner requested a copy of the Statements of Claim because Mr. Verbeek refused to serve them on Mr. Adewumi.
[24] In cross-examination, Mr. Kooner was shown his examination for discovery, where he stated that he instructed Mr. Verbeek to prepare the two Statements of Claim and give them to him so he could serve Mr. Adewumi. At trial, Mr. Kooner stated he never received the documents.
1215 Lowrie Street, Innisfil (“Lowrie Street”)
[25] The Lowrie Street file was a mortgage enforcement action for $79,636.97, plus 10 percent interest. Mr. Verbeek states he prepared a Statement of Claim, a Notice of Sale under the Mortgage, and reviewed the Statement of Defence with Mr. Kooner. Mr. Verbeek also wrote a factum and argued a summary judgement motion. Mr. Kooner was successful. Mr. Verbeek obtained a writ of possession and directed the Sheriff to obtain possession. The matter was sent to Mr. Kooner to meet with the Sheriff to change the locks.
[26] Mr. Verbeek does not seek fees for the factum and appearance on the summary judgement motion because that invoice was not included in Mr. Verbeek’s Statement of Claim for this action.
[27] Mr. Verbeek seeks fees for the invoice dated August 14, 2018, in the amount of $8,607.90. This invoice deals with the issuance of the Statement of Claim and reviewing the Statement of Defence.
[28] In cross-examination, Mr. Kooner agreed that the Lowrie Street file settled, but he had still not paid the outstanding fees. Mr. Kooner explained that Mr. Verbeek would not accept partial payment. Mr. Kooner agreed there were a total of five separate bills, but his concern was the fairness of the amount owing on all of the bills. He was, therefore, not prepared to pay until a fair amount for all of the bills was reached.
430 Brock Street, Whitby (“Brock Street”)
[29] The Brock Street file was also a mortgage enforcement file. Mr. Verbeek states Mr. Kooner owes fees for this file in the amount of $7,434.92, as set out in the invoice dated September 18, 2018. The amount due under the mortgage was $263,280.12.
[30] Mr. Verbeek states he prepared a Statement of Claim, Notice of Sale under the Mortgage, and reviewed the Statement of Defence with Mr. Kooner. Mr. Verbeek states his retainer was terminated prior to the summary judgment motion being scheduled.
[31] Mr. Kooner states Mr. Verbeek, at first, only claimed against the borrower, Ominara Marlin, and not the guarantor, Marlin Marsh. Mr. Verbeek then issued another Statement of Claim against the guarantor.
[32] Mr. Kooner also states Mr. Verbeek filed the Statement of Claim and served Marlin Marsh but did not pursue the matter. Marlin Marsh did not file a Statement of Defence and Mr. Verbeek did not note him in default. These files were also not provided to Mr. Kooner in a timely fashion once he requested they be transferred to new counsel.
[33] Mr. Verbeek explained that he filed two Statements of Claim because, upon reviewing the file, he realized he missed naming the guarantor. He did not charge Mr. Kooner for issuing the second Statement of Claim because it was his mistake. Mr. Verbeek testified there was a lot of communication on this file with Mr. Kooner because the defendant’s position was that payments were up to date.
[34] Mr. Verbeek testified he suggested to Mr. Kooner that they bring a summary judgment motion. Mr. Verbeek was waiting to hear back from Mr. Kooner when his services were terminated.
363 Grace Street, Toronto (“Grace Street”)
[35] In this matter, Mr. Verbeek seeks $1,700.37, as set out in the invoice dated November 10, 2018. The contractor sued Mr. Kooner for $242,000.
[36] Mr. Verbeek states he was retained by Mr. Kooner to correspond with the contractor to stop work on the Grace Street property. The contractor filed and issued a Statement of Claim and put a lien on the property pursuant to the Construction Lien Act, R.S.O. 1990, c. C.30. Mr. Verbeek also met with Mr. Kooner to review the Statement of Claim and discuss how to best proceed with the file.
[37] Mr. Kooner states he never received this invoice and claims Mr. Verbeek did nothing on this file. There is no retainer or terms, and fees were never discussed or decided. No dockets were provided to Mr. Kooner.
[38] Mr. Kooner states Mr. Verbeek’s inaction on this file cost him money. Mr. Kooner states Mr. Verbeek assured him and his son that he would file a Statement of Defence. The Statement of Defence was not filed within the required twenty days.
[39] On October 4, 2018, Mr. Kooner sent an email to Mr. Verbeek asking that the lien be removed. He stated he could not list the property for sale because of the lien.
[40] On October 5, 2018, Mr. Verbeek responded, asking Mr. Kooner to come to the office for a meeting. In that email, Mr. Verbeek stated that if Mr. Kooner wanted the lien lifted, “it could be done by next week.”
[41] Mr. Kooner states Mr. Verbeek knew the file was critical and that the construction lien needed to be discharged immediately so the property could be sold. Mr. Kooner sent Mr. Verbeek an email to this effect on December 5, 2018. The lien was not discharged until June 28, 2019, by Mr. Kooner’s subsequent counsel. Mr. Kooner states this delay caused him financial losses.
[42] Mr. Kooner agreed in cross-examination that he did not claim any financial losses in his Statement of Defence in this action. Nor did he provide evidence that the lien prevented an offer to purchase the Grace Street property.
[43] Mr. Verbeek testified he met with Mr. Kooner and his son when the file first commenced to see how they wanted to proceed. The construction lien was not perfected within the time requirements, as it was one day late. They talked strategy. Mr. Rotman, another counsel from the firm, was also involved. The two counsel advised Mr. Kooner that it made more sense to conduct examinations on the lien first and issue the Statement of Defence at a later point. They would then ask to have the lien vacated and convert the matter to a regular claim. Hopefully by then two years would have passed and the matter could not proceed as an action. Mr. Kooner advised he did not need to sell the property and agreed to this course of action.
[44] Mr. Verbeek explained that he did not file a Statement of Defence because he spoke to plaintiff’s counsel. They were agreeable to cross-examinations taking place first. Counsel agreed not to note Mr. Kooner in default.
[45] Mr. Verbeek agreed that initially Mr. Kooner wanted the lien vacated, but after they advised him of their strategy, he agreed to wait. Mr. Verbeek stated that if Mr. Kooner had instructed him to bring a motion to have the lien removed, he would have done so as it was not difficult.
205B Raleigh Avenue, Toronto (“Raleigh Avenue”)
[46] This Raleigh Avenue file involved a second mortgage to Geneva Augustin. The amount owing on the mortgage was $84,400 and was guaranteed by Marlin Marsh. In August 2017, Mr. Kooner provided a third mortgage to these parties on the same property in the amount of $49,900.
[47] Mr. Verbeek states he was retained to commence mortgage enforcement proceedings in March 2018. He completed a Statement of Claim, Notice of Sale under the Mortgage, reviewed the Statement of Defence, and prepared a Reply. Cross-examinations were scheduled for two days. Two summary judgment motions were heard before me. Factums were filed in support of both motions. Mr. Rotman argued the summary judgment motion on behalf of the firm. Mr. Verbeek testified he told Mr. Kooner that Mr. Rotman would be working on the file because of his experience on construction lien matters.
[48] The court decided in favour of Mr. Kooner and ordered a reference on both matters with respect to the quantum of damages.
[49] There are several invoices in this Raleigh Avenue file. Two invoices, dated May 8, 2018, include drafting and reviewing the Statement of Claim and reviewing the Statement of Defence. Mr. Verbeek seeks fees of $9,332.58 for his services in the second mortgage file and $7,578.26 for the third mortgage file.
[50] There is also a bill dated September 14 2018, that seeks fees of $9,362.39 for preparing and conducting cross-examinations. Sometime prior to receiving the last bill dated October 12, 2018, Mr. Kooner paid $6,000.
[51] In the October 12, 2018 bill, Mr. Verbeek sought fees of $28,206.60. This bill was for preparing and attending the two summary judgment motions and included the amount outstanding from September 18, 2018.
[52] Mr. Kooner stated he was surprised by the amount owing on the October 12, 2018 bill, because he had never seen a bill that high before. It was ten times higher than usual.
The Breakdown of the Relationship
[53] Mr. Kooner states that, due to a couple of incidents, he terminated his relationship with Mr. Verbeek in the fall of 2018. Mr. Kooner felt that Mr. Verbeek had divided loyalties, delayed litigation, and was not acting as instructed. Mr. Kooner’s concerns were set out in an email dated October 4, 2018, though he did not terminate Mr. Verbeek’s services at that time. Mr. Kooner denied the suggestion that the reason he sent the email was because he did not like the amount owing on the invoices.
[54] According to Mr. DiMonte, Mr. Kooner’s subsequent counsel, Mr. Kooner retained him on or about November 1, 2018, to take over several files handled by Mr. Verbeek.
[55] On December 6, 2018, Mr. Kooner advised Mr. Verbeek that the retainer was terminated.
[56] On December 14, 2018, Mr. Kooner sent Mr. Verbeek an email asking for his files on the mortgages in the amounts of $65,000 and $49,000 (the Raleigh Avenue property) and Brock Street. Mr. Verbeek responded the same day, saying that prior to releasing the files, the outstanding fees had to be paid. Mr. Kooner sent a further email to Mr. Verbeek requesting an invoice for each file, including details of what was done and what was charged. In the email, Mr. Kooner stated that if Mr. Verbeek provided the file, he was willing to pay the legal fee of $6,000 to $7,000.
[57] On December 20 and 21, 2018, Mr. Verbeek sent two emails to Mr. Kooner and copied Mr. DiMonte. Mr. Verbeek advised that Mr. Kooner needed to set a reference hearing in accordance with the court order. In that email, Mr. Verbeek stated, “I have reviewed the files and the reference accounting can be done with the material I have in the files.” Mr. Verbeek stated that he needed instructions from Mr. Kooner to complete the accounting. Mr. Kooner agreed he did not respond to Mr. Verbeek.
[58] Mr. DiMonte stated he spoke to Mr. Verbeek because of the upcoming deadline imposed by the court. Mr. Verbeek told him that he would file the necessary affidavits for the reference. Mr. DiMonte assumed he had done so, but on December 20, 2018, Mr. Verbeek emailed Mr. DiMonte indicating he had not. Mr. Verbeek said the LSO advised him that he could not prepare the affidavits without clear direction from his client and Mr. Kooner had not provided such instructions.
[59] Mr. Kooner testified he requested Mr. Verbeek release the files to him so that he could comply with the thirty-day instruction by the court. Mr. Verbeek knew of the urgency and did not release the documents for more than seven months.
[60] On May 10, 2019, Mr. DiMonte emailed Mr. Verbeek and requested to pick up the files, except for Mr. Verbeek’s personal notes and records.
[61] On June 6, 2019, Mr. Verbeek emailed Mr. DiMonte wanting undertakings that upon settlement of each file, his outstanding accounts would be paid with interest in accordance with the Statement of Claim he issued to commence this action.
[62] In cross-examination, Mr. Kooner agreed he did not sign any of the undertakings because he did not agree with the amounts owed. At least one undertaking was sent to Mr. DiMonte on June 13, 2019.
[63] On June 25, 2019, Mr. DiMonte sent a letter to Mr. Verbeek stating that Mr. Kooner wished to pay whatever costs are awarded on the files when they conclude. On June 27, 2019, Mr. Verbeek responded that it was his position that the account needed to be protected in full, as the costs are likely to be only on a partial indemnity basis.
[64] Mr. DiMonte booked a reference in relation to the second and third mortgages on the Raleigh Avenue property returnable on July 2, 2019. As the date approached, Mr. DiMonte did not have the necessary materials and contacted Mr. Verbeek. Mr. Verbeek was in Florida until June 30, 2019. As a result, Mr. DiMonte adjourned the matter to July 12, 2019.
[65] The matter was further adjourned to August 7, 2019, to allow the mortgagors to retain counsel and to hopefully have Mr. Verbeek or Mr. Rotman defend their accounts.
[66] Mr. Verbeek states that on August 6, 2019, Mr. DiMonte requested that he attend a reference the next day. Mr. Verbeek advised that he had a trial the next day and could not attend.
[67] Neither Mr. Verbeek nor Mr. Rotman attended to defend their accounts. No dockets were filed on the reference. The parties had discussions and ultimately settled. Mr. DiMonte stated some consideration was given to the value of the work that Mr. Verbeek did on the file and $15,000 was set aside as a contribution to Mr. Verbeek’s accounts.
[68] Mr. DiMonte agreed to hold $15,000 towards the fees owed to Mr. Verbeek. Mr. Kooner agrees this amount is to be paid to Mr. Verbeek. This means that, in total, Mr. Kooner will have paid Mr. Verbeek $21,000 towards the Raleigh file.
[69] Mr. Kooner disputes the remainder that is still owing on this file. Mr. Kooner states Mr. Verbeek claims Mr. Rotman worked extensively on this file, but Mr. Kooner has not seen any dockets from either counsel with respect to any files.
Issues
[70] There are several issues to be determined in this trial:
Should paragraphs 35-36 of Mr. Kooner’s affidavit be struck?
What was the agreement between the parties regarding the terms of the retainer?
3. Was Mr. Verbeek required to turn over the files when his services were terminated?
4. Were the fees charged reasonable, having regard to Mr. Verbeek’s conduct on the files?
Preliminary Issue: Should Paragraphs 35 and 36 of Mr. Kooner’s Affidavit be Struck?
[71] Paragraphs 35 to 36 of Mr. Kooner’s affidavit state that there have been at least three decisions from the Hearing Panel of the LSO involving Mr. Verbeek. Mr. Kooner submits this evidence is relevant in assessing the credibility of Mr. Verbeek.
[72] Prior to the commencement of the trial, Mr. Verbeek sought to have these paragraphs struck on the basis that there was no legitimate reason to admit this bad character evidence. I determined that, because this was a judge alone trial, I would hear the cross-examination of Mr. Verbeek and determine if the LSO complaints were relevant.
[73] In civil trials, good and bad character evidence is generally not admissible. However, bad character evidence can be admitted in certain circumstances. As explained by the Ontario Court of Appeal in Deep v. Wood (1983), 1983 CanLII 3101 (ON CA), 143 D.L.R. (3d) 246 (Ont. C.A.), at p. 250, “[C]ross‑examination relating to general reputation for untruthfulness or to prior criminal convictions or to findings of professional misconduct involving dishonesty may be used to diminish the credibility of a witness.” Bad character evidence may also be admissible as similar fact evidence.
[74] I am satisfied that paragraph 35 of Mr. Kooner’s affidavit, relating to the restriction on Mr. Verbeek’s practise, should be struck. The LSO documentation states that Mr. Verbeek’s practise is restricted such that he “will not directly or indirectly act as an Executor or Estate Trustee, an Attorney for Property or Guardian of Property or have any management and control of estate assets.” There is no evidence before me as to why this condition was imposed. While it is likely it was the result of some misconduct, without further evidence, the court cannot assess what, if any, probative value should be given to this evidence. The prejudicial effect of introducing this evidence is high because it requires the trier of fact to speculate as to the reason for the condition limiting Mr. Verbeek’s practise.
[75] I am satisfied that the 2007 finding of misconduct in paragraph 36 is admissible. On December 17, 2007, the LSO found that Mr. Verbeek engaged in professional misconduct. He “failed to serve his lender clients in a conscientious and diligent manner in relation to the sale and mortgage transactions related to 16 properties.” He “prepared reports that he knew or ought to have known were false and/or misleading.” He was suspended for three months and paid a fine.
[76] The LSO found that Mr. Verbeek engaged in dishonest conduct with clients. This evidence is probative of Mr. Verbeek’s credibility as to how he dealt with Mr. Kooner. The probative value of this evidence is not substantially outweighed by the evidence’s prejudicial effect. As this is a judge alone trial, there is no risk that the trier of fact will give improper weight to the evidence and that the bad character evidence will overtake the trial process and distract the trier of fact from the main issues.
[77] I find that the misconduct found by the LSO on March 6, 2020, set out in paragraph 36 of the affidavit, should be struck. The LSO found that Mr. Verbeek failed to act with integrity by commencing a court action in 2015 against S.S. S.S. had previously made a complaint against Mr. Verbeek to the LSO. Mr. Verbeek was reprimanded and ordered to pay costs in the amount of $3,000. There was no finding that Mr. Verbeek engaged in dishonest conduct when dealing with his clients, so the probative value of this evidence is limited. The finding that he failed to act with integrity prejudicially suggests that Mr. Verbeek is merely a bad person.
Issue #1: What was the Agreement between the Parties?
[78] Mr. Kooner submits there was no valid agreement between the parties regarding the terms of the retainer and therefore it is not appropriate to refer this matter for an assessment. I agree.
[79] Section 3(b) of the Solicitors Act, R.S.O. 1990, c. S.15, provides:
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 by the client, for the assessment of a bill already delivered, within one month from its delivered.
[80] Where the terms of the retainer are disputed, an assessment officer does not have authority to address disagreements about the retainer, so the matter must be dealt with by the court: Cookish v. Paul Lee Associates Professional Corporation, 2013 ONCA 278, 305 O.A.C. 359, at paras. 34 and 52-55.
[81] There is no dispute that Mr. Kooner and Mr. Verbeek had an ongoing business relationship. The exhibits in the trial affidavits prove that Mr. Verbeek completed legal work for Mr. Kooner. In addition, Mr. Kooner made some payments for the work done by Mr. Verbeek. There was, however, no written retainer agreement between the parties. The benefit of such an agreement is underscored by what happened in this case.
[82] While Rule 3.2-1(A.1) of the Rules of Professional Conduct require that a limited scope retainer be in writing, courts have upheld oral retainers. The Ontario Court of Appeal in Rye and Partners v. 1041977 Ontario Inc. (2004), 2004 CanLII 8988 (ON CA), 188 O.A.C. 158 (Ont. C.A.), at para. 3, disagreed with the premise that any oral retainer is void unless in writing. The court held, at para. 2, that “when a solicitor fails to reduce to writing the terms of his or her retainer and a dispute arises, there is a heavy onus on the solicitor to establish a retainer”: See also Broesky v. Lüst, 2011 ONSC 167, 330 D.L.R. (4th) 259, at para. 48; Roberts v. Kroll, [1971] B.C.J. No. 564, at paras. 16 and 28.
[83] In considering if there was a retainer agreement and its terms, the court must consider whether the parties had a meeting of the minds. In other words, would an objective reasonable bystander conclude that in all the circumstances the parties intended to enter into a retainer agreement. The terms of the retainer must also be sufficiently certain.
[84] In this case, there is no issue the parties had an agreement that Mr. Verbeek would provide legal services for Mr. Kooner. The real issue is what were the terms of that agreement.
[85] In determining the terms of the agreement, it is necessary to consider the credibility and reliability of Mr. Verbeek’s and Mr. Kooner’s evidence.
[86] In assessing the evidence of Mr. Verbeek and Mr. Kooner, I may accept some, none, or all of either party’s evidence. In considering the credibility of a witness, the court considers the plausibility of the witness’ evidence. The court considers inconsistencies within a witness’ evidence and inconsistencies with other witness’s evidence or other evidence at trial to assess how a witness’ version of events fits with other evidence in the case. The court may also consider motives to lie and, to a much lessor degree, the demeanour of the witness.
[87] In cases that are based solely or principally on the oral evidence of parties, the following principles should be applied:
a) The standard of proof applicable to competing versions of an event is whether it is “more likely than not” that the alleged event occurred as proffered by the plaintiff.
b) The trial judge must scrutinize the evidence with care. There is no differing level of scrutiny or care that applies depending on the seriousness of the case.
c) A witness’s statement should be scrutinized in light of, and in conjunction with, all of the other evidence.
d) Evidence must be sufficiently clear, convincing, and cogent to satisfy the balance of probabilities test. There is no objective standard to measure sufficiency. The judge is faced often with evidence of events that are alleged to have occurred many years before, where there is little other evidence than that of the plaintiff and the defendant. As difficult as the task may be, the judge must decide: F.H. v. McDougal, 2008 SCC 53, [2008] 3 S.C.R. 41, at paras. 44-49.
[88] Mr. Kooner submits that the bills were prepared for the purpose of this litigation and there was no agreement to charge him an hourly rate. He submits that he has always been provided with a detailed docket and his approval is sought prior to seeking payment when dealing with other lawyers. Mr. Kooner filed no evidence as to how he paid for any of Mr. Verbeek’s previous work. Similarly, Mr. Verbeek did not file any bills from previous work to demonstrate the terms of their agreement.
[89] I do not accept Mr. Kooner’s suggestion that the invoices were prepared for the purpose of this litigation. While there is no direct evidence as to when each bill was sent to Mr. Kooner, there is a basis to infer that they were sent in advance of this litigation. Mr. Kooner paid $6,000 on the Raleigh Avenue file sometime prior to October 12, 2018, because that payment is reflected on that bill. It is reasonable to infer that Mr. Kooner received either the May 8, 2018 bills, or the September 14, 2018 bill, prior to receiving the October 12, 2018 bill.
[90] I find that Mr. Kooner received the October 12, 2018 bill around the time it was dated. Mr. Kooner was not happy about the amount owing on this bill, as he readily admitted. He stated the bill was ten times more than other bills. I find that this bill formed a large part of the reason why he retained new counsel by November 1, 2018.
[91] Mr. Verbeek has satisfied the high threshold of demonstrating the terms of the agreement between Mr. Kooner and him for the reasons set out below.
[92] I accept Mr. Verbeek’s evidence that he advised Mr. Kooner that he charged an hourly rate of $575 for his services and that Mr. Kooner agreed to pay this hourly rate. Mr. Verbeek’s evidence was clear that when he meets with a client, he explains his hourly rate is $575 and that, while it seems like a lot, it is not the amount that is important but what he gets done within the hour. Mr. Verbeek was not shaken on his evidence on this point during cross-examination.
[93] In assessing Mr. Verbeek’s credibility, I recognize his prior misconduct finding by the LSO for deceitful behaviour in 2007. This finding is now 14 years old. There is no evidence of a continual pattern of deceitful conduct when dealing with clients. I, therefore, find that this prior misconduct does not significantly undermine the credibility of Mr. Verbeek.
[94] The hourly rate was reflected on the bills that Mr. Kooner received, further demonstrating that he agreed to pay an hourly rate. As I explained above, I am satisfied that Mr. Kooner received either the May 8, 2018 bills, or the September 14, 2018 Raleigh Avenue bill, before October 12, 2018. The bills from these dates are clear that fees are charged on an hourly basis. In the May 8, 2018 bills, the hourly rate is listed as $575. In the September 14, 2018 bill, the hourly rate is not listed but the hours spent and the amount owing clearly show that the hourly rate charged was $550 per hour. If Mr. Kooner had an issue with paying an hourly rate, he had an opportunity to raise that concern at that time. He did not. Instead, he paid part of the bill.
[95] I recognize there is a discrepancy in the hourly rate charged between the September 14, 2018 bill, which charged $550 per hour, and the May 2018 bills, which charged $575 per hour. There is no evidence as to why the hourly rate on the September 14, 2018 bill is lower. I do not find that it undermines Mr. Verbeek’s evidence that he told Mr. Kooner his hourly rate was $575 per hour, as is reflected on the other bills. The nature of the work done on the September 14, 2018 bill was substantially different than the other work done on the other files.
[96] In contrast to Mr. Verbeek’s evidence, I found Mr. Kooner’s evidence as to the nature and terms of their agreement to be vague and unconvincing. He did not clearly articulate what he understood their agreement to be.
[97] At one point, Mr. Kooner suggested Mr. Verbeek was to be paid on a contingency basis, by receiving a portion of the mortgage money that was owed on the file. He pointed to the Lowrie file where the mortgage amount recovered was approximately $86,000 and Mr. Verbeek billed approximately $8,600. He did not testify that they agreed to a certain percentage of the mortgage owed or a certain percentage of the monies recovered. Neither arrangement makes sense when one looks at the files. It would not be in Mr. Verbeek’s interest to work on the third mortgage for the Raleigh Avenue file when the amount of the mortgage was only $49,900. He would only recover approximately $4,900. Similarly, given Mr. Kooner’s evidence, one would have expected Mr. Verbeek to bill significantly more than $7,434.92 for the Brock Street file since the outstanding money owed on the mortgage was over $200,000.
[98] Mr. Kooner also stated it was his understanding that it is industry standard for lawyers in mortgage matters to recover their accounts from the recovered money and not on an hourly basis. No independent evidence was provided to demonstrate this is industry standard. The absence of evidence on this point undermines his assertion.
[99] While I am satisfied that Mr. Verbeek told Mr. Kooner that he charged $575 per hour, I am not satisfied that Mr. Verbeek told Mr. Kooner that he was increasing his hourly rate to $600, as reflected in the October 12, 2018 bill. There was no evidence before me that the parties had any conversation about increasing Mr. Verbeek’s hourly rate. Moreover, Mr. Verbeek’s evidence on this point is undermined by the fact that in his examination in chief he stated his current rate is $595 per hour. I also note that in the November 10, 2018 bill, Mr. Verbeek only charged $575 per hour. I find that the hourly rate on the October 12, 2018 bill was inflated and not agreed to by the parties.
[100] With respect to when payments were due, I accept Mr. Verbeek’s evidence that when mortgage enforcement matters were straight-forward, he generally billed once proceedings were completed. He explained that a file could often be concluded within three months. He testified that where matters took longer, he would interim bill. This makes sense from a practical standpoint.
[101] I do not accept Mr. Kooner’s evidence that he was only required to pay Mr. Verbeek when he recovered the money from the mortgagor, the proceeds of the sale of the property or money recovered through court orders for the following reasons.
[102] First, I have already found that there was no contingency agreement, but rather, Mr. Verbeek charged by the hour. As such, Mr. Verbeek’s fee was not contingent on obtaining a successful result.
[103] Second, as a matter of common sense, a businessperson such as Mr. Kooner could not have expected that he would not have to pay for services on a complicated and lengthy file. Indeed, Mr. Kooner’s own actions in paying $6,000 towards the Raleigh Avenue file, when it was not yet concluded, recognizes that interim billing was agreed to in more complicated matters.
[104] I am satisfied, on the balance of probabilities, that Mr. Kooner agreed to pay Mr. Verbeek an hour rate of $575 for legal services and that generally payment was requested once the file was concluded. Where, however, matters were longer, Mr. Verbeek billed intermittently.
[105] Upon reviewing all of the evidence, it is apparent that the Mr. Kooner’s primary concern was not the terms of the agreement but with the reasonableness of fees charged by Mr. Verbeek.
Issue #2: Was Mr. Verbeek Required to Turn Over the Files?
[106] Mr. Kooner submits Mr. Verbeek acted unreasonably in not providing Mr. Kooner his files when requested. I disagree.
[107] According to the Rules of Professional Conduct, at Rule 3.7-9, a lawyer who is discharged by a client shall do the following:
(b) subject to the lawyer's right to a lien, deliver to or to the order of the client all papers and property to which the client is entitled;
(f) co-operate with the successor legal practitioner so as to minimize expense and avoid prejudice to the client.
[108] In the LSO’s commentary of this rule, the LSO emphasizes that generally “the lawyer should not enforce the lien if to do so would prejudice materially the client's position in any uncompleted matter”: at comment [2].
[109] As Rule 3.7-9(b) suggests, a lawyer cannot reasonably refuse the return of client documents or property unless there is a valid right to a lien, often called a “solicitor’s lien.”
[110] A good description of the rationale for solicitor’s liens is provided in Price v. Lambrinos, 2012 ONSC 4856, at para. 21 (referring to Metrin Mechanical Contractors Ltd. v. Big H. Construction Inc. (2001), 10 C.P.C. (5th) 302, at para. 45 and 51):
45 … Where a solicitor is discharged by the client without cause, the solicitor is entitled to a lien; and where a solicitor removes himself or herself from the record without cause, the lien is lost.
51 It seems to me that the rationale behind a solicitor's lien is largely to prevent a party from "lawyer shopping" mid-way through a matter, after running up an account. Where a party, of his own volition, chooses to change counsel in a context which cannot objectively be viewed as counsel's fault, the latter should have some means to ensure that, at the end of the day, his account is paid. A solicitor's lien is the mechanism that has been devised to apply some pressure to the client who initiates such a process.
[111] I find that Mr. Verbeek was not unreasonable in refusing to turn over the files for several reasons.
[112] First, there were monies outstanding on the files.
[113] Second, Mr. Verbeek initially offered to assist in the assessment of the Raleigh Avenue files given tight timelines. Without Mr. Kooner’s instructions to do so, Mr. Verbeek was advised by the LSO that he could not assist. Mr. Kooner did not provide the necessary instruction.
[114] Third, there is no evidence that Mr. Kooner suffered any damages because the files were not turned over promptly. He made no counterclaim for damages in this action. He also failed to provide any evidence of how Mr. Verbeek’s handling of the files caused him any damages. For example, there is no evidence that not lifting the lien on the Grace Street property earlier prevented Mr. Kooner from selling that property.
[115] Fourth, Mr. Verbeek agreed to an undertaking that, if the fees owed were held in trust, he would turn over the files. Mr. Kooner did not sign this undertaking.
[116] Fifth, Mr. Kooner could have been proactive and brought a motion for the return of the files pursuant to r. 15.03 (4) and (5) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, but he did not.
Issue #3: Was the Amount Charged Reasonable?
[117] Both parties submit that, if I find there is a valid agreement between the parties, I should assess the accounts. There is a long line of cases that recognise the court’s inherent jurisdiction to assess a lawyer’s fees: Chenier v. Menzies & Coulson et al, 2010 ONSC 2009, at para. 11; Gowling Lafleur Henderson v. Springer, 2013 ONSC 923, at para. 35. Having heard the evidence and submissions regarding the reasonableness of the fees, it is appropriate that I determine this issue.
[118] Mr. Kooner submits that Mr. Verbeek breached several rules of professional conduct and that the court must consider these breaches in determining if the amounts charged are reasonable. In particular, Mr. Kooner asserts that Mr. Verbeek was not prompt in his services and did not advise him honestly and candidly about the nature of the services that could be provided. I will address the particular concerns raised by Mr. Kooner when looking at each file.
[119] It is Mr. Verbeek’s onus to demonstrate that the fees are reasonable.
[120] I will address each of the five claims separately in assessing the reasonableness of the bills. However, I note that it is very difficult to determine what is reasonable when there are no dockets provided or documents showing the time spent on the file recorded at the time the work was done. Rather the bills simply contain the hours spent and work done. Mr. Verbeek did file, as evidence, various Statements of Claim and correspondence to demonstrate the work he did on files. Any ambiguity or question as to the reasonableness of the fees must be assessed in favour of the defendant given the lack of a written retainer: Coughlin v. Comery, 1998 CanLII 1222 (Ont. C.A.), at para. 1.
[121] Cohen v. Kealey & Blaney (1985), 10 O.A.C. 344 (Ont. C.A.), at para. 11, lists several factors that are relevant to cost assessments, including the time expended by the lawyer, the legal complexity of the matter, the degree of responsibility assumed by the lawyer, and the monetary value of the matters in issue.
[122] I also note that the hourly rate of $575 per hour charged by Mr. Verbeek is not, in and of itself, unreasonable based on a review of the jurisprudence. Mr. Verbeek was called to the bar in 1984. For examples of other cases where similar hourly rates were charged, see Nifco v. Nifco, 2018 ONSC 4567, at para. 17; Ohanessian v. Kalisz, 2016 ONSC 1276, at para. 33.
Tolulope Adewumi Matter (preparing two Statements of Claim)
[123] Mr. Kooner sought damages from Tolulope Adewumi in the amount of $475,000 for fraudulent misrepresentation, conspiracy to defraud, or unjust enrichment. He claimed that he provided Mr. Adewumi, who was acting as a lawyer, $475,000 for a mortgage to be given to a third party. The third party did not receive the money. Mr. Adewumi executed an acknowledgment that he was responsible for the full amount of the mortgage. A similar claim was made for $160,000 involving another mortgage to a third party who did not receive the mortgage. I accept that this matter was important to Mr. Kooner given the amount of money involved.
[124] Mr. Verbeek seeks payment for this file of $2,690.17 in the invoice dated August 11, 2018. Mr. Verbeek billed 3.2 hours at a rate of $575 per hour. His time was used to receive instructions from Mr. Kooner, review documents, and to conduct title and execution searches. Mr. Verbeek also prepared two Statements of Claim, reviewed them with Mr. Kooner, and had them issued in Brampton. The Statements of Claim were filed as part of the trial record. I am satisfied that the time spent doing all of this work was reasonable.
[125] Mr. Kooner suggested Mr. Verbeek caused him damages because he did not provide the Statements of Claim to Mr. Kooner as he claimed. Mr. Kooner relies on the account invoice which states, “[H]ave the Claim served on the Defendants” to support his assertion that Mr. Verbeek did not provide him with the Statements of Claim.
[126] I prefer Mr. Verbeek’s evidence that he prepared the Statements of Claim and provided them to Mr. Kooner. The invoice also states, “[P]roviding you with copies of the Statements of Claim in order that you could serve the claims on Tolulope Adewumi.” Mr. Verbeek explained that he knew it would be difficult to locate Mr. Adewumi because the police were looking for him. Mr. Kooner told Mr. Verbeek that Mr. Adewumi still had contact with him, so it made sense for Mr. Kooner to serve the Statements of Claim. Otherwise, it would be very difficult using a regular process server.
[127] In addition, Mr. Kooner’s evidence at trial that he did not receive the Statements of Claim is inconsistent with his evidence at the discovery where he admitted receiving the Statements of Claim. I, therefore, prefer Mr. Verbeek’s evidence on this point.
[128] I also find it was reasonable to file two separate Statements of Claim as there were two different mortgage transactions involving two different third parties.
[129] The disbursements were reasonable. They included a Terraview fee, issuing the Statements of Claim, an LSO surcharge, and photocopying.
[130] Mr. Kooner therefore owes the amount of $2,690.17 for this file.
363 Grace Street, Toronto (Construction Lien)
[131] Mr. Verbeek claims Mr. Kooner owes $1,700.37 for this file, based on the invoice dated November 10, 2018.
[132] Mr. Kooner states this invoice was never sent to him and that Mr. Verbeek did nothing on this file.
[133] In the Grace Street matter, the plaintiffs sought from Mr. Kooner $192,000 for materials and labour expenses and $50,000 for breach of contract, as well as an order that the property be sold. Mr. Verbeek stated he worked 2.5 hours on this file at an hourly rate of $575. Mr. Verbeek stated he met with Mr. Kooner to discuss the lack of progress on the renovations on the property that Mr. Kooner had already paid for in full. He wrote a letter to the construction company telling them to leave the jobsite, he examined title of the property, and determined a lien had been put on the property. Mr. Verbeek testified he had a conversation with Mr. Kooner about the fact that the lien had not been perfected within the required time. He reviewed the Statement of Claim that was served on Mr. Kooner by the plaintiffs.
[134] Mr. Verbeek discussed strategy with Mr. Kooner to have the action dismissed and the lien discharged. There were several communications with counsel for the plaintiffs, who agreed not to note Mr. Kooner in default for not preparing a Statement of Defence. The strategy was to complete cross-examinations and hopefully delay the proceedings until the statute of limitations for the action expired.
[135] I find Mr. Verbeek worked on this file. He sent a letter to the plaintiffs. I am also satisfied that strategy discussions were held with Mr. Kooner given the detail Mr. Verbeek provided with respect to the strategy. However, I do not find that the 2.5 hours billed on this file is reasonable for this amount of work. I am of the view that 1.5 hours is more reasonable. No Statement of Defence was filed in this matter. Mr. Verbeek reviewed the Statement of Claim, discussed a litigation strategy, and sent one letter. I am therefore reducing the bill by one hour. The only disbursement was the Terraview charge, which was reasonable.
[136] I do not find that the discrepancy between Mr. Verbeek’s affidavit and the bill undermines Mr. Verbeek’s credibility. It was clearly a typographical error. Mr. Verbeek’s affidavit states that the amount owing is $1,737.00. The invoice is for $1,700.37.
[137] I do not accept Mr. Kooner’s evidence that Mr. Verbeek did not follow his instructions to remove the lien, and that this caused him damages. Mr. Verbeek explained the strategy he put to Mr. Kooner. It was a reasonable strategy. Mr. Verbeek stated that initially Mr. Kooner wanted to remove the lien but then agreed with the litigation strategy. Mr. Verbeek testified they could bring a motion to remove the lien at any time.
[138] I find that Mr. Kooner’s email sent on October 4, 2018, stating that Mr. Verbeek caused him damages because the lien was not removed, was self-serving. Mr. Verbeek responded promptly to Mr. Kooner on October 5, 2018, stating that if Mr. Kooner wanted the lien removed, they could do so by next week. This response is consistent with Mr. Verbeek’s evidence that if if Mr. Kooner wanted the lien removed it could have been done at any time.
[139] Mr. Kooner therefore owes Mr. Verbeek $1,050.62 for this file ($1,700.37 - $575.00 for one hour - $74.75 HST).
1215 Lowrie Street, Innisfil (Mortgage Enforcement)
[140] On August 14, 2018, Mr. Verbeek billed Mr. Kooner $8,607.90 for mortgage enforcement proceedings in this matter. The legal fees totaled $7,861.96 and disbursements were $745.94. The amount of the unpaid mortgage was $87,036.97.
[141] The work done on the account is summarized as follows:
August 14, 2018
TO receiving instructions from yourself, to reviewing documents, compiling amounts owing, conduct subsearch of title, completing execution search, drafting and issuing Notice of Sale Under Mortgage, preparation of registered mail receipts, attendance at Canada Post office
2.8 hours @ $575.00 $1,610.00
HST 209.30
TO communications with client, consultations with respect to further enforcement, compiling updated amounts owing
.9 hrs @ $575.00 517.50
HST 67.27
TO receiving instructions to prepare Statement of Claim, to drafting Statement of Claim for Possession, preparation of material, review Statement of Claim with client, amend Statement of Claim, draft and review same, have the Claim issued in Brampton, have the Claim served preparation of Affidavit of Service, including all communications and consultations to date
3.6 hrs @ $575.00 2,070.00
HST 269.10
TO receiving Statement of Defence, to review of same with you, to obtaining and reviewing documents with respect to allegations in Statement of Defence;
2.2 Hours @ $575.00 $1,265.00
HST 164.45
TO communicating with the Town of Innisfil tax department to obtain status of property tax payments and communication with Home Trust, the first mortgagee to obtain status of first mortgage payments;
.9 hours @ $575.00 $517.50
HST 67.27
TO communicate with insurance company regarding verifications of insurance
.6 hours @ $575.00 345.00
HST 44.85
TO Preparation of statement of Account, review of file
1.1 Hours @575.00 632.50
HST 82.22
[142] I do not find it appropriate for counsel to charge for preparing registered mail receipts and attending Canada Post. That is not legal work. I am deducting 0.5 hours (plus HST) of Mr. Verbeek’s time on this file for these tasks. All of the disbursements appear reasonable.
[143] I also find the total time of 9.5 hours is slightly unreasonable for meeting with the client, preparing the Statement of Claim, and reviewing the Statement of Defence. I am therefore reducing the fees by a further one hour.
[144] In addition, I find the amount charged to communicate with the insurance company, Town of Innisfil, and Home Trust unreasonable. The bill totaled 1.5 hours for this purpose, and I am deducting one hour.
[145] The costs for the disbursements are reasonable.
[146] Mr. Kooner therefore owes $6,983.52 on this file ($8,607.90 – $1,437.50 for 2.5 hours – $186.88 HST).
430 Brock Street (Mortgage Enforcement File)
[147] Mr. Verbeek seeks $7,434.92 for this file in the bill dated September 18, 2018. The legal fees totaled $6,764.48 and the disbursements were $670.44.
[148] The work done on is file was similar to the Lowrie Street file, with some expected differences as each mortgage enforcement is likely to have slightly different issues. The summary of the account is set out below:
September 18, 2018
TO receiving instructions from yourself, to reviewing documents, compiling amounts owing, conduct subsearch of title, completing execution search, drafting and issuing Notice of Sale Under Mortgage, preparation of registered mail receipts, attendance at Canada Post office
2.6 hours @ $575.00 $1,495.00
HST 194.35
TO communications with client, consultations with respect to further enforcement, compiling updated amounts owing
.6 hours @$575.00 345.00
HST 44.85
TO receiving instructions to prepare Statement of Claim, to drafting Statement of Claim for Possession, preparation of material, review Statement of Claim with client, amend Statement of Claim, draft and review same, have the Claim issued in Brampton, have the Claim served preparation of Affidavit of Service, including all communications and consultations to date;
2.9 hours @ $575.00 1,667.50
HST 216.77
TO review of statement of defense with client, review of file regarding issues raised in Defence, to meeting with client to discuss waiting to proceed with a motion for summary judgement to see how Kazembe’s office proceeded with the Augustin matters, to numerous communications with you regarding the matter, including obtaining documents from Moodi’s office to explain various payments under the mortgage being claimed in the statement of defence, to communications with the first mortgagee, to verifying that property taxes were up to date, to communications with Kazembe’s office;
3.8 Hours @ $575.00 2,185.00
HST 284.05
TO Preparation of statement of account, review of file
.6 hours @575.00 345.50
HST 26.46
[149] As with the last file, I do not find it appropriate that counsel bill for preparing registered mail receipts and attending Canada Post. I am therefore deducting 0.5 hours from the bill for that purpose.
[150] I also find that the 9.9 hours to prepare the Statement of Claim, review the Statement of Defence, and communicate with various parties is slightly unreasonable. I am deducting a further one hour from the bill. All of the disbursements appear reasonable.
[151] Mr. Kooner therefore owes $6,460.29 for this file ($7,434.92 – $862.50 for 1.5 hours – $112.13 HST).
Raleigh Avenue Property (2nd and 3rd Mortgage Enforcement File)
[152] These files involved mortgage enforcement on a second and third mortgage at 205B Raleigh Avenue, Toronto. The amount owing on the second mortgage, as of March 16, 2018, was $77,268.09. The amount owing on the third mortgage was approximately $49,000. Mr. Verbeek billed Mr. Kooner in four separate bills.
[153] The two bills from May 8, 2018, deal with the second and third mortgage enforcement. The work done on each mortgage is similar to the work done on the Lowrie Street and Brock Street files.
[154] The May 2018 bill for the enforcement of the second mortgage was $9,332.58. The legal fees totaled $8,706.64 and disbursements were $625.94. The account is summarized as follows:
2nd Mortgage May 8, 2018
TO receiving instructions from yourself, to reviewing documents, compiling amounts owing, conducting subsearch of title, completing execution search, drafting, and issuing Notice of Sale Under Mortgage, preparation of registered mail receipts, attendance at Canada Post office
2.8 hours @ $575.00 $1,610.00
HST 209.30
TO communicating with client, consultations with respect to further enforcement, compiling updated amounts owing
.9 hrs @ $575.00 517.50
HST 67.27
TO receiving instructions to prepare Statement of Claim, to drafting Statement of Claim for Possession, preparation of material, Review Statement of Claim with client, amend Statement of Claim, draft and review same, have the Claim issued in Brampton, have the Claim served preparation of Affidavit of Service including all communications and consultations to date
3.6 hrs @ $575.00 2,070.00
HST 269.10
TO receiving Statement of Defence with client, review of same with yourself, to following up on required documentation, to review the same;
2.2 hours @ $575.00 $1,265.00
HST 164.45
TO communications with first mortgagee Equity Financial Trust Company regarding potential outstanding arrears to sending correspondent to Equity Financial;
1.4 hours @ $575.00 $805.00
HST 104.65
TO communications with City of Toronto regarding property taxes, to ordering tax certificate, to communications with client;
1.1 hours @ $575.00 $632.50
HST 82.22
TO Preparation of statement of account, review of file
1.4. Hours @575.00 805.00
HST 104.65
[155] The account for the third mortgage, which totaled $7,578.26 ($6,952.32 legal fees and $625.94 disbursements), reads as follows:
3rd Mortgage May 8, 2018
TO receiving instructions from yourself, to reviewing documents, compiling amounts owing, conducting subsearch of title, completing execution search, drafting, and issuing Notice of Sale Under Mortgage, preparation of registered mail receipts, attendance at Canada Post office
2.8 hours @ $575.00 $1,610.00
HST 209.30
TO communicating with client, consultations with respect to further enforcement, compiling updated amounts owing
.9 hrs @ $575.00 517.50
HST 67.27
TO receiving instructions to prepare Statement of Claim, to drafting Statement of Claim for Possession, preparation of material, Review Statement of Claim with client, amend Statement of Claim, draft and review same, have the Claim issued in Brampton, have the Claim served preparation of Affidavit of Service including all communications and consultations to date
3.6 hrs @ $575.00 2,070.00
HST 269.10
TO receiving Statement of Defence with client, review of same with yourself, to following up on required documentation, to review the same;
2.2 hours @ $575.00 $1,265.00
HST 164.45
TO Preparation of statement of account, review of file
1.2 hours @575.00 690.00
HST 89.70
[156] I have serious concerns about these two bills. It does not make sense that the time spent consulting, reviewing documents, communicating, preparing the Statements of Claim, and reviewing the Statements of Defence, is the same on both files. The mortgage enforcement files are related to the same property and the same parties are involved. There had to have been some economy of scale when discussing these files and preparing the Statements of Claim.
[157] In addition, I find that it is unreasonable that Mr. Verbeek spent 1.4 hours communicating with Equity Financing and 1.1 hours communicating with the City of Toronto.
[158] I am therefore deducting 5 hours from the second mortgage bill to reflect the efficiency of scale that had to exist in the two files, as well as for the unreasonable time spent communicating with Equity Financing and the City of Toronto.
[159] Counsel also charged for preparing mail registrations and attending Canada Post and I am therefore deducted .5 of an hour for each bill.
[160] Mr. Kooner therefore owes $5,758.95 ($9,332.58 - $3,162.50 for 5.5 hours - $411.13 HST) on the May 8, 2018, bill dealing with the second mortgage.
[161] Mr. Kooner therefore owes $7,253.38 ($7,578.26 - $287.50 for 0.5 hours - $37.38 HST) on the May 8, 2018, bill dealing with the third mortgage.
[162] The defendants in the matter sought to defend the two actions. The next bill, dated September 14, 2018, deals with the preparation for and examinations for discoveries of Mr. Kooner and Marlin Marsh.
[163] The bill reads as follows:
September 14, 2018
| DATE | DESCRIPTION | HOURS | AMOUNT |
|---|---|---|---|
| Aug-24-18 | Attendance in Taking Instructions (No Charge); Attendance in reviewing file and assisting in reply material (No Charge); Attendance in reviewing file and preparation for your cross-examination; | 2.50 | 1,375.00 |
| Attendance in preparing for your cross-examination Marlin Marsh; | 2.50 | 1,375.00 | |
| Attendance at your cross examination for Marlin Marsh; | 4.00 | 2,200.00 | |
| Attendance in preparation of your cross examination (Jaswant Kooner); | 1.50 | 825.00 | |
| Cross Examination of Affidavits for Jaswant Kooner | 3.00 | 1,650.00 | |
| Totals | Totals GST on Fees | 13.50 | $7,425.00 965.25 |
[164] It appears that on this bill Mr. Verbeek charged $550 per hour, although no hourly rate is set out. I am not sure why this is the case given that in the previous bills the hourly amount is clearly stated. Regardless, the lower amount benefits Mr. Kooner.
[165] I find the 4 hours preparing for Mr. Kooner’s cross-examination to be reasonable, given that Mr. Kooner was cross-examined for over two hours. I am also prepared to find that 2.5 hours preparing for Marlin Marsh’s cross-examination was not unreasonable.
[166] I do take issue with Mr. Verbeek’s charge of 4 hours for attending the cross-examination of Marlin Marsh. Based on the evidence before me, Marlin Marsh was cross-examined on August 24, 2018, from 10:38 a.m. to 11:42 a.m. That is slightly more than 1 hour. 2.5 hours shall be deducted from the bill.
[167] Mr. Kooner was cross-examined on August 15, 2018, from 10:46 a.m. until 1:16 p.m. Mr. Rotman was present. The amount charged was for 3 hours. I am satisfied that 3 hours is reasonable.
[168] The disbursements appear to be reasonable.
[169] The amount owing on the September 14, 2018, bill is therefore $7,808.64 ($9,362.39 - $1,375.00 for 2.5 hours - $178.75 HST).
[170] The final bill is dated October 12, 2018. The amount of legal fees owing for this bill is $24,800 plus HST. The bill reads as follows:
October 12, 2018
| DATE | DESCRIPTION | HOURS | AMOUNT | LAWYER |
|---|---|---|---|---|
| Sep-27-18 | Attendance in Research | 8.00 | 4,800.00 | PCV |
| Attendance in Drafting Factum | 10.00 | 6,000.00 | PCV | |
| Attendance in Preparation of Case Book | 0.50 | 300.00 | PCV | |
| Attendance in discussions with Marsh’s solicitor | 0.30 | 180.00 | PCV | |
| Attendance in Correspondence | 0.20 | 120.00 | PCV | |
| Attendance in Preparation for Hearing | 9.00 | 5,400.00 | PCV | |
| Attendance for Counsel Fee at Motion | 0.00 | 8,000.00 | PCV | |
| Totals | Totals GST on Fees | 28.00 | $24,800.00 3,224.00 |
[171] This bill relates to the two summary judgment motions brought by Mr. Kooner. He was successful on both summary judgment motions. Mr. Rotman appeared with a junior lawyer, Y. Jaimangal. Mr. Verbeek did not appear on the motions. The motions, heard the same day, commenced at approximately 10:30 a.m. and concluded at 2:20 p.m. Inn addition to proving that the amounts were owed on the mortgages, Mr. Rotman had to respond to the defendant’s submission that there was an oral agreement superseding the written agreement as it related to the second mortgage.
[172] Given the legal issues raised in the summary judgments, I take no issue with the reasonableness of the hours spent researching, writing facta, and preparing for the hearing.
[173] I do, however, have two concerns with the October 12, 2018, bill that I will address.
[174] First, I have concerns with the hourly rate being charged. Mr. Verbeek testified he had a discussion with Mr. Kooner about the hourly rate. It was clear to Mr. Kooner in the May 8, 2018, bills that the rate was $575 per hour. There is no evidence before me that there was an additional conversation prior to October 12, 2018, when Mr. Verbeek advised Mr. Kooner that his hourly rate had increased to $600 per hour.
[175] Mr. Verbeek was also asked his hourly rate in his examination in chief, and he testified it is currently $595. In all of the circumstances, I do not accept that Mr. Kooner was aware the hourly rate had increased, nor do I find the hourly rate of $600 at that time to be reasonable, given what Mr. Verbeek is currently charging. The entire bill will be varied on this basis.
[176] The second concern I have with the bill is that there is a flat fee for the attendance of counsel on the motion. There is no evidence before me that there was ever a discussion about a flat fee being charged or that a junior lawyer would attend. As such, the proper amount to charge is 4.5 hours for the presence of one counsel attending court in person. The total is therefore $2,587.50 for the attendance at the motion.
[177] Applying a rate of $575 per hour, the October 12, 2018 bill shall be as follows:
| Description | Hours | Amount ($) |
|---|---|---|
| Attendance in research | 8.00 | 4,600.00 |
| Attendance in drafting factum | 10.00 | 5,750.00 |
| Attendance in preparation of Case book | 0.5 | 287.50 |
| Attendance in discussions with Marsh’s solicitor | 0.3 | 172.50 |
| Attendance in Correspondence | 0.2 | 115.00 |
| Attendance in preparation for hearing | 9.00 | 5,175.00 |
| Attendance for counsel’s fee at motion | 4.5 | 2,587.50 |
| Subtotal: | 33.00 | 18,687.50 |
| HST: | 2,466.75 | |
| Disbursements: | 182.60 | |
| Total Owing: | 21,336.85 |
[178] I understand that $15,000 is currently being held in Mr. DiMonte’s trust account to be paid towards this bill.
Pre/Post Judgment Interest
[179] The Mr. Verbeek also seeks prejudgment and post-judgment interest in accordance with the Solicitors Act.
[180] The Solicitors Act, at s. 3, provides that where the retainer is in not in issue, the matter will proceed by an assessment. In this case, the retainer was in issue, so the matter proceeded by way of an action.
[181] As explained in Walker & Taylor v. Boers (1999), 1999 CanLII 19909 (ON CA), 46 O.R. (3d) 372 (C.A.), at para. 34, where “the proceeding is conducted by a judge, prejudgment interest will fall to be dealt with under s. 128 of the Courts of Justice Act.”
[182] Section 128(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43, (“CJA”) states that a person who is entitled to payment of money is entitled to an award of interest at a prejudgment interest rate, “calculated from the date of the cause of action arose to the date of the order.” I am satisfied that the date that should be used to determine when the cause of action arose is January 1, 2019. There is no indication on any of the bills of when payment is required. It is clear by January 1, 2019, that Mr. Kooner was not going to pay the bills as requested.
Conclusion
[183] The total owed by Mr. Kooner for legal services provided is $59,342.45. The amounts owed for the various bills is broken down as follows:
| Date | Address | Amount ($) |
|---|---|---|
| May 8, 2018 | Raleigh Avenue (2nd Mortgage) | 5,758.95 |
| May 8, 2018 | Raleigh Avenue (3rd Mortgage) | 7,253.38 |
| August 11, 2018 | Tolulope Adewumi | 2,690.17 |
| August 14, 2018 | 1215 Lowrie Street, Innisfil | 6,983.52 |
| September 14, 2018 | Raleigh Avenue (examinations for discovery) | 7,808.64 |
| September 18, 2018 | 430 Brock Street, Whitby | 6,460.29 |
| October 12, 2018 | Raleigh Avenue (summary judgments) | 21,336.85 |
| November 10, 2018 | 363 Grace Street, Toronto | 1,050.62 |
| SUBTOTAL | 59,342.42 | |
| Less Payment | (6,000.00) | |
| Less Monies in Trust | (15,000.00) | |
| TOTAL OWING | 38,342.42 |
[184] Mr. Kooner has paid $6,000 so the amount outstanding is $53,342.45. $15,000 is currently held in trust. I order that the $15,000 that is currently held in trust be paid to Mr. Verbeek. Mr. Kooner is therefore ordered to pay $38,342.42 to Mr. Verbeek within 30 days of receipt of this judgment.
[185] Prejudgment interest is awarded pursuant to s. 128 of the CJA at a rate of 2%.
[186] Post judgment interest is awarded in accordance with s. 129 of the CJA at a rate of 3%.
Costs
[187] The parties are encouraged to work out the costs of this trial. If the parties are unable to resolve the issue of costs, Mr. Verbeek shall serve and file written submissions of no more than two pages, double spaced, twelve-point font, with relevant case law, a detailed bill of costs, and any offers to settle within ten days of receipt of this endorsement.
[188] Mr. Kooner may file a response consisting of written submissions of no more than two pages, double spaced, twelve-point font, with relevant case law and a detailed bill of costs, if not already provided, and any offers to settle within ten days receipt of Mr. Verbeek’s submissions.
[189] Mr. Verbeek may file a one-page reply, double spaced, twelve-point font, within five days of receipt of Mr. Kooner’s submissions on costs.
Dennison J.
Released: November 29, 2021
COURT FILE NO.: CV-19-00000025-00
DATE: 2021 11 29
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E N:
Peter Verbeek carrying of business as VERBEEK & VERBEEK
Plaintiff
- and -
Jaswant Singh Kooner
Defendant
REASONS FOR JUDGMENT
Dennison J.
Released: November 29, 2021