Court File and Parties

COURT FILE NO.: CV-19-619403-0000

DATE: 20211215

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: henry qaqish, Applicant/Client

AND:

romano law firm professional corporation, Respondent/Solicitor

BEFORE: S.F. Dunphy J.

COUNSEL: Peter Waldmann, for the Applicant/Client

Joseph Romano, Respondent/Solicitor

READ at Toronto: December 15, 2021

REASONS FOR DECISION

[1] On August 17, 2021, I made the following endorsement in response to an application to Civil Practice Court to schedule a hearing before a judge to assess a number of accounts rendered by the applicant’s former lawyer:

This is an application to assess costs from a contingent fee arrangement that has already been struck down as unenforceable. After striking out the contingent fee arrangement, Faieta J. ordered that the assessment proceed but did not order it before a judge. There being no valid contingent arrangement in place, I am aware of no reason why this is not in front of an assessment officer. If counsel has a basis on which to submit this must be heard by a judge he may put reasons in writing before me within seven days. Unless I am satisfied as to the basis for proceeding before a judge by an in-writing application made within seven days, this matter will not be scheduled before a judge and the parties shall stand directed to proceed to assess in the usual way before an assessment officer.

[2] The applicant produced written submissions dated August 17, 2021 as directed. Unfortunately, these were sent to the wrong mailbox and went astray. They have been found and directed to me today.

[3] I have reviewed the written submissions and the additional materials forwarded along with them and confirm my decision that the requested assessment must be heard by an assessment officer and not a judge.

[4] The applicant has now provided me with a copy the order of Faieta J. dated December 17, 2019 which makes the point quite explicitly clear. In that order, Faeita J. declared the retainer agreement between the solicitor and the applicant client to be unenforceable. That means precisely what it says. Neither the nature, validity nor effect of the contingency fee arrangement are at issue in the assessment since it has already been declared unenforceable. The cser of Henricks-Hunter v. 814888 Ontario Inc. (Phoenix Concert Theatre), 2012 ONCA 496 cited by the applicant simply has no application. If the contingent fee arrangement is declared to be unenforceable, the fees are to be assessed “in the normal manner” as the Court of Appeal noted in paragraph 9 of Henricks-Hunter.

[5] More directly to the point, paragraph 1 of the order directed “a reference for assessment of the accounts dated September 16, 2016 and May 7, 2018”. Those accounts thus already stand referred to the assessment officer: Solicitors Act, s. 6(8).

[6] The application to schedule a hearing before a judge was misconceived and no such hearing will be scheduled. This matter has already been referred to an assessment officer and must be processed there.

S.F. Dunphy J.

Date: December 15, 2021