Court File and Parties
Court File No.: CV-17-73321 Date: 2022-07-26 Superior Court of Justice – Ontario
Re: MBC Law Professional Corporation, Applicant/Responding party And: Shane Adsett, Respondent/Moving party
Before: Madam Justice Robyn M. Ryan Bell
Counsel: J. Alden Christian and N. Scott, for the Applicant/Responding party Victoria L. Boddy, for the Respondent/Moving party
Heard: July 21, 2022
Endorsement
Overview
[1] Shane Adsett moves for an order to extend the time to bring a motion to oppose confirmation of the Report and Certificate of Assessment of Assessment Officer Bender dated May 15, 2019 (the “Certificate”). Mr. Adsett also seeks an order staying the enforcement of the Certificate pending determination of the motion to oppose confirmation.
[2] For the following reasons, Mr. Adsett’s motion to extend the time to bring his motion is dismissed.
Chronology and procedural history
[3] Mr. Adsett was the director of Adcor Construction Inc. In May 2014, Adcor commenced a construction lien action. The defendants to that action counterclaimed against Adcor and Mr. Adsett personally. Ultimately, the construction lien action settled in March 2017. On April 10, 2017, the law firm sent its final account dated April 6, 2017 addressed to “Shane Adsett, Adcor Construction.” The law firm sent a further copy of the account, “properly addressed”, to “Shane Adsett and Adcor Construction” on May 24, 2017.
[4] Adcor was assigned into bankruptcy on July 13, 2017.
[5] The law firm obtained an order for assessment and a notice of appointment for assessment with respect to its April 6, 2017 account. The parties first appeared before the assessment officer on September 5, 2017. The matter was adjourned at Mr. Adsett’s request so that he could retain counsel and, if so advised, bring a motion to challenge the validity of the retainer with the law firm.
[6] The assessment hearing was further adjourned in November 2017, December 2017, and January 2018. Ultimately, the law firm moved for a determination of Mr. Adsett’s liability for the law firm’s account dated April 6, 2017.
[7] The law firm’s motion was heard by me on August 2, 2018. My endorsement reads:
These proceedings were commenced in July 2017 by order obtained by the solicitors for [assessment] of costs under s. 3 of the Solicitors Act. There have been 2 attendances before the assessment officer. On Jan[uary] 15, 2018, Mr. Adsett first advised that he disputed the retainer on behalf of himself, personally (as opposed to his corporation, Adcor).
The facts associated with the underlying action can be stated briefly: Adcor retained MBC Law to commence an action against owners of property and the construction mortgagee – that was in May 2014.
On Sept[ember] 12, 2014, a statement of defence and counterclaim was received, naming both Adcor and Mr. Adsett. The evidence before me confirms MBC Law obtained instructions from Mr. Adsett to accept service on Mr. Adsett’s behalf, personally.
There is also evidence in the record that settlement advice was provided to Mr. Adsett in relation to him personally (see e.g., p. 2 of Ex. G) and Mr. Adsett responded to that specific advice. The matter was ultimately settled on behalf of all parties, including Mr. Adsett.
Mr. Christian seeks an order that this matter (i.e. the assessment) be heard by a judge or, alternatively, a declaration that there was a valid retainer between the law firm and Mr. Adsett personally and that the matter then be determined by the Assessment Officer.
Mr. Adsett filed his affidavit sworn July 27, 2018. In it, Mr. Adsett denies the retainer but then goes on to give evidence that will be relevant on the assessment of the account – not whether there was a retainer in the first place. There will, no doubt, need to be evidence called on the assessment regarding what work was done; however, that is not the issue before me.
A retainer need not be in writing – RZCD v. Williams, 2015 ONSC 1792.
The evidence before me establishes that Mr. Adsett knew the counterclaim was against him personally and that he authorized the law firm to accept service on his behalf. I am satisfied based on the communications included in the record that Mr. Adsett knew and authorized MBC Law to act on his behalf in the litigation. They clearly did so in providing him with advice – [with respect to] him personally – as to an offer. Mr. Adsett agreed with that advice. The emails establish and I find that the law firm sought instructions both [with respect to] the action and the defence and [counterclaim] as against both Adcor and Mr. Adsett. Mr. Adsett provided instructions on behalf of his company and himself. I am also satisfied that Mr. Adsett was aware that he would be billed for the time spent by the law firm [with respect to] the file.
Accordingly, I declare that there was a valid retainer between MBC Law and Mr. Adsett to represent Mr. Adsett in his personal capacity in C[ourt] Action 14-60914 and that this matter be placed before the Assessment Officer to assess the account dated April 6, 2017.
No order as to costs.
[8] The order for assessment names the law firm as the applicant and Mr. Adsett as the respondent. The order states:
IT IS ORDERED THAT the bill of fees, charges and disbursements delivered by the said solicitor(s) to Shane Adsett, a copy of which is attached hereto [April 6, 2017], be referred to the assessment officer at Ottawa Courthouse…to be assessed.
[9] The assessment hearing proceeded on March 18 and May 15, 2019. The parties to the assessment were the law firm and Mr. Adsett. On May 15, 2019, the assessment officer found that a total of $34,906.75 was owed by Mr. Adsett to the law firm.
[10] The Certificate was served on Mr. Adsett on June 25, 2019.
[11] On July 5, 2019, Mr. Adsett scheduled a motion to oppose the confirmation. The date scheduled for the hearing of the motion was October 11, 2019. Mr. Adsett wrote an email to the law firm in which he stated, “I will deliver my motion materials to you shortly.”
[12] Contrary to his email, Mr. Adsett did not deliver any motion materials. He did not deliver a notice of motion. As a result, the motion date was vacated.
[13] In December 2019, Mr. Adsett prepared a notice of appeal from the assessment officer’s decision. Mr. Adsett did not file his notice of appeal. The motion date of March 25, 2020 was cancelled. Mr. Adsett states that he believed his motion date was adjourned due to the COVID-19 pandemic; however, it is also the case that Mr. Adsett again filed no materials in support of his motion.
[14] In October 2020, Mr. Adsett contacted the triage judge to inquire about an in-person hearing. Mr. Adsett states that he did not receive a response.
[15] In May 2021, the law firm wrote to Mr. Adsett requesting that he reschedule his motion within the next week, failing which the law firm would execute on its judgment. Mr. Adsett then retained counsel who advised the law firm on May 10, 2021, that she would be in touch about scheduling the motion as soon as possible. Counsel confirmed her retainer on May 31, 2021 and stated she would be taking steps to reschedule Mr. Adsett’s motion.
[16] In February 2022, Mr. Adsett served his motion record for this hearing.
Issues
[17] There are two issues I must determine:
(i) should Mr. Adsett be granted an extension of time to bring a motion opposing confirmation of the Certificate; and
(ii) if so, should a stay of execution pending determination of that motion be granted.
Should an extension of time be granted?
[18] Rule 54.09(3) of the Rules of Civil Procedure[^1] requires that a notice of motion to oppose confirmation of a report and certificate of assessment must (i) set out the grounds for opposing confirmation; (ii) be served within 15 days after a copy of the report, with proof of service, has been filed; and (iii) name the first available hearing date that is at least three days after the service of the notice of motion.
[19] Rule 3.02 of the Rules provides that the court may extend or abridge any time prescribed by the Rules on such terms as are just.
[20] A motion to oppose an assessment officer’s certificate is in the nature of an appeal. As such, a court will only interfere with the decision of an assessment officer if there is absence or excess of jurisdiction, there has been some error in principle, or there has been some patent misapprehension of the evidence: Calin A. Lawrynowicz Barristers & Solicitors v. Marino Estate.[^2]
[21] In my view, the test for extending the time for filing a motion to oppose confirmation of a report and certificate of assessment is similar to the test for extending the time for filing a notice of appeal. In Monteith v. Monteith,[^3] MacPherson J.A. cited the five factors listed by Gillese J.A. in Rizzi v. Mavros:[^4]
(i) whether the…appellant formed an intention to appeal within the relevant period;
(ii) the length of the delay and explanation for the delay;
(iii) any prejudice to the respondent;
(iv) the merits of the appeal; and,
(v) whether the “justice of the case” requires it.
(i) Did Mr. Adsett form an intention to oppose the Certificate within the relevant period?
[22] Mr. Adsett acted promptly in scheduling the hearing of his motion to oppose: he did so within 10 days of being served with the Certificate. He did not, however, file his notice of motion to oppose in a timely manner. As an explanation for his delay, Mr. Adsett emphasizes that he was, at the time, self-represented, and that he was only recently informed by his current counsel that to reserve a motion date in Ottawa, he was required to file his notice of motion with the court within 10 days of reserving the motion date.
[23] I do not accept Mr. Adsett’s explanation. While Mr. Adsett may not have been aware of the 10-day requirement, he was clearly aware of the requirement to serve a timely notice of motion under r. 54.09: in his correspondence with the law firm, he stated “I will deliver my motion materials to you shortly.”
[24] Mr. Adsett admits that he was served with the Certificate on June 25, 2019. The Certificate expressly refers to r. 54.09: “[s]ubject to confirmation of this report in accordance with the Solicitors Act and R. 54.09 of the Rules of Civil Procedure, the amount found due herein bears interest at 5%/yr from this date.”
[25] While it may be difficult to do so, self-represented parties are still required to determine their obligations, and then comply with the Rules of Civil Procedure: Gharib v. Mohos.[^5] Mr. Adsett had some familiarity with the Rules given his reference to them in his email correspondence of May 13, 2019.
[26] I also note that Mr. Adsett had the benefit of advice from a “friend”, described by Mr. Adsett as someone who “used to practi[s]e law but no longer [holds] a valid license.” In an email exchange on June 27, 2019 between Mr. Adsett’s assistant and Mr. Adsett’s friend, the friend requests “[l]et me know the date and time you decide with the motions coordinator please, as I have to include in the notice of motion.”
[27] I agree with Leach J. in Farzana v. Abdul-Hamid[^6] that the intention to pursue an appeal – in this case a motion to oppose,
must connote something more than merely keeping a ‘foot in the appellate door’ to block its complete closure, while simultaneously taking absolutely no steps to move forward through that appellate door unless and until its final closure is threatened.
[28] In this case, I conclude that Mr. Adsett was doing nothing more than keeping his foot in the appellate door and took no meaningful steps to move his motion forward until the law firm wrote to him in May 2021, requesting that he reschedule his motion within the next week, failing which the law firm would execute on its judgment. Even if it could be said that Mr. Adsett formed a timely intention to oppose the Certificate, I conclude that he did not maintain that intention over the period from June 2019 to May 2021.
(ii) The length of the delay and the explanation for the delay
[29] In this case, the delay is inordinate. The assessment officer’s certificate was served in June 2019. This motion was not served until February 2022. While some of the delay can be attributed to the pandemic, there are lengthy delays that are unaccounted for. For example, there was a three-month delay between July 2019 – when the motion date was reserved – and October 2019 – when the motion was to be heard. As I have already explained, I do not accept Mr. Adsett’s explanation for his failure to file his motion materials. His explanation is simply not credible.
[30] There was a delay of approximately five months from October 2019 and March 2020, when the motion was rescheduled to be heard. Mr. Adsett once again failed to file motion materials. There is no credible explanation proffered as to his failure to file his materials a second time.
[31] In August 2020, Mr. Adsett wrote to the court to ask who the triage judge was. After receiving a response from the court, Mr. Adsett wrote a letter six weeks later, on October 1, 2020, asking about the possibility of an in-person hearing. While Mr. Adsett states that he did not receive a response from the court, he provides no explanation why he did nothing for six months. Only when the law firm reached out to him on May 4, 2021, did Mr. Adsett proceed to act by retaining counsel.
[32] On the record before me, the delay between May 2021 and service of this motion in February 2022 has also not been satisfactorily explained.
[33] It is impossible on this record to conclude that Mr. Adsett maintained an intention to pursue his motion to oppose the Certificate. The cumulative delays here are such that they should not be readily countenanced without a compelling explanation. Mr. Adsett’s explanations fall far short of the mark.
(iii) Prejudice to the law firm
[34] As a result of Mr. Adsett’s failure to act in a timely manner, the law firm has been unable to collect on its judgment for three years, in relation to an account rendered more than five years ago.
(iv) Merits of the proposed motion to oppose the Certificate
[35] For purposes of his proposed motion to oppose the Certificate, Mr. Adsett characterizes the assessment officer’s finding as being one of joint and several liability. The assessment officer described her role on the assessment in the following terms:
Mr. Adsett: So may – may I ask a question? So, you have – you have essentially taken Adcor and Shane Adsett as one?
The Court: I have done as Justice Ryan Bell instructed me to do that you are the client and I am to assess the account.
Mr. Adsett: As a whole?
The Court: And that’s what I have done.
[36] The court hearing the motion appealing a certificate of assessment should not retry the matter or interfere with the result unless the reasons demonstrate some error in principle or unless there has been some absence or excess of jurisdiction or some patent misapprehension of the evidence: Calin A. Lawrynowicz Barristers & Solicitors, at para. 94. There was no error in principle by the assessment officer, nor did she act beyond her jurisdiction. She acted under the order for assessment. Mr. Adsett’s objection appears to rest with my order of August 2, 2018, an order that he elected not to appeal.
(v) The justice of the case
[37] In my view, the justice of the case does not support an order extending the time for Mr. Adsett to pursue his motion to oppose the Certificate. As in Farzana, Mr. Adsett has “largely been reactive rather than proactive.” He has not been intent on moving the dispute forward; instead, Mr. Adsett persists in his efforts to relitigate what has already been determined: that is, his liability for the account at issue.
Should a stay be granted?
[38] Without an extension of time, Mr. Adsett will not be able to pursue his motion to oppose the Certificate. It follows that there is no basis upon which to stay the enforcement of the Certificate.
Conclusion
[39] The motion is therefore dismissed.
[40] The law firm is presumptively entitled to its costs of the motion. The law firm has provided its costs outline, which I have not yet reviewed. In the event the parties are unable to agree on costs, they may make written submissions limited to a maximum of three pages. Any additional submissions from the law firm are to be provided by August 9, 2022. Mr. Adsett’s submissions are to be provided by August 23, 2022.
Madam Justice Robyn M. Ryan Bell Date: July 26, 2022
COURT FILE NO.: CV-17-73321 DATE: 2022-07-26
ONTARIO SUPERIOR COURT OF JUSTICE
RE: MBC Law Professional Corporation, Applicant/Responding party AND Shane Adsett, Respondent/Moving party
COUNSEL: J. Alden Christian and N. Scott, for the Applicant/Responding party Victoria L. Boddy, for the Respondent/Moving party
ENDORSEMENT Justice Ryan Bell
Released: July 26, 2022
[^1]: R.R.O. 1990, Reg. 194. [^2]: 2016 ONSC 2065, at para. 91. [^3]: 2010 ONCA 78, at para. 11. [^4]: 2007 ONCA 350, at para. 16. [^5]: 2020 ONSC 1872, at para. 16. [^6]: 2016 ONSC 8071, at para. 21.