COURT FILE NO.: CV-18-00605912-0000

DATE: 20220916

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Vem Yenovkian, Applicant

– AND –

Shirtliff-Hinds Professional Corporation, Respondent

BEFORE: E.M. Morgan J.

COUNSEL: Robert G. Plate, for the Applicant

Fraser Dickson, for the Respondent

HEARD: September 16, 2022

ENDORSEMENT

[1] The Applicant seeks an Order allowing for the assessment of the accounts of the Respondent. An assessment hearing was scheduled to be heard in June 2022, but that date has now passed given the challenge raised in this Application.

[2] The Applicant, who was at the time self-represented, filed a Requisition for Assessment with the Toronto Assessments Office. The receipt for payment of his filing fee is dated September 26, 2018. This receipt indicates that the Requisition was submitted to the Assessments Office in a timely fashion under section 3(b) of the Solicitors Act, RSO 1990, c S 15 – i.e. within 30 days of the final invoice from the Respondent dated September 13, 2018.

[3] On September 26, 2018 – the same date as the filing receipt was issued – the Registrar of the Superior Court of Justice at Toronto issued an Order for an Assessment. That Order states:

IT IS ORDERED THAT the bill of fees, charges and disbursements delivered to the applicant by the said solicitors, a copy of which is attached hereto, be referred to the assessment officer at 330 University Avenue, 7th Floor, Toronto M5G 1R7, to be assessed.

[4] Despite what the Order said, there were no bill of fees, charges and disbursements attached to the Order. The Order otherwise does not indicate which invoice(s) issued by the Respondent were to be assessed.

[5] After some delay, much of which was caused by the COVID-19 pandemic, the Respondent wrote to the Registrar on January 10, 2022 asking for a copy of the Requisition for Assessment. Two days later, on January 12, 2022, the Toronto Assessments Office replied and stated that there was no copy of the Requisition for Assessment in the Assessments Office file and that they would be contacting the Applicant to provide a copy.

[6] At the same time, Respondent’s counsel contacted Applicant’s counsel requesting a copy of the Requisition for Assessment. Counsel for the Applicant responded a day or two later indicating that he, too, had been in touch with the Assessments Office and had likewise been advised that the Assessments Office did not have a copy of the Requisition for Assessment. Mr. Plate noted that he had asked his client for a copy of the Requisition for Assessment and would respond further upon receiving it.

[7] It turns out that the Applicant cannot find a copy of the Requisition for Assessment that he had submitted. Accordingly, the matter was initiated by an Order that was missing some of its attachments and a missing Requisition that would identify those attachments.

[8] In Davies, Ward & Beck v. Union Industries, Inc., 2000 5722, at paras 13 and 17, the Court of Appeal observed that the Registrar has no inherent jurisdiction to issue an Order for Assessment. The Order must flow from a requisition compliant with the Solicitors Act.

[9] The Respondent’s position is that the record before me clearly does not contain a requisition compliant with the Solicitors Act, since there is no requisition in the record at all. Counsel for the Respondent submits that absent such a requisition, the Registrar had no jurisdiction to issue the Order of September 26, 2018. Respondent’s counsel argues that given the absence of a Requisition, the Assessment procedure engaged in by the parties to date is a nullity and the Order for Assessment must be quashed.

[10] Respondent’s counsel further submits that the failure to produce the initial Requisition is more than just a technical defect. He argues that without the attachments to the Order and the Requisition, the Respondent had no way of knowing which of its invoices were subject to the Order. While the Respondent was at various subsequent attendances before an Assessment Officer for scheduling and other procedural purposes made aware of which invoices the Applicant seeks to assess, its counsel is nevertheless of the view that the defective Order and missing Requisition were initially prejudicial to the Respondent.

[11] Counsel for both parties here agree that the court has inherent jurisdiction to overlook the procedural flaws and to order that the Assessment proceed despite the lack of a valid Requisition in the file. The exercise of that inherent jurisdiction, however, is discretionary. Counsel for the Respondent submits that there is good reason to refrain from exercising that discretion here, while counsel for the Applicant submits that this is precisely the kind of case that calls for the court to exercise its discretion to allow the matter to proceed.

[12] Respondent’s counsel contends that the Applicant does not deserve discretionary relief as he has not come to court with “clean hands”. Counsel points to past conduct by the Applicant indicating that he has been an aggressive and uncooperative litigant who has filed vexatious lawsuits against various actors in the judicial system.

[13] Respondent’s counsel points out that this conduct by the Applicant has been commented upon critically by judges presiding in his family law proceedings. Indeed, my colleagues have in several decisions described the Applicant’s conduct in strongly negative terms: see Yenovkian v. Gulian, 2018 ONSC 5331; Yenovkian v. Gulian, 2019 ONSC 7279.

[14] Applicant’s counsel states that the Applicant’s past conduct in other proceedings ought not impact on his right to a solicitor-client assessment. That right, counsel contends, is not to be undermined on a mere technicality, especially given that the Requisition was submitted in a timely fashion. Since there is no question here that the Applicant met the 30-day deadline for submitting the Requisition, there are no grounds for depriving him of his right to assess his former lawyer’s account.

[15] In fact, the Court of Appeal in Price v. Sonsini [2002] 41996 has indicated that judicial discretion is generally to be used to facilitate a client’s assessment of a lawyer’s account:

Public confidence in the administration of justice requires the court to intervene where necessary to protect the client’s right to a fair procedure for the assessment of a solicitor’s bill. As a general matter, if a client objects to the solicitor’s account, the solicitor should facilitate the assessment process rather than frustrating the process…The court has an inherent jurisdiction to control the conduct of solicitors and its own procedures. This inherent jurisdiction may be applied to ensure that a client’s request for an assessment is dealt with fairly and equitably despite procedural gaps or irregularities.

[16] I do understand the Respondent’s concern here. Courts have in the past recognized “the possibility of the occasional obstreperous client in respect of whom the equities would be clearly on the side of the solicitor”: Minkarious v. Abraham, Duggan, 1995 7253 (Ont SC). That said, I am not convinced that this is the type of situation to which that kind of balancing of the equities refers.

[17] The fact is that whatever his conduct might have been like in previous litigation, in this particular instance the Applicant is without fault. The Registrar lost his Requisition form, and there is nothing anyone can now do about that.

[18] The Applicant should not be made to pay the price of the court administration’s shortcoming. It behooves the judicial system to afford him the opportunity to pursue his rights under the Solicitors Act in the same way as any other client of a law firm.

[19] The “obstreperous client” referred to in the case law has to have been obstreperous in the case at bar, and not in previous cases. Otherwise, no one will be able to escape their own poor conduct, which will reverberate forward in undermining their rights in future cases. By analogy to the admissibility rules governing criminal proceedings, discreditable conduct extraneous to the present case, which portrays a litigant as a person of generally bad character, should not be taken into account: R v Handy, 2002 SCC 56, [2002] 2 SCR 908, at para 31.

[20] The Assessment Hearing previously scheduled for June 20-24, 2022 shall proceed on a date to be scheduled by the Assessments Office.

[21] Given that it was the Registrar’s error in losing a crucial document that prompted this Application, there will be no costs awarded for or against either party.

Morgan J.

Date: September 16, 2022