Court File and Parties

Court File No.: CV-19-616994 Date: 2023-05-16 Superior Court of Justice - Ontario

Re: Adina Isenberg, Appellant – and – Gardiner Roberts, Respondent

Before: E.M. Morgan, J.

Counsel: Domenic Saverino, for the Appellant Eli Bordman, for the Respondent

Heard: May 12, 2023

Assessment Appeal

[1] The Appellant brings an Appeal of the Report and Certificate of Assessment issued by Assessment Officer Charlotte Chiba on July 19, 2021. The Report and Certificate followed a three-day Assessment hearing commenced by the Appellant as client of the Respondent.

[2] The Respondent was successful in proving its account. After hearing the evidence, the Officer found the full amount of the account - $99,024.76 – proven by the Respondent. After factoring in a payment of $27,152.48 by the Appellant, she held that there is $71,872 outstanding on the account. The Officer also awarded the Respondent costs of the Assessment in the amount of $8,000, for a total of $79,872.28 payable by the Appellant.

[3] For the reasons that follow, the Appeal is dismissed.

I. Motion to quash

[4] The Respondent starts with a preliminary motion to quash the Appeal based on a number of potentially significant defects.

[5] First, there were problems with the Notice of Appeal. The Appellant at first served a Notice of Appeal dated July 28, 2021, but that Notice was deficient to the extent that it was unrecognizable as commencing an appeal. It was not in the form of a Notice of Motion and, contrary to Rule 62.01(3) of the Rules of Civil Procedure, did not set a hearing date within 7 days or any reasonable date thereafter.

[6] The Appellant never did serve a Notice of Appeal naming a hearing date. In fact, neither the Appellant nor any lawyer on her behalf contacted the Respondent to schedule a hearing date, and so the Appellant never put herself in a position to serve a proper Notice of Appeal with a hearing date.

[7] After a lapse of six months from the time the defective Notice of Appeal was served, during which time the Respondent had no communication from the Appellant regarding a hearing date, the Respondent took the initiative and advised the Appellant that it would be bringing a motion to dismiss the appeal or quash the faulty Notice of Appeal. Respondent’s counsel indicated that the grounds for the motion would be undue delay and deficient notice.

[8] The Respondent received no response from the Appellant, and proceeded to bring the present motion to quash. At the hearing before me, counsel for the Appellant explained that he was retained for the Appeal, but became preoccupied at that time with the terminal illness of his mother. He said that during her period of intense illness, he was unable to be as attentive to emails and other correspondence from Appellant’s counsel than he otherwise would have been.

[9] I accept Appellant’s counsel’s explanation of the delay and his non-responsiveness for several months leading up to the Appeal. He was undergoing a personal situation with which anyone could sympathize. The Rules of Civil Procedure are flexible enough for me to say that attending to one’s ailing mother trumps a procedural delay of this duration.

[10] Respondent’s counsel may have been justifiably perturbed by the non-responsiveness of the Appellant at the time, but having heard the explanation from Appellant’s counsel could have softened their approach to this particular aspect of their argument. I will say as an aside that, coincidentally, the hearing before me took place on the Friday before the Mother’s Day weekend. In any case, I would neither admonish Appellant’s counsel for his inattentiveness during a personally difficult period, nor would I take his personal circumstance out on his client by quashing the Appeal on that ground.

[11] After recovering from this personal and family crisis, Appellant’s counsel did take proper steps to move the Appeal forward. He ordered transcripts from the Assessment hearing and, in April 2022, ordered a transcript of the oral decision of the Assessment Officer.

[12] Apparently, the transcripts of one of the three hearing days were not available from the Assessment Office. Counsel for the Appellant has obtained transcripts of the first two days, but has been unable to provide a transcript of the third and final day of the hearing.

[13] It would seem that the record in Appeal also does not contain the documentary record that was in evidence at the Assessment hearing. Respondent’s counsel takes issue with this, and contends that this adds to the procedural defects engaged in this Appeal.

[14] Appellant’s counsel points out that the series of accounts rendered by the Respondent during the course of its retainer, along with the transcripts of the Assessment hearing and oral reasons for judgment of the Assessment Officer, are all that is necessary for the Appeal. He points out that the record at the Assessment contained 7,800 documents – no doubt emblematic of the complexity of the matter for which the Appellant had retained the Respondent in the first place. That quantity of documents would have been far too much for an appeal court to consider.

[15] Respondent’s counsel submits that the Appeal should be dismissed on the basis of the delay and the shortcomings of the record. Citing the decision of Borins J. (as he then was) in The Menkes Corporation v. CBL Investments (1994), 17 OR (3d) 47 (Gen Div), Respondent’s counsel submits that this Court has inherent jurisdiction to control its own process and to dismiss for inordinate delay. While I do not doubt that as a matter of law, under the circumstances I would be reluctant to do so.

[16] As for the lack of the evidentiary record filed in this Appeal, I would not dismiss the Appeal on that ground. However, as Respondent’s counsel notes, one of the grounds of appeal is that the Officer’s decision was not based on the evidence before her. That point cannot be properly argued without the evidence having been filed, as there is nothing to examine to determine whether the evidence supports the Officer’s findings.

[17] Further, Respondent’s counsel points out that section 17 of the Courts of Justice Act, R.S.O. 1990, c. C.43, requires an objection to be raised before the Assessment Officer before an appeal to the Superior Court of Justice is available. The rationale for this procedure is to provide the Assessment Officer with an opportunity to reconsider and review her Assessment in light of the objection and, potentially, to amend her decision and certificate.

[18] Ordinarily it would be an error for this Court to allow the appeal to proceed without objections having been filed: RZCD Law Firm LLP v. Williams, 2016 ONSC 2122, at para 39 (Div Ct). However, Appellant’s counsel points out that the Assessment Officer never mentioned to the Appellant that she was now being afforded a chance to express her objection. Since the Appellant was at that point self-represented, she was unaware that she would have to articulate her objection for the record in order to preserve her appeal.

[19] Rule 1.04 of the Rules of Civil Procedure directs the Court to ensure that procedural rules are “ liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.” None of the procedural issues creates prejudice for the Respondent, but strictly enforcing them under the circumstances would create unfairness and injustice to the Appellant.

[20] I will therefore allow the Appeal to go ahead despite the various procedural matters raised by Respondent’s counsel.

II. The Appeal on its merits

[21] That said, in substance there appears to me to be little to no merit to the appeal. While the transcript of the hearing is, as indicated above, incomplete, the transcript of the Officer’s oral reasons for decision is intact and in the record. The Assessment Officer commented that the matter for which the Respondent represented the Appellant was a complex piece of Commercial List litigation which was handled competently and professionally by the Respondent’s firm members.

[22] The heart of the ruling, however, comes when the Officer turned her mind to the issue of credibility. To make a somewhat long story short, she finds the Respondent entirely credible and the Appellant not.

[23] Since the reasons were delivered orally and seemingly without a written script, they tend to meander from point to point; for that reason I have reproduced the Assessment Officer’s most succinct summary of the credibility issue, in which she compares the two parties in back-to-back sentences. The Officer’s assessment is positive with respect to the Respondent and its members, and distinctly negative with respect to the Appellant. The Officer went out of her way to describe the Appellant’s lack of honesty and truthfulness.

[24] At page 56 of the Assessment reasons, the Officer states:

With regard to the lawyers, Soma Ray E1lis and Kevin Fisher, who testified to prove their accounts to be fair and reasonable, I found them to be credible witnesses. Each presented their evidence in an honest straightforward and consistent manner- And the evidence was supported by the documentary materials, carefully tabbed, that they submitted into evidence. And they were able to address reasonably and satisfactorily all the substantive issues and concerns raised not only by the client, Ms. Isenberg, regarding the lega1 accounts and services, but all the questions that I had during the course of the hearing.

As for the client, Ms. Isenberg, while she presented as an intelligent and relatively alert witness, despite her unfortunate, and longstanding and ongoing health and medical problems, I did not find her evidence reliable, credible or trustworthy.

[25] In Rabbani v. Niagara (Regional Municipality), 2012 ONCA 280 at para 6, the Court of Appeal confirmed that an Assessment Officer’s decision is entitled to deference. That is particularly the case where an important finding by the Officer hearing the matter involved the credibility of a party.

[26] This Appeal, therefore, is not an opportunity for the Court to reconsider the Assessment and come to its own conclusion. Absent an error in law, misapprehension of the evidence, palpable and overriding error on a factual matter, or an Assessment amount that is so unreasonable as to constitute an error in principle, the court will not interfere with the Assessment decision.

[27] A review of the transcript establishes that the Assessment Officer treated the Appellant fairly. The Appellant was self-represented at the hearing. Despite what the Appellant contends, the transcripts show that the Officer was careful to provide her with ample opportunity to present her evidence and make her case. While the Assessment Officer did encourage the Appellant to proceed more quickly when the hearing got bogged down, this does not appear to have been done in an oppressive way. The Officer offered the Appellant numerous health breaks during the hearing and, in general, was appropriately accommodating of the Appellant’s needs.

[28] I will observe that Assessment hearings are not trials. Rather, they are inquisitorial proceedings and Assessment Officers have broad discretion in conducting their hearings: Lala v. Basman Smith LLP, 2017 ONCA 614, at para 16. While the procedure cannot be such as to undermine natural justice, procedural fairness is generally only infringed if the Assessment Officer exercised her discretion in an unreasonable or non-judicious fashion: Senjule v. LSUC, 2013 ONSC 2817, at para 22. I see no sign of that here.

[29] For the most part, the Appellant has argued that the Respondent’s rates were simply too high. However, the rates charged were never raised as an issue at the Assessment hearing. The Appellant never indicated that she was not aware of the rates charged, or that she objected to the rates charged. She does say that she was surprised at the size of one of the accounts rendered, but there is no real suggestion that the accounts did not reflect the work done.

[30] As I suggested to Appellant’s counsel at the hearing before me, if the documentary record were before the Court it might well illustrate why the Appellant ought not to have been surprised at the account rendered by the Respondent at the most intensive time of their representation of her. While one or two of them may have been more than what the Appellant expected, the Officer concluded that the accounts were reasonable for the work done.

[31] In general, the Officer considered the Respondent’s accounts holistically and approved them. It was an altogether reasonable assessment. There was no error in principle, no absence or excess of jurisdiction, and no patent misapprehension of the evidence: RZCD Law Firm, supra, at paras 47-48.

[32] During the course of the Appellant’s cross-examination, she disclosed that she owns property in her maiden name, Adina Erem and her alias, Adina Erem Isenberg. It is the Respondent’s counsel’s view that the title of the within proceedings should be amended to reflect these names. The Assessment Officer advised that she had no jurisdiction to amend the title of proceedings.

[33] On the other hand, this Court does have such authority under Rule 5.04(2) of the Rules of Civil Procedure to amend the title of proceedings by adding or correcting a party’s name. I note that it was the Appellant who commenced the Assessment proceedings, and so it was she who created the title with only one of her several names. Respondent’s counsel are not correcting their own error here, they are correcting the Appellant’s way of naming herself in this proceeding.

[34] In my view, there is prejudice to the Respondent if an Order is not made that includes all of the Appellant’s known names.

III. Disposition

[35] Respondent’s preliminary motion to quash is dismissed. The Appeal itself is also dismissed.

[36] The title of proceedings is amended to ADINA ISENBERG aka ADINA EREM aka ADINA EREM ISENBERG v. GARDINER ROBERTS LLP.

[37] There will be an Order to go as submitted by counsel for the Respondents. There is no need to obtain the Appellant’s consent as to form and content of the Order.

IV. Costs

[38] Although the Respondent was not successful on its preliminary motion, it was successful in the Appeal overall. It deserves costs.

[39] The parties have each submitted a Costs Outline. It is fair to say that they are far apart. Counsel for the Respondent seeks a total of $36,436 on a partial indemnity basis. This strikes me as surprisingly high, considering that there was no evidence for the Respondent to submit. There was, of course, a need to review the transcripts of the Assessment hearing and to research the law and write a factum, not to mention to appear at the two-hour hearing of the Appeal. But it is nevertheless a rather large pill for the Appellant to have to swallow at this point.

[40] While I do not doubt that the time reflected in this Costs Outline was well spent, I am directed under Rule 57.01(1)(0.b) of the Rules of Civil Procedure to take into account the expectations of the opposing side. Here, I have no doubt that the Appellant would be surprised at the size of the Respondent’s request.

[41] On the other side of the coin, counsel for the Appellant submits a Costs Outline in which he would seek $4,152.75 on a partial indemnity basis. This strikes me as surprisingly low, considering that there was a three-day evidentiary hearing and lengthy oral reasons for judgment to review, legal issues to research both on the procedural challenge brought by the Respondent and on the merits of the Appeal. Appellant’s counsel had to write a factum and to appear at the two-hour Appeal hearing. It is hard to see how all of this could realistically be accomplished in so few hours.

[42] While I do not doubt that Appellant’s counsel was sparing in the time he invested in this Appeal, I am directed under Rule 57.01(1)(0.a) of the Rules of Civil Procedure to take into account the principle of compensation for the successful party. Here, I have no doubt that a costs award in the range of the Appellant’s request would not come close to providing realistic compensation for the expense incurred by the Respondent.

[43] Costs are always discretionary under section 131 of the Courts of Justice Act. Given the gap between the parties and the mixed result of the motion and the Appeal, I will exercise my discretion to award costs to the Respondent at slightly less than the mid-point between them.

[44] Using round numbers for convenience, the Appellant shall pay the Respondent costs of the Appeal in the all-inclusive amount of $20,000.

Date: May 16, 2023 Morgan J.