COURT FILE NO.: CV-22-0159-00, CV-22-0197-00 DATE: 2023-06-27
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
CV-0159-00 Andrey Pinsky Self rep, for the Applicant Applicant
- and -
2479420 Ontario Inc., James Leduchowski and Diane Hachey M. Holervich and C. Gash, for the Respondents Respondents
CV-0197-00 2479420 Ontario Inc., James Leduchowski and Diane Hachey Applicants -and- Andrey Pinsky Respondent
M. Holervich and C. Gash, for the Applicants Self rep, for the Respondent
HEARD: June 16, 2023, at Thunder Bay, Ontario Mr. Justice W. D. Newton
Reasons on Judgment
Overview
[1] A solicitor delivered a bill to a client and commenced an action in this court seeking payment of his account four days later.
[2] The client obtained an order for assessment of the account.
[3] The solicitor moves to consolidate this action with the assessment. The client moves to stay or dismiss the action given that an assessment has been requested.
[4] For the reasons that follow, the action is dismissed and the motion to consolidate is dismissed.
The Solicitors Act
[5] The key provisions of the Solicitors Act [1] (the “Act”) applicable to these motions are:
Solicitors to deliver their bill one month before bringing action for costs
2 (1) No action shall be brought for the recovery of fees, charges or disbursements for business done by a solicitor as such until one month after a bill thereof, subscribed with the proper hand of the solicitor, his or her executor, administrator or assignee or, in the case of a partnership, by one of the partners, either with his or her own name, or with the name of the partnership, has been delivered to the person to be charged therewith, or sent by post to, or left for the person at the person’s office or place of abode, or has been enclosed in or accompanied by a letter subscribed in like manner, referring to such bill. R.S.O. 1990, c. S.15, s. 2 (1).
Order for assessment on requisition
3 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,
(a) by the client, for the delivery and assessment of the solicitor’s bill;
(b) by the client, for the assessment of a bill already delivered, within one month from its delivery;
(c) by the solicitor, for the assessment of a bill already delivered, at any time after the expiration of one month from its delivery, if no order for its assessment has been previously made. R.S.O. 1990, c. S.15, s. 3; 2006, c. 19, Sched. C, s. 1 (1).
Delivery of bill and reference to assessment
6 (1) When a client or other person obtains an order for the delivery and assessment of a solicitor’s bill of fees, charges and disbursements, or a copy thereof, the bill shall be delivered within fourteen days from the service of the order. R.S.O. 1990, c. S.15, s. 6 (1).
No action
(4) The solicitor shall not commence or prosecute any action in respect of the matters referred pending the reference without leave of the court or a judge. R.S.O. 1990, c. S.15, s. 6 (4).
When actions for costs within the month may be allowed
8 A judge of the Superior Court of Justice, on proof to his or her satisfaction that there is probable cause for believing that the party chargeable is about to depart from Ontario, may authorize a solicitor to commence an action for the recovery of his or her fees, charges or disbursements against the party chargeable therewith, although one month has not expired since the delivery of the bill. R.S.O. 1990, c. S.15, s. 8; 1993, c. 27, Sched.; 2006, c. 19, Sched. C, s. 1 (1).[Underline added.]
The Facts
[6] A retainer agreement between Pinksy Law and the company was signed by Mr. Leduchowski on behalf of the company [2] on August 27, 2021. The agreement called for a $3000.00 retainer deposit which was paid.
[7] By email to Ms. Hachey dated April 18, 2022, Pinsky Law sent an “bill for services” for $7912.26 which applied the $3000.00 retainer deposit leaving an outstanding balance of $4912.26. The itemized bill documented services between August 29. 2021 and April 15, 2022.
[8] Mr. Pinsky sent another email to Ms. Hachey on April 20, 2021, at 8:31 a.m. seeking payment.
[9] Later that same day, at 10:20 p.m., Mr. Pinsky sent another email to Ms. Hachey stating:
I will bring a legal action against Mr. Leduchowski, his company and you to collect a full payment of my bill if I am not in receipt of the full payment by 12:00 tomorrow, April 21, 2022. Take note that I will also be collecting from you for my time, necessary disbursements, and court fees that will be required to prosecute my legal action. If you fail to pay my bill in full tomorrow, you will be served with my statement of claim the following week.
[10] Mr. Pinsky issued an action on April 22, 2022, against the company and Mr. Leduchowski and Ms. Hachey.
[11] The company obtained an order for an assessment on May 21, 2022.
[12] A “fresh as amended” statement of claim was issued on June 3, 2022. That statement of claim claims for legal fees, breach of contract and punitive damages. The claim relates only to the outstanding legal fees claimed.
[13] The “fresh as amended” statement of defence dated June 13, 2022, pleads that the existence of the retainer between the plaintiff and the company is not in dispute and pleads that the action was commenced in contravention of section 2(1) of the Solicitors Act, prior to one month after the delivery of the bill.
[14] On July 25, 2022, the parties appeared before the regional assessment officer and the hearing was set for November 17, 2022.
[15] On October 17, 2022, Mr. Pinsky requested an adjournment of the assessment hearing scheduled for November 17, 2022, to allow him to bring a motion to consolidate the assessment with the action. The adjournment was granted.
[16] The notice of motion served by Mr. Pinsky on January 3, 2023, sought:
(a) An Order to consolidate the current Action CV-22-159 and the Notice of Application CV-22-197 brought by the Defendants after commencement of the current Action;
(b) An Order that after the consolidation, the Applicants in the Notice of Application CV-22-197 (the Defendants in the current Action) will continue to be the Defendants in the current Action CV-22-159;
(c) An Order that after the consolidation, the Respondent in the Notice of Application CV-22-197 (the Plaintiff in the current Action) will continue to be the Plaintiff in the current Action CV-22-159;
(d) An Order awarding the costs of this motion to the Plaintiff costs of this motion, and incidental to this motion, plus HST, paid to the Plaintiff by the Defendants, severally and jointly, forthwith. and
(e) Such further and other relief as this Court may deem just and appropriate.
[17] Eventually, on January 27, 2023, the parties ended up in a case conference before Regional Senior Justice Warkentin. The motion had been adjourned. Justice Warkentin directed that Mr. Pinsky’s motion for consolidation be adjourned and set out timelines for the delivery of the two motions: Mr. Pinsky’s motion for consolidation and the respondent’s application for a stay.
[18] Following that endorsement Mr. Pinsky served another notice of motion which, in addition to consolidation, sought:
(a) An Order granting the Plaintiff nunc pro tunc leave to commence this Action to collect his legal fees before expiration of one moth since delivery to the Defendants of the Plaintiff's bill for legal services because:
i. At the time the Plaintiff commenced this Action, the Defendants were about to leave Ontario; and
ii. At the time the Plaintiff commenced this Action, the Plaintiff had special circumstances that did not allow the Plaintiff to wait one month to commence this Action or to seek leave of the Court to commence this Action prior to expiration of one month since delivery of his bill;
(b) A Declaration that the Plaintiff can proceed with this Action without leave of the Court to collect his belongings from the Defendants; [Underline added.]
[19] Justice Warkentin ordered that no further material was to be served on these motions without leave after February 22, 2023.
[20] On February 22, 2023, Mr. Pinsky brought a “fresh as amended” notice of motion to which he added the following relief:
(a) An Order granting the Plaintiff leave to amend his Fresh as Amended Statement of Claim in the form attached as Appendix A to this Fresh as Amended Notice of Motion.
[21] The proposed amendment adds in, for the first time, a claim for personal belongings.
[22] In his Memorandum of Fact And Law filed in support of his motion, Mr. Pinsky stated:
The Defendants also refused to return to the Plaintiff his belongings he left with them for safekeeping.
The Plaintiff brought a legal action against the Defendants to obtain a payment for his services and to recover his belongings from the Defendants. [Underline added.]
[23] The reference to support those facts is Mr. Pinsky’s affidavit, sworn January 3, 2023, paragraphs 97 – 105.
[24] Those paragraphs are as follows:
H. Reasons for Bringing the Action Early
As stated above, on February 24, 2022, Russo Ukrainian war started.
I was born in Eastern Ukraine and my parents, who are in their mid-eighties, still lived in Eastern Ukraine on February 24, 2022.
I originally thought that the war would be a short military operation, but by April 2022, it became clear to me that the war was developing in a full-scale European war.
I had to go to Ukraine and to move my parents out of Ukraine.
I did not know how long I would be outside Canada and when I could return.
It was clear to me that Leduchowski and Hachey decided not to pay for my services and not to compensate me for by belongings I left with them.
In the circumstances, to finance my expenses to travel to Ukraine, I had to gather all financial resources I had.
In the circumstances, to preserve the limitation period of my action, I had to file my action before my departure from Canada, as filing the action from overseas could have been problematic.
For these reasons, the action was filed not after 30 days from April 18, 2022, however, my Statement of Claim is preserving Leduchowski's and Hachey's right to assess my bill and asks the Court to assess the bill during trial of my action.
The Positions of the Parties
[25] Mr. Pinsky argues that the duplication of proceedings favour consolidation in that he has other claims against the respondents.
[26] Alternatively, he argues that special circumstances exist to allow a judge to authorize, nunc pro tunc, the issuance of an action under section 8 of the Act. His affidavit references that he had discussions “during the summer of 2021” about the personal respondents moving to Manitoba. Attached as an exhibit to his affidavit is an email about agricultural property in Manitoba. He also argues that the circumstances set out in paragraphs 97 – 105 of his affidavit, reproduced above, should be considered under section 8 of the Act.
[27] The respondents argue that section 8 requires an application to be made in advance of bringing an action, not after.
[28] The respondents also argue that the action commenced was about the bill, and never about possessions, and that the motion to amend the statement of claim again was not authorized by the Regional Senior Justice. The respondents argue that the addition of this claim for personal possessions is a ploy to bolster Mr. Pinsky’s motion for consolidation.
[29] They argue that the legislature has set out how disputes between solicitors and their clients regarding accounts are to be processed and that, as the retainer is not disputed and there are no special circumstances, the procedure under the Act should not be ousted by Mr. Pinsky bringing an action when he was not authorized by law to do so.
Analysis
[30] The statement of claim as issued on April 22, 2023, and then amended on June 3, 2023, was to collect the account. Mr. Pinsky sued all respondents, not just the company. It is clear from the retainer agreement that the client was the company and not the respondents personally.
[31] The action was not, as Mr. Pinsky states in his Memorandum of Fact and Law, to recover his personal property. That statement is, at a minimum, misleading. While Mr. Pinsky may have a cause of action for the return of his personal property the action as constituted does not include that claim and that claim likely is not against the company in any event.
[32] The endorsement of the Regional Senior Justice did not contemplate such a motion and, I am satisfied, as the respondents argue, that this is a tactic to buttress Mr. Pinsky’s motion for consolidation.
[33] Mr. Pinsky argues that leave should be granted, nunc pro tunc, to allow him to bring an action under section 8 of the Act. No evidence is presented about the personal respondents relocating at the time of the delivery of the account and the commencement of the action. The conversations that Mr. Pinsky referenced occurred in 2021, not 2022.
[34] The reasons set out in his affidavit at paragraphs 97-105 for commencing the action early do not reference anything about the respondents departing Ontario.
[35] Section 8 requires proof “that there is probable cause for believing that the party chargeable is about to depart from Ontario”. I am not satisfied that there was such probable cause. Also, the Act specifies that the authorization is to be obtained prior to the commencement of the action, and not after.
[36] While I am sympathetic to Mr. Pinsky’s personal circumstances involving his family in Ukraine that is not justification for failure to comply with either section 2(1) or 8 of the Act.
[37] The legislature has set out how disputes between solicitors and their clients are to be addressed. An account is to be delivered. No action is to be commenced within 30 days to allow the client to obtain an order for assessment. Here, the client, the company obtained an order for an assessment.
[38] In the circumstances, it is appropriate to dismiss the action as an abuse of process. The action is dismissed. The motion for consolidation or to stay the assessment is dismissed. The motion to further amend the statement of claim was not authorized by the Regional Senior Justice and is also dismissed.
[39] The respondents are entitled to their costs of these motions. I will receive submissions relating to costs within 30 days limited to three pages plus costs outline. Thereafter Mr. Pinsky shall have 10 days to reply, also limited to three pages plus costs outline.
“Original signed by”
The Hon. Mr. Justice W.D. Newton
Released: June 27, 2023
COURT FILE NO.: CV-22-0159-00, CV-22-0197-00 DATE: 2023-06-27 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: Andrey Pinsky Applicant
- and - 2479420 Ontario Inc., James Leduchowski and Diane Hachey Respondents CV-0197-00 2479420 Ontario Inc., James Leduchowski and Diane Hachey Applicants -and- Andrey Pinsky Respondent REASONS ON JUDGMENT Newton J.
Released: June 27, 2023
[1] RSO 1990, C S.15. [2] The signature line on the retainer has typed below it: For 2479420 Ontario Inc James Leduchowski.