Court File and Parties

COURT FILE NO.: CV-22-0435-0000 DATE: February 26, 2024

SUPERIOR COURT OF JUSTICE – ONTARIO 7755 Hurontario Street, Brampton ON L6W 4T6

RE: BLAGGAN, Gaganpreet, Applicant AND: BARNES, Sammon LLP, Respondent GUY, Alana, Respondent

BEFORE: Justice Wilkinson

COUNSEL: Peter Callahan, for the Applicant Kellie Stewart, for the Respondent, Barnes Sammon LLP Alana Guy, Self-represented.

HEARD: January 5, 2024, by video conference

Ruling on Motion

[1] The Respondents, Barnes, Sammon LLP and Alana Guy, each bring a motion to set aside the Report and Certificate of Assessment of Officer Brian Horrocks dated October 23, 2023, in which Assessment Officer Horrocks made a finding that the Respondents were jointly ordered to pay the Applicant, Gaganpreet Blaggan, $22,441.15. The Respondents seek to have this matter remitted back for an assessment to be set at a mutually convenient date.

[2] For the reasons that follow, I find that the October 23, 2023 Report and Certificate of Assessment should be set aside, and that this matter should be referred back to an assessment officer for a fresh assessment, with proper notice to all the parties.

Background

[3] The Applicant, Gaganpreet Blaggan, states in her affidavit that she signed a retainer agreement on August 12, 2021 with Alana Guy and the Barnes, Sammon law firm with respect to her family law litigation. Ms. Blaggan states that based on the language of the retainer agreement, she believed that she was retaining both Ms. Alana Guy as her lawyer, and the Barnes, Sammon law firm where Ms. Guy worked.

[4] Bruce Simpson, a lawyer at the Barnes, Sammon law firm, provides affidavit evidence that lawyers at the firm operate independent of one another, have individual practices, and maintain independent books.

[5] Ms. Blaggan indicates in her affidavit that she sent Ms. Guy an email on December 5, 2021, terminating her services.

[6] Following the termination of Ms. Guy’s retainer, Ms. Blaggan hired her current counsel, Peter Callahan. On February 3, 2022 Ms. Blaggan obtained a Notice of Appointment for Assessment, and an Order for an Assessment against both Barnes, Sammon and Ms. Guy. There is no dispute that these documents were served by email on Ms. Guy and her legal assistant at Barnes, Sammon on February 9, 2022.

[7] During this same time frame, Ms. Blaggan’s family law action was before the Divisional Court, with Mr. Callahan as her counsel. In an email dated February 5, 2022, Ms. Guy communicated with Mr. Callahan, the Court, and lawyers Kellie Stewart and Samuel Zakhour, both from Barnes, Sammon, regarding scheduling for the Divisional Court matter. Bruce Simpson was not included on this email chain.

[8] Ms. Guy’s legal assistant, Heather Lambert, provides affidavit evidence that Ms. Guy joined the Nelligan O’Brien Payne LLP law firm (“Nelligan Law”) in March 2023.

Notification of the September 28, 2023 Pre-Assessment Hearing

[9] Ms. Blaggan states in her affidavit that on July 10, 2023, the court provided her with the date of September 28, 2023 for the pre-assessment hearing. Mr. Callahan then sent an email on the same date to Ms. Guy at her Nelligan Law email address, and also to Bruce Simpson at Barnes, Sammon, notifying them of the pre-assessment hearing date, and providing a copy of the Amended Notice of Appointment for Assessment.

[10] Bruce Simpson provides affidavit evidence that he has been semi-retired since approximately January 2022, and that his main form of communication in his practice is by phone call or in writing, not through email. Mr. Simpson further states in his affidavit that on July 10, 2023, he was on holidays with his wife, and out of the office for most of the summer. He states that he did not see the July 10, 2023 email from Mr. Callahan at the time that it was sent. Mr. Simpson also states in his affidavit that he was not familiar with Ms. Blaggan’s file at that time.

[11] Ms. Blaggan does not provide evidence of a read receipt from Mr. Simpson to indicate that he received and read the July 10, 2023 email from Mr. Callahan.

[12] Mr. Simpson provides additional affidavit evidence that Mr. Callahan did not send emails to Kellie Stewart or Samuel Zakhour, or to any other lawyer at Barnes, Sammon, or to the general information email at Barnes, Sammon, info@barnessammon.ca, to advise of the September 28, 2023 pre-assessment hearing date. Mr. Simpson also states in his affidavit that Ms. Blaggan’s file was no longer at Barnes, Sammon after Ms. Guy left the firm.

[13] There is no dispute that Ms. Guy received the July 10, 2023 email from Mr. Callahan, as her assistant, Ms. Lambert, provides in her affidavit a copy of an email dated July 10, 2023 sent by Ms. Guy to Mr. Callahan which reads:

We will need to adjourn, and my new firm will be need to be retained.

I was not consulted with respect to the date and time. I am out of the country the last two weeks of September.

I was not consulted with respect to the date or time and will be following up with the court and copying your office on the correspondence.

[14] On July 19, 2023, Ms. Guy sent an email to the Brampton court indicating that she was not available to attend the hearing scheduled. This email does not reference the date of the hearing or the court file number.

[15] Ms. Guy subsequently sent an email to Mr. Callahan on July 28, 2023 that stated:

Please provide all emails to the court, and all materials to be relied upon where Barnes Sammon LLP agreed to the date of September or where anyone conferred with your office with respect to that date.

[16] Mr. Callahan does not provide any affidavit evidence that he answered Ms. Guy’s inquiry as to whether Barnes, Sammon had agreed to the September 28, 2023 pre-assessment hearing date. Ms. Guy does not provide any evidence that she followed up again with Mr. Callahan about this issue, or about her adjournment request prior to the September 28, 2023 pre-assessment hearing.

September 28, 2023 Pre-Assessment Hearing

[17] The pre-assessment hearing proceeded in front of Assessment Officer Horrocks. Neither Ms. Guy, nor counsel from Barnes, Sammon, appeared at the hearing. Mr. Callahan provides no evidence to indicate that he informed Mr. Horrocks that Ms. Guy had indicated that she was out of the country at that time. Mr. Horrocks’ endorsement from that date states:

Mr. Callahan requests the matter proceed in the absence of the Respondents. I am satisfied with Service of today's appointment on the Respondents pursuant to the Applicants submissions in Court today, accordingly a half-day (unopposed) hearing is set for October 23, 2023 starting at 2:00 PM.

[18] The endorsement also specifically states that no further notification of the appointment would be sent to Ms. Guy or Barnes, Sammon. Notwithstanding this endorsement, Ms. Blaggan provides a copy of the email that was sent from the Brampton trial office on October 3, 2023 to the parties enclosing the Zoom link for the October 23, 2023 hearing. The email was sent to alana.guy@barnessammon.ca, and to no one else at Barnes, Sammon. The email was not sent to Ms. Guy’s email address at her new firm Nelligan Law.

[19] The October 3, 2023 email from the Brampton trial office specifically states “ENSURE ALL MATERIALS AND ZOOM LINK IS SERVED TO ALL PARTIES. AS WE DO NOT HAVE A EMAIL ADDRESS FOR BARNES SAMMON LLP ON RECORD.”

[20] Neither Ms. Guy nor counsel from Barnes, Sammon appeared at the October 23, 2023 Assessment Hearing. At the conclusion of the hearing, Mr. Horrocks ordered Ms. Guy and Barnes, Sammon to pay Ms. Blaggan $16,377.44, plus pre-judgment interest in the amount of $1,563.71, and costs in the amount of $4,500.00. Mr. Horrocks issued a Report and Certificate indicating that Ms. Guy and Barnes, Sammon jointly owed Ms. Blaggan $22,441.15.

[21] In his ruling, Mr. Horrocks states:

At the previous attendance of this matter on September 28, 2023, the Respondent Law Firm did not attend. Following proof, submitted to the Court by the Applicant, the Respondent received due notice of the proceedings, the Applicant requested the matter proceed in the absence of the Respondent. Accordingly, a Hearing date for today was fixed. The Respondent Law Firm did not attend today's Hearing and the matter proceeded with the Applicant's submissions and evidence.

Notice following the October 23, 2023 Report and Certificate of Assessment

[22] Bruce Simpson provides affidavit evidence that on October 26, 2023, an email was received from Mr. Callahan at the info@barnessammon.ca email address, which contained the Certificate of Assessment, naming both Alana Guy and Barnes, Sammon LLP as Respondents.

[23] Mr. Simpson provides a copy of an email sent from Ms. Stewart to Mr. Callahan on October 26, 2023 requesting that Ms. Blaggan consent to an Order setting aside the Report and Certificate as against Barnes, Sammon. In the email, Ms. Stewart took the position that the Order should be set aside as Ms. Blaggan was not a client of Barnes, Sammon, but rather, was a client of Ms. Guy individually.

[24] The email from Mr. Callahan on October 26, 2023 in response points out that the accounts sent to Ms. Blaggan were from Barnes, Sammon, and further, that Ms. Guy had previously stated that the accounts were not from her, but were in fact from Barnes, Sammon.

[25] On behalf of Barnes, Sammon, Ms. Stewart sent an email to Mr. Callahan on October 27, 2023 requesting dates for this motion.

Position of Barnes Sammon

[26] Barnes, Sammon takes the position that it was not provided with proper notice of the September 28, 2023 pre-assessment hearing, or the October 23, 2023 hearing, and accordingly it has been denied procedural fairness by not having an opportunity to participate at either hearing. It asks that the current assessment order be set aside, and that the matter be referred back for a fresh assessment.

[27] It states that the original email sent on February 9, 2022 to Ms. Guy and her law clerk, Ms. Puglia, cannot be deemed to have been received by Barnes, Sammon, as there is no evidence that any other lawyer at the firm received this email.

[28] Barnes, Sammon also states that it was not sufficient service for the July 10, 2023 email from Mr. Callahan to be sent to only Bruce Simpson at the firm, and no other email address. It notes that Ms. Stewart and Mr. Zakhour had already been involved with Mr. Callahan at the Divisional Court regarding this file, and could easily have been sent an email notifying them of the September 28, 2023 pre-assessment hearing date.

[29] Barnes, Sammon also points out that Mr. Callahan did not send an email to the Barnes, Sammon general information email address at info@barnessammon.ca to advise as to the hearing date, yet once Assessment Officer Horrocks released the decision on October 23, 2023, Mr. Callahan sent it to info@barnessammon.ca. Barnes, Sammon states that there was no explanation provided as to why the notice of the pre-assessment hearing was not sent to the Barnes, Sammon general email info on July 10, 2023. It also submits that the fact that Mr. Callahan does not provide a copy of a read receipt with respect to the July 10, 2023 email sent to Mr. Simpson is further proof that Mr. Simpson had not read the email, and was not aware of the September 28, 2023 hearing date.

[30] Barnes, Sammon submits that at the September 28 attendance, Mr. Callahan was aware that Ms. Guy was not in the country and had asked for an adjournment, but there is no evidence to suggest that Mr. Callahan informed the assessment officer of Ms. Guy’s request.

[31] It also points out that when the Brampton court sent the hearing notice on October 3, 2023 to the parties, it was only sent to alana.guy@barnessammon.ca, which meant that no one from Barnes, Sammon was aware of the October 23 hearing, as at that point Ms. Guy no longer worked at Barnes, Sammon. It takes the position that the email from the Brampton trial office requiring Mr. Callahan to serve the materials and the zoom link to all parties added to Mr. Callahan’s responsibility as an officer of the court to ensure that Barnes, Sammon and Ms. Guy received adequate notice of the October 23, 2023 hearing.

[32] Barnes, Sammon also states that the endorsement itself from October 23, 2023 is factually incorrect, as the legal fees paid by Ms. Blaggan were paid to Ms. Guy, not to Barnes, Sammon. It submits that there is a genuine issue for trial to determine if Barnes, Sammon was included in Ms. Blaggan’s retainer with Ms. Guy, which is beyond the jurisdiction of an assessment officer.

Position of Alana Guy

[33] Ms. Guy also states that she did not receive notification of the October 23, 2023 hearing, and was therefore denied the opportunity to participate in the hearing. Ms. Guy relies upon the same arguments advanced by Barnes, Sammon, and asks that the current assessment order be set aside, and that the matter be referred back for a fresh assessment.

[34] Ms. Guy takes the position that Ms. Blaggan was required to personally serve her with the Notice of the Assessment once she changed law firms.

[35] A large portion of Ms. Guy’s submissions dealt with the history of the family law litigation for which she had been retained to represent Ms. Blaggan. Ms. Guy takes the position that this history is relevant information that ought to have been before the assessment officer before he made his ruling, including the fact that an appeal was pending in the main family law action.

Position of Gaganpreet Blaggan

[36] On behalf of Ms. Blaggan, Mr. Callahan submits that the argument now being advanced that the assessment officer did not have the jurisdiction to address issues related to the terms of the retainer between Ms. Blaggan, Ms. Guy and the Barnes, Sammon law firm is not an issue that is properly before me. Mr. Callahan states that this issue was not included as ground for the relief sought in the notice of motion.

[37] Mr. Callahan further submits that the Order for assessment obtained in February 2022 was properly served on Ms. Guy and the Barnes, Sammon firm, as Ms. Guy was still working at the firm at that time. He states that it was his expectation that Ms. Guy would inform others at the firm that Ms. Blaggan was moving forward with an assessment of the account.

[38] Mr. Callahan also argues that there is no question that Ms. Guy received his July 10, 2023 email, and that she had notice of the September 28, 2023 pre-assessment hearing date. He therefore argues the email was properly served.

[39] Mr. Callahan further states that once Ms. Guy confirmed she had received the July 10, 2023 email, he expected her to advise Barnes, Sammon of the pre-assessment date due to the collegiality of the bar in Ottawa.

[40] Mr. Callahan also submits that the assessment officer was satisfied with the service of the notice on both Ms. Guy and Barnes, Sammon and reflects this fact in his endorsement. Mr. Callahan states that neither Respondent has appealed this finding from the assessment officer.

[41] Mr. Callahan also argues that notwithstanding being aware of the September 28, 2023 pre-assessment hearing, Ms. Guy did not take sufficient steps to advise the court that she was not available to attend a hearing on that date.

[42] Mr. Callahan submits that the corporate relationship between Ms. Guy and the Barnes, Sammon firm is not relevant for today’s motion. He states that the issue to be addressed today is procedural fairness. He takes the position that an assessment is not an originating process, and accordingly, personal service regarding the assessment date is not required.

Legal Principles

[43] A Notice of Assessment is not an originating process, and therefore does not require personal service. A lawyer needs to receive “due notice” of the assessment. (See Nelligan, O'Brien, Payne LLP v. Fontaine, at paras. 17-19).

[44] Rule 7.2-1.1 of the Law Society of Ontario’s Rules of Professional Conduct states:

A lawyer shall agree to reasonable requests concerning trial dates, adjournments, the waiver of procedural formalities, and similar matters that do not prejudice the rights of the client.

[45] 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. If there is a dispute with respect to the lawyer’s retainer, an assessment officer does not have jurisdiction to proceed with the assessment (Ledroit v. Rooplall, 2011 ONSC 2751, at paras. 31 and 33).

[46] The process for opposing the confirmation of the certificate of an assessment officer is set out in Rule 54.09(3)(a) of the Rules of Civil Procedure, which provides that a notice of motion to oppose confirmation of a report shall set out the grounds for opposing confirmation of the report.

[47] A motion to oppose an assessment officer’s certificate is in the nature of an appeal. The court is concerned only with errors in principle, and not mere questions of amount, unless the amounts are so inappropriate as to suggest an error in principle; thus, the decision of the assessment officer can be disturbed only if: (a) there is absence or excess of jurisdiction; (b) there has been some error in principle; or (c) there has been some patent misapprehension of the evidence (RZCD Law Firm LLP v. Williams, 2016 ONSC 2122, at para. 46).

[48] When an appeal is about the assessment officer’s jurisdiction, including an appeal about the principle upon which the assessment proceeded or the fairness or natural justice of the assessment procedure rather than an appeal about particular items, then the appeal may proceed without objections having been made to the assessment officer (RZCD Law Firm LLP v. Williams, 2016 ONSC 2122, at para. 34).

Analysis

[49] The issue before me is straightforward. There is no need me for me to address the merits of Ms. Blaggan’s claim, or any of the history of her family law litigation. The real issue before me is to determine if Ms. Guy and Barnes, Sammon were provided with adequate notice of the September 28, 2023 pre-assessment hearing date.

[50] The fact that Ms. Guy received the February 9, 2022 Notice of Assessment simply means that she was aware that Ms. Blaggan intended to assess the account. As Ms. Guy was still working at Barnes, Sammon at the time, it could be argued that Barnes, Sammon also received the February 9, 2022 email, particularly when the independence of Ms. Guy’s legal practice from Barnes, Sammon may not have been known to Ms. Blaggan. But given Mr. Callahan’s concurrent involvement with Ms. Stewart and Mr. Zakhour from the firm regarding Ms. Blaggan’s Divisional Court matter, he ought to have included them in the February 9, 2022 email.

[51] Mr. Callahan was not required to personally serve Ms. Guy with notice of the September 28 or October 23 hearings. However, he was aware that Ms. Guy was not available to attend the September 28 hearing, but did not take any steps to advise the assessment officer of her request for an adjournment. In my view, this is a breach of Rule 7.2-1.1 of the Rules of Professional Conduct.

[52] Ms. Guy ought to have followed up with the trial office to ensure that it received notice of her adjournment request, or alternatively sent an agent to the September 28 hearing to ensure that the assessment officer was aware of her scheduling conflict. However, this failure on her part does not excuse Mr. Callahan from his failure to inform the assessment officer of her inability to attend which she had previously made known to him.

[53] Co-operation between counsel is essential to ensure that the justice system moves efficiently and fairly. There is no place in the system for legal representatives to refuse to accommodate adjournment requests that do not cause prejudice to their clients. Mr. Callahan presents no evidence to suggest that Ms. Blaggan would have been prejudiced by an adjournment of the hearing. Mr. Callahan ought to have attempted to accommodate Ms. Guy’s adjournment request.

[54] Mr. Callahan’s failure to ensure that Barnes, Sammon was advised of the September 28 pre-hearing date is even more troubling. At the time he attended the September 28 hearing, he had heard nothing from Barnes, Sammon, and knew that Ms. Blaggan had only served one lawyer at the firm with notice of the hearing; Bruce Simpson, a lawyer who was not actively involved with the file.

[55] I accept Mr. Simpson’s evidence that at the time that the email was sent, he was away on vacation and did not frequently check his email. Mr. Callahan does not provide evidence of a read receipt confirming that Mr. Simpson saw the email. I find that Mr. Simpson did not see the July 10, 2023 email, and was therefore unaware of the September 28, 2023 hearing.

[56] It is noteworthy that the endorsement from Assessment Officer Horrocks confirms that he made a finding that the Respondents had been properly served with notice of the hearing based on proof submitted by the Applicant that the Respondent had received due notice of the proceedings. He also indicates that the Applicant requested that the matter proceed in the absence of the Respondents.

[57] Mr. Callahan knew that Ms. Guy was out of the country on September 28, and he also knew, or ought to have known, that he chose not to send the email to Barnes, Sammon advising of the September 28 hearing date to its general email address, and instead, with no explanation, sent the email only to Bruce Simpson. Despite knowing these facts, on September 28 Mr. Callahan encouraged the assessment officer to set a hearing date to allow the matter to proceed without participation from the Respondents. In addition, the fact that he chose to serve the July 10, 2023 email to only Mr. Simpson, but yet after the hearing chose to serve the order from the assessment officer on the general email address for the firm is concerning. He offers no explanation as to why the July 10, 2023 email was not sent to the general email address for the firm.

[58] It is also important to consider that the October 3, 2023 email from the Brampton trial office specifically instructed Mr. Callahan to ensure that all parties were served with the motion materials and Zoom link, as no email address for Barnes, Sammon had been provided. The email from the trial office was not sent to Ms. Guy’s email address at Nelligan Law, nor to anyone at Barnes, Sammon. Mr. Callahan provides no evidence that he took any additional steps to notify Ms. Guy’s office or Barnes, Sammon of the October 23, 2023 hearing date, notwithstanding the court’s specific instruction for him to do so.

[59] It is not good enough for Mr. Callahan to state that he was relying upon the collegiality of the Ottawa bar to ensure that Ms. Guy informed Barnes, Sammon of the hearing date. It was the Applicant’s obligation to provide Barnes, Sammon with due notice of the September hearing. This was not done.

[60] The endorsement from the assessment officer indicates that he waited thirty minutes on September 28, 2023 for the Respondents to attend. Mr. Callahan could certainly have made a phone call to Barnes, Sammon and Ms. Guy’s office within that thirty-minute time frame to inquire if they were going to attend the hearing. He chose not to do so.

[61] The failure of the Respondents to include an appeal of the assessment officer’s finding that they had been properly served with the notice of the hearing in the Notice of Motion is not fatal to Respondents’ motion to set aside the decision of Assessment Officer Horrocks. I find that the Respondents complied with Rule 54.09(3)(a) by setting out the grounds for opposing the confirmation of the report in their respective Notices of Motion. It is clear that the Respondents were seeking to set aside the Certificate and Report from the assessment officer due to their lack of awareness of the assessment hearing date.

Conclusion

[62] I find that neither Ms. Guy nor Barnes, Sammon were provided with adequate notice of the October 23, 2023 hearing, and that as a result, both parties have been denied procedural fairness. Both parties ought to have the opportunity to present their cases before an assessment officer before a determination is made. I therefore direct that the October 23, 2023 Certificate and Report of Assessment Officer Horrocks be set aside, and that the matter proceed by way of a fresh assessment hearing.

[63] Having already determined that the Certificate and Report of Assessment Officer Horrocks will be set aside, there is no need for me to address the issue raised by Barnes, Sammon that the assessment officer did not have jurisdiction to consider the Application given the dispute between the parties regarding the retainer. When this matter proceeds to the fresh assessment, the parties are free to raise this issue in front of the assessment officer hearing the case.

Costs

[64] The Respondents, Ms. Guy and Barnes, Sammon, may each prepare cost submissions no longer than 2 pages double spaced, not including any Offers to Settle or Bills of Costs, to be served on the Applicant, Ms. Blaggan, by March 15, 2024. Ms. Blaggan may file a joint response to the Respondents’ cost submissions no longer than three pages double spaced within fifteen days of receiving both of the Respondents’ cost submissions. No reply submissions are to be filed unless requested by me. If I have not received the cost submissions within these time frames, I make no order as to costs.

Released: February 26, 2024