Court File and Parties

Court File No.: CV-21-00003200-0000 Date: 2024-04-04 Superior Court of Justice – Ontario

Between: Cohen Highley LLP, Respondent And: Toshiko Nakano, Appellant

Counsel: Matthew Rynen, for the Respondent Jim Nakano Ding, for the Appellant

Heard: March 25, 2024

Reasons for Decision

CHRISTIE J.

Overview

[1] This litigation relates to a dispute between lawyer and client as to the appropriateness and reasonableness of fees charged. The matter proceeded before Assessment Officer Sellers, following which the legal fees payable were reduced from just over $110,000 down to $80,000.

[2] This is an appeal by Toshiko Nakano, requesting that this court set aside the Report and Certificate of the Assessment Officer, pursuant to s. 17(b) of the Courts of Justice Act, and make its own assessment of the solicitors’ accounts, including costs of the assessment hearing. In summary, the Appellant client argued that the Assessment Officer misapplied the law, failed to consider relevant evidence, and allowed procedural irregularities at her expense and to her prejudice. The Appellant raised a number of grounds of appeal, including denials of procedural fairness, errors of law, palpable and overriding errors of fact, patent misapprehensions of the evidence, and insufficiency of reasons. As a result, with a consideration of the totality of the circumstances, the Appellant argued that this court is well placed to come to its own conclusion of the solicitors’ account and costs of the assessment hearing. In the end result, the Appellant argued that the solicitors’ accounts should be significantly reduced, suggesting something in the range of a 75% reduction of the original $110,000.

[3] The Respondent solicitors argued that there were no palpable and overriding errors of fact, no patent misapprehension of evidence, and that the reasons were sufficient. Having said that, the Respondent argued that there was one error of law in the Assessment Officer’s application of the Evidence Act, specifically, that the Assessment Officer improperly drew an adverse inference due to the fact that some docket-keepers were not in attendance at the assessment hearing. The Respondent argued that this one adverse inference should be reversed, and the amount adjusted in a fair and equitable manner, suggesting something in the range of 12%.

Background Facts

[4] The facts can be briefly summarized.

[5] The Appellant retained Iain Sneddon of Cohen Highley for family law litigation proceedings on or about September 13, 2018. Given that the family law litigation involved commercial matters, the firm’s commercial lawyer, Paul Steacy, also became involved.

[6] The litigation was contentious.

[7] Legal services were primarily performed by Mr. Sneddon, Mr. Steacy, and Jimmy Nakano Ding, an articling student, and later associate lawyer. Mr. Nakano Ding, who is counsel on this appeal for the Appellant, is also the Appellant’s son. Mr. Nakano Ding was an employee at Cohen Highley until July of 2021. In total, services were completed by twelve docket keepers during the retainer.

[8] In August 2021, the Appellant retained new counsel for her litigation matters. Shortly thereafter, the Appellant commenced the assessment proceedings against the Respondent solicitors.

[9] On October 8, 2021, the Respondent solicitors served Notice of Intention Regarding Business Records. The business records to be relied on were 21 invoices from the law firm to the Appellant client.

[10] On October 13, 2021, pre-assessment briefs were delivered by the solicitor, including correspondence, documents and accounts. On the same day, a pre-assessment brief was delivered by the Appellant client.

[11] On November 15, 2021 and January 10, 2022, pre-assessment hearings were held by the Assessment Officer.

[12] On March 11, 2022, assessment hearing briefs were delivered by the Respondent solicitors, including correspondence, documents, and accounts. It is understood that these briefs may have contained some things that were missed in the pre-assessment briefs.

[13] On April 5, 2022, an assessment hearing brief was delivered by the Appellant client.

[14] The assessment hearing occurred on April 11, 12, and 13, 2022.

[15] On December 11, 2022, per the reasons of the Assessment Officer, the solicitors' accounts were reduced from $110,166.81 to $80,000.00, representing a $30,166.81 reduction.

[16] On February 12, 2023, the Appellant provided her objections to the Assessment Officer and the Respondents provided their objections on February 17, 2023.

[17] On March 13, 2023, the Assessment Officer issued reasons in relation to the objections, and held that he did not have jurisdiction to consider the parties' objections, reconsider evidence, or accept new evidence.

[18] From March 13, 2023 to March 22, 2023, the Appellant requested that the Assessment Officer review the parties' objections and provided supporting case law and submissions.

[19] The Assessment Officer rejected the request and refused to review the parties' objections.

[20] On May 3, 2023, the Assessment Officer provided the parties with the Certificate and costs reasons dated April 25, 2023. The Assessment Officer did not award costs to anyone.

[21] On May 9, 2023, the Appellant commenced a motion to set aside the Certificate pursuant to the Assessment Officer's refusal to review the parties' objections.

[22] This motion was heard on July 26, 2023 and, pursuant to the Order of Justice Cameron dated the same day, the Certificate was set aside and the matter was remitted back to the Assessment Officer for his reconsideration in light of the parties' objections.

[23] On October 16, 2023, the Assessment Officer provided his reasons regarding the parties' objections. He held that he did not have the jurisdiction to reconsider any objections relating to errors in law or reconsider "new" evidence, but some of the objections were considered. The Assessment Officer reinstated the Certificate.

[24] On October 23, 2023, the Appellant commenced this appeal.

Areas of Agreement

[25] The parties do agree on some fundamental issues, including:

a. The parties agree that Assessment Officers have broad discretion to control the assessment process, make findings of fact, and weigh evidence.

b. The parties agree on the standard of review, in that the Order of an Assessment Officer is entitled to a great deal of deference. In Rabbani v. Niagara (Regional Municipality), 2012 ONCA 280, the Court stated:

[6] The standard of review on an appeal from an assessment officer's decision is well established. The order below is discretionary. The hearing is an appeal, not an opportunity for the reviewing court to rehear the assessment and come to its own conclusion as to what is reasonable, 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 assessment officer's decision was entitled to considerable deference absent such error. See Samuel Eng & Associates v. Ho, 2009 ONCA 150.

c. The parties agree that this court has the authority and jurisdiction to consider an Appeal from this Order pursuant to s. 17(b) of the Courts of Justice Act.

d. The Assessment Officer erred in law in some respects during the objection phase of the proceedings. Specifically, he erred in unduly limiting the scope of his function, in that he refused to consider the objections made by the Appellant client in relation to the delivery of documents, the Evidence Act, and the Order of Himel J.

e. This court should not send the matter back to the Assessment Officer, but rather should make a determination on the solicitors’ accounts and the hearing costs based on the record presented.

f. Any determination this court makes on the appropriate quantum does not require mathematical precision, rather the determination should be made using a wholistic approach with a consideration of all of the issues.

[26] It should also be noted that, at the outset of this hearing, after some discussion, both parties were willing to have this matter proceed without any consideration by this court of new evidence that was not already before the Assessment Officer.

Analysis

Procedural Issues re: Objections

[27] The Appellant raised two procedural errors in relation to the Assessment Officer’s consideration of the objections:

a. The Assessment Officer did not reconsider the assessment in light of the objections made; and

b. The Assessment Officer did not provide sufficient reasons in light of the objections made.

[28] The Assessment Officer clearly stated that he neither had the authority nor the jurisdiction through the objections to reconsider errors in law, to reconsider issues from the delivery of documents and the Evidence Act, to reconsider “new” evidence, or to relitigate issues previously before the Court. Assessment Officer Sellers stated:

10. If the client objects to an error in law made by the Assessment Officer, it must be done by way of motion to oppose and cannot be reconsidered by this court. It is unequivocal that I do not have the authority nor jurisdiction to reconsider matters of law that must be overturned by the test above. This includes, but is not limited to, issues arising from the delivery of documents of the Solicitor and review thereof within the confines of the Evidence Act.

11. Another consideration of this court is whether the Assessment Officer has the authority to consider or reconsider by way of objection, new issues raised and/or new evidence of a party within an assessment, which in this case, is the endorsement of Justice Himel. The Palmer test considered on appeal speaks to the presiding judicial official, in this case the Assessment Officer, is functus officio, in that I do not have the authority to consider or reconsider evidence that was filed during the hearing, or in this case, new evidence. That must be reviewed and determined by a Judge on appeal.

12. Therefore, the only issues that will be considered within these Reasons is an objection to the findings specifically of this Officer as outlined above. Notwithstanding rule 54.09(3) of the Rules of Civil Procedure, section 6(9) of the Solicitor's Act and the order of Justice Cameron dated July 26, 2023, I have had the opportunity to review the submissions of the parties, the transcript produced by the Client, and my Reasons. Within that review, I am not satisfied with the submissions of the Client that the Court misapprehended or mischaracterized any evidence that would suggest a reconsideration. Additionally, I agree with the submissions of the Solicitor that this is an attempt to relitigate the issues previously before this court expecting a different outcome.

13. All of the documentation and oral testimony were taking into advisement by this Court prior to it rendering its decision. Although it appreciated that the Client may have a different understanding or perception of the same facts, does not suggest that this court views that same opinion. This Court made some adverse findings in favour of the Client, and for that, reduced the accounts by approximately 25%. There were also findings that the work produced was of some value to the Client and therefore a reduction to nil after the consummation of the separation agreement was an unreasonable position and reserved to egregious actions of a Solicitor.

14. Thus, I am not prepared to reconsider the objections of the Client in altering my position and reducing the accounts further. I confirm my original findings and reinstate the Report & Certificate of Assessment previously dated April 25, 2023.

[29] While the Respondent argued that it would make no difference for the end result, they agreed that this was a fundamental misstatement of the Assessment Officer’s role during the objection stage of the assessment hearing.

[30] In RZCD Law Firm L.L.P v. Williams, 2016 ONSC 2122, the court stated:

[30] Section 6(9) of the Solicitors Act provides that a motion to oppose confirmation of the certificate shall be made to a judge of the Superior Court of Justice.

[31] Section 17(b) of the Courts of Justice Act provides for appeals to the Superior Court of Justice from a certificate of assessment in respect of which an objection was served under the Rules of Civil Procedure, Section 17(b) states:

17. An appeal lies to the Superior Court of Justice from, ...

(b) a certificate of assessment of costs issued in a proceeding in the Superior Court of Justice, on an issue in respect of which an objection was served under the rules of court.

[32] Rule 58.11 provides that an appeal under s. 17(b) of the Courts of Justice Act from a certificate of assessment in respect of which an objection was served is governed by rule 62.01 (which is the rule that provides the procedure for appeals from an interlocutory order). Rule 58.11 states:

APPEAL FROM ASSESSMENT

58.11 The time for and the procedure on an appeal under ... 17 (b) ... of the Courts of Justice Act from a certificate of an assessment officer on an issue in respect of which an objection was served is governed by rule 62.01.

[33] As may be noted, appeals or opposition to the confirmation of a certificate of an assessment officer involve the delivery of objections. The procedure with respect to serving objections is a procedure designed to provide the assessment officer with an opportunity to reconsider and review his or her assessment in light of the objections and to amend his or her decision and certificate accordingly. The procedure is set out in rules 58.09 and 58.10, which state:

CERTIFICATE OF ASSESSMENT

58.09 On the assessment of costs, the assessment officer shall set out in a certificate of assessment of costs (Form 58C) the amount of costs assessed and allowed.

OBJECTIONS TO ASSESSMENT

58.10(1) On request, the assessment officer shall withhold the certificate for seven days or such other time as he or she directs, in order to allow a party who is dissatisfied with the decision of the assessment officer to serve objections on every other interested party and file them with the assessment officer, specifying concisely the grounds for the objections.

(2) A party on whom objections have been served may, within seven days after service or such other time as the assessment officer directs, serve a reply to the objections on every other interested party and file it with the assessment officer.

(3) The assessment officer shall then reconsider and review the assessment in view of the objections and reply and may receive further evidence in respect of the objections, and the assessment officer shall decide on the objections and complete the certificate accordingly.

(4) The assessment officer may, and if requested shall, state in writing the reasons for his or her decision on the objections.

See also: Atkinson v. Whaley Estate Litigation, 2023 ONSC 1006, para. 24

[31] Further, in Abbott v. Shah, 2018 ONSC 6758, para. 5, the court made it clear that “the Assessment Officer is expected to be open to changing their mind upon considering the objections. This process is intended to discourage appeals other than those involving matters of real substance ...” Also, in Abbott, at para. 24, the court stated:

[24] …The Rules contemplate objections that go to the merits of the decision and may even involve rearguing matters that were argued on the assessment. Objections are not limited to minor, peripheral, or clerical mistakes. The Assessment Officer treated her decision as one that was so limited. In this, she fell into error. By doing so, she denied the plaintiff a fair hearing and a proper consideration of her objections.

[32] In this court’s view, the Assessment Officer misconstrued his role. The position taken by the Assessment Officer, in light of the objections advanced, resulted in denying the Appellant this internal reconsideration and, therefore, denied the Appellant a fair hearing and proper consideration of the objections.

[33] Rule 58.10(3) of the Rules of Civil Procedure clearly states that assessment officers have the jurisdiction to receive further evidence via the parties’ objections. Given the clear direction given by the Rules, there is absolutely no need for a party to meet the test for fresh evidence as the Assessment Officer stated. Further, it is very clear that the parties may relitigate issues argued at the assessment hearing by way of their objections. In fact, the purpose of this objection mechanism is to discourage appeals by allowing the reconsideration of issues through the process of objections.

[34] This court also finds that the reasons given on the reconsideration are insufficient. In Abbott, the court held:

[31] …The parties are entitled to know why and how certain fees or disbursements are or are not awarded. Reasons serve a purpose. It must explain to the parties, the appellate court, and the public why a decision was made. It does not serve these purposes if they merely lead a party to reasonably believe that an arbitrary deduction was made.

See also: Gibsons LLP v. De Lima, 2022 ONSC 4387, para. 15, where the court held that “there must be a real analysis, not only a conclusory reasoning…”

[35] In Farej v. Fellows, 2022 ONCA 254, the court stated:

[41] Reasons for judgment fully and clearly explaining both the result and the reasons for the result serve several important purposes. Reasons for judgment improve the transparency, accountability and reliability of decision-making, thereby enhancing public confidence in the administration of justice: R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, at para. 5; F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41, at para. 98; R. v. G.F., 2021 SCC 20, 459 D.L.R. (4th) 375, at para. 68; Sagl v. Chubb Insurance Company of Canada, 2009 ONCA 388, [2009] I.L.R. I-4839, at paras. 95-99; Dovbush v. Mouzitchka, 2016 ONCA 381, 131 O.R. (3d) 474, at paras. 20-23.

[42] In the context of the appeal process, however, the focus is not on the overall quality of the reasons given at trial, or the extent to which those reasons serve all of the purposes outlined above. Instead, the focus is on whether the reasons allow the appeal court to engage in a meaningful review of the substantive merits of the decision under appeal….

[45] There is now a deep jurisprudence addressing the sufficiency of reasons as a ground of appeal. The cases repeatedly make two important points. First, the adequacy of reasons must be determined functionally. Do the reasons permit meaningful appellate review? If so, an argument that the reasons are inadequate fails, despite any shortcomings in the reasons. Second, the determination of the adequacy of the reasons is contextual. Context includes the issues raised at trial, the evidence adduced, and the arguments made before the trial judge. For example, if a review of the evidence and arguments indicates that a certain issue played a minor role at trial, the reasons of the trial judge cannot be said to be inadequate because they reflect the minor role assigned to the issue by the parties at trial: Sheppard, at paras. 33, 42 and 46; R. v. Morrissey (1995), 22 O.R. (3d) 514, at p. 525; Dovbush, at para. 23.

[46] In G.F., the Supreme Court of Canada recently cautioned against appellate courts reviewing trial judge’s reasons with an overly critical eye, especially in cases turning on credibility assessment: G.F., at paras. 74-76….

[36] Given the Assessment Officer’s erroneous understanding of his role, the objections seem to have been dismissed out of hand without any meaningful engagement with the issues raised. Frankly, it is not entirely clear exactly which objections the Assessment Officer accepted as properly before him. The reasons in response to the objections are insufficient.

[37] Given the nature of this error, this court would typically return the matter to the Assessment Officer with directions to properly consider the entirety of the objections and to provide fulsome reasons for conclusions reached. However, both parties urged this court not to return the matter to the Assessment Officer given that Cameron J. had already done so, without success, and given that the parties deserve some fairly immediate finality to this matter which has already been going on for some time.

[38] Given the position of the parties, this court engaged in a more thorough analysis of the issues raised. Having engaged in that analysis, this court is satisfied that the Assessment Officer’s original reasons are unassailable. While this court was not satisfied that the Assessment Officer properly engaged with the objections as required, it would not have changed the result. The original reasons are more then sufficient, demonstrating a detailed review of the evidence, credibility issues, and applicable law. There was a reasoned analysis in relation to the assessment of the accounts. Further, the costs reasons were also comprehensive, with a clear consideration and application of the Courts of Justice Act, Rules of Civil Procedure, and Solicitor’s Act.

Evidentiary Issues

[39] The Appellant raised the following evidentiary concerns, which were also raised at the objection stage:

a. The solicitor failed to comply with the Evidence Act in that they failed to produce the intended business records for inspection by the Appellant when requested.

b. Further, the solicitor failed to provide evidence when requested, as prior to the assessment hearing, the Appellant repeatedly requested various documents from the solicitors, including internal correspondence and memos from her file.

[40] There was much correspondence between the Appellant client and the Respondent solicitors about the client obtaining access to her file and her desire to inspect documents. This court has carefully reviewed all documentation provided but will only refer to some.

[41] On October 8, 2021, the Respondent solicitors served a Notice of Intention Regarding Business Records, specifically set out in Schedule A to that Notice, which included the accounts of Cohen Highley LLP – a total of 21 invoices. The Notice set out that the Appellant was permitted to inspect the documents.

[42] On the same day, the Appellant sent an email to the Respondents and their counsel stating that, although she had been given limited time, she did wish to arrange for the inspection of the accounts. The Appellant requested that the accounts be provided to her electronically.

[43] On October 13, 2021, counsel for the Respondents replied in an email in part as follows:

…I understand the Notice re Business Records states that you can arrange for inspection of the documents we intend to rely on in "Schedule A". The Schedule A documents listed are the accounts and dockets that are being assessed by you. The electronic copies that you are seeking were provided by you in your Order for Assessment.

In any event, I have sent you our briefs under separate cover, setting out all information and documentation we intend to rely on for this assessment. Any reliance on the Evidence Act will derive from the provided documents. Any originals of documents in these briefs are either inherently electronic [i.e. derived from email), or were provided to your new counsel once we were served with your Notice of Change of Representative. If you wish to inspect those originals, you can contact your new counsel.

[44] On January 10, 2022, at a pre-hearing conference, Assessment Officer Sellers made the following endorsement:

The client also requests that an order be made to compel the solicitor to produce all documentation within the solicitor's file. It was conveyed to the parties that I do not have the authority within the Solicitor's Act to compel the parties regarding productions. However, I can strongly encourage the solicitor to provide all documentation to the client as they deem necessary so to ensure an adverse inference is not taken by the court. Thus, the solicitor will make best efforts to provide all relevant material to the client.

[45] This court is satisfied that the Appellant had access to the intended business records and, therefore, had ample time to inspect them. These documents were provided to the Appellant in pre-assessment briefs and again in hearing briefs – physically and digitally. The business records were the very accounts / invoices that the Appellant was assessing. Nothing further would have been gained by attending at the office to look at these documents. It must also be noted that these events were occurring during a pandemic.

[46] As for the suggestion by the Appellant that she did not receive complete production of documents requested, the Assessment Officer dealt with this issue directly and reduced the accounts as a result. The Assessment Officer stated:

40. The client contends that the lack of physical documentation as it pertains to inter-office memorandums as well as any other document not presented to the court in relation to specific docket entries, suggests that the Assessment Officer must make an adverse finding and reduce the accounts accordingly.

41. The jurisprudence is unequivocal in that, the solicitor must substantiate their accounts by providing this court with all written documentation as well as corroborate this work and any potential discrepancies with oral testimony. However, although this is clear, the discretion is up to the Assessment Officer to determine whether the lack of oral testimony or physical documentation suggests a partial reduction or complete reduction of the accounts in their entirety. Alternatively, if there was any documentation not put before this court, how significant is its value towards the court making a determination as to the quantum of the accounts and their reasonableness.

42. It is undeniable that the solicitor provided extensive and comprehensive document briefs for this assessment. Within those briefs are a litany of documents in relation to this litigation comprising of e-mail correspondence, court documents, and other related documents such as commercial lease agreements and the separation agreement.

43. It is clear that all of the documentation was not properly before this court for assessment. On numerous occasions throughout the assessment, the client requested the solicitor to provide specific documents that were not within the document briefs, including, but not limited to, inter-office memos and/or opinion letters etc. The solicitor obliged with certain documents that were made exhibits during the hearing, however, the rules of evidence as within the Evidence Act are that all documentation, including all business records, must be produced, and exchanged prior to any court appearance to allow for scrutiny and proper cross-examination if necessary. Additionally, specific timelines were established to ensure that all parties were availed the opportunity to have those documents filed. Furthermore, there are a plethora of docket entries that state "receiving and reviewing memo", however, all of those memorandums are not all entirely before this court. Thus, the court cannot properly review and analyze the time associated with the producing and/or reviewing of same. For this, the court must make an adverse inference and reduce the accounts accordingly.

44. In saying that, for the court to arbitrarily reduce the accounts in a drastic nature due to a few documents not being provided when it is clear that the solicitor has made reasonable attempts to provide them to the court is unreasonable. I have reviewed the documents provided during the hearing, and although they provide some value to determination of this assessment, the documents of a pertinent nature (i.e ., the separation agreement, commercial leases etc.) are properly before this court.

45. Thus, it is my discretion to determine if a reduction is necessary. It was conveyed during the pre-assessment, that the lack of productions from either party could lead to a negative inference, thus, a reduction. Therefore, due to the lack of all documentation before this court, a reduction shall be imposed.

[47] The Assessment Officer, quite properly, did not provide a mathematical calculation of the reduction. Even as the parties have encouraged this court, such a mathematical exercise should be avoided and is unnecessary. However, what is clear is that the Assessment Officer drew an adverse inference due to the lack of production, which he was entitled to do.

[48] Further, the Appellant argued that the solicitors entered more than 2500 pages of material on the first day of the assessment hearing amounting to an unfair process.

[49] As set out in the factual chronology above, the Appellant was provided with the briefs in advance of the hearing and in accordance with the Rules. The Appellant was represented by counsel. Although the Appellant argues that she was "denied the opportunity to understand the relevance, attack, cross-examine or rebut any of the solicitor's positions with respect to these documents", the reality is that both solicitors were extensively cross-examined.

[50] There was no objection to this at the hearing. If the Appellant believed that this was unfair, the time to make this known would have been at the hearing. The Assessment Officer cannot be faulted for allowing a process to occur that was believed to be on the consent of the parties.

Legal Complexity

[51] The Appellant argued that the Assessment Officer did not conduct a proper analysis of the legal complexity issue. In his original reasons, under the legal complexity factor, the Appellant referred to the fact that the Assessment Officer held that the matter was "moderately complex" and that he was "satisfied that the solicitor met the standard required to represent his client as it pertains to the complexity of the legal issues involved. Thus, a reduction shall not be imposed." The Appellant argued that the legal complexity factor takes into consideration the complexity of the litigation, not the qualification of counsel, and that a correct approach to this factor would have been that the more complex the litigation, the more likely that a higher fee will be warranted, while the simpler the litigation, the more likely that the fees will be lower, regardless of who does the work. The Appellant argued that based on the Assessment Officer's finding that the matter was not of a high degree of complexity, rather moderately complex, a reduction of the solicitors' accounts should be warranted.

[52] In this court’s view, this argument is without merit, and the words of the Assessment Officer have been taken out of context. The Assessment Officer stated:

16. I find this matter to be of moderate complexity. This retention between the solicitor and the client can be broken down into two different legal matters. The first was the consummation of the separation agreement in May 2019 and second was the subsequent litigation that stemmed from the non-transfer of the "330 Highway 7" property.

17. The client surmises that the solicitor exacerbated the complexity of this matter due to their lack of knowledge as it pertains to family and commercial law. Additionally, their legal position on various issues prolonged the litigation unnecessarily.

18. The solicitor opines that the legal matters were highly complex due to the novelty of the separation agreement, the significant assets of the client's ex-husband Jinli Ding, and consequently the various amendments to the commercial lease.

19. The complexity of a matter can be determined by multiple facets, including but not limited to, the number of parties involved, underlying actions of the opposing party, and/or the actual complexity of the legal issues.

20. I don't find that the substantive issues resolved by the solicitors for the client meet the threshold of a high degree of complexity. However, it is clear that there were substantive legal issues that rise to the threshold of moderate complexity, and I am persuaded by the argument of the solicitors that the representations of the solicitor to the client meet the requirement under this factor due to the solicitor's years of experience in their respective areas of law. As indicated above, the two main issues of this matter were the separation agreement and subsequent legal issues regarding the commercial properties.

21. Although it is appreciated that the client implies that the solicitor may have contributed to the complexity due to their mismanagement of the separation agreement (this will be examined further in the Competence factor below), and subsequent transfers of the commercial properties, it doesn't however, suggest that they didn't understand the overall complexity of the legal issues within the confines of the litigation. Therefore, I am satisfied that the solicitor met the standard required to represent his client as it pertains to the complexity of the legal issues involved. Thus, a reduction shall not be imposed.

[53] The Assessment Officer clearly articulated in his reasons his consideration of the complexity of the matter. Reading these comments in context, it is clear that the Assessment Officer was aware of and applied the notion that the more complex the litigation, the more likely that a higher fee will be warranted. The Assessment Officer concluded that the matter was moderately complex and he assessed the accounts in light of that complexity. In addition, he considered and dismissed the Appellant’s argument that the solicitors increased the complexity due to their lack of knowledge.

Degree of Responsibility

[54] According to the Appellant, the Assessment Officer correctly articulated the law under the degree of responsibility factor but did not apply the facts correctly, most notably, in his finding that the Appellant was properly informed throughout the litigation process and she was provided with sufficient information to make informed decisions. The Appellant pointed to a number of facts that did not support this finding, including:

a. the solicitors were required to facilitate the transfer of a commercial property ("330 Hwy 7") to the Appellant concurrently with the execution of the separation agreement but did not explain to her why they chose not to do so;

b. the solicitors did not advise the Appellant with respect to consenting to the with prejudice dismissal of her family law application prior to ensuring the successful transfer of 330 Hwy 7;

c. the Appellant voiced her lack of understanding to the solicitors as to the status of her file after receiving the dismissal order;

d. between August 31, 2018 to July 11, 2020, the solicitors did not provide the Appellant with an email or opinion letter with substantive legal advice; and

e. the Appellant was given conflicting advice throughout the course of the retainer.

[55] Given that the Appellant concedes that the Assessment Officer correctly articulated the law, the findings of fact should not be reversed unless the Assessment Officer made a palpable and overriding error. The reasons of the Assessment Officer do not need to reach a level of perfection or refer to every fact. The Assessment Officer was clearly aware of all of the arguments made by the Appellant here on this appeal, as the same arguments seem to have been made at the time of the original hearing. The Assessment Officer spent several paragraphs considering the Lamont v. Polak [2013] O.J. No. 3443 six factors (paras. 70-84). He commenced by stating:

69. In addressing this factor, I would turn to the assessment of Lamont v. Polak [2013] O.J. No. 3443 in connection with this factor. In that decision the Assessment Officer defined a number of responsibilities incumbent upon the solicitor in this regard. I feel a fulsome review of these responsibilities is in order at this point to use as a basis for determining how well the Solicitor fulfilled his obligations within this factor. I would note that the essence of these considerations focuses on the establishment and continuance of strong and consistent communications between the Solicitor and Client.

[56] Considering all of these factors and the facts presented to him, the Assessment Officer found that the retainer was clear and compliant with the Solicitor’s Act, the Appellant was properly informed throughout the process as the correspondence brief outlined the frequent discussions which would have given her sufficient information to make informed decisions, that counsel acted in accordance with instructions, and that counsel was taking all necessary steps toward settlement which was the appropriate legal strategy. The Assessment Officer noted that the steps taken by the solicitor also included the negotiations regarding costs associated with the conveyance of the commercial lease for which there were various offers and communications. While the Appellant disagreed with the Assessment Officer’s conclusions, these were all conclusions he was entitled to reach after a consideration of the entirety of the circumstances. It is not for this court to simply substitute its own views. It is to be noted that a reduction was ultimately imposed as a result of a failure to delegate work to less expensive timekeepers.

Degree of Skill and Competence Demonstrated by the Solicitors

[57] The Appellant argued that the Assessment Officer misapprehended the evidence and incorrectly found that a reduction should not be imposed under this factor, without providing sufficient reasons. The Appellant provided the following examples:

a. the commercial lease agreement was of poor quality, in that it was not dated, the names of the parties were incorrect or missing, and signatures were missing, after taking a very long time to draft the agreement;

b. the separation agreement included terms that required the separation agreement to be signed concurrently with the transfer of 330 Hwy 7 and the execution of the commercial lease. Despite this, the transfer of 330 Hwy 7 had not occurred;

c. the solicitors were unprepared to complete the transaction concurrently because the commercial lease agreement was not completed until several months after the separation agreement was signed;

d. the solicitors consented to the with prejudice dismissal of the Appellant’s matter despite the incomplete transaction;

e. the solicitors solely caused the delay of the transfer of 330 Hwy 7, as they refused to provide their detailed dockets to opposing counsel until almost two years after the signing of the separation agreement, and only after another senior member of their own law firm urged Mr. Steacy to do so;

f. the wrong version of the parties' dismissal order, which lacked a key term, was converted into a Court order.

[58] It is the view of this court that, overall, the Assessment Officer’s original reasons show a strong knowledge of the record and evidence leading to the findings of fact he made. In such circumstances, the Assessment Officer is not required to detail and outline every single argument made or fact known. Reasons must be looked at as a whole. In Waxman v. Waxman, the court stated:

[343] A second “processing error” alleged by the appellants is the failure of the trial judge to consider relevant evidence. The failure to consider relevant evidence can amount to a palpable error if the evidence was potentially significant to a material finding of fact. The appellants bear the onus of demonstrating a failure to consider such evidence. The mere absence of any reference to evidence in reasons for judgment does not establish that the trial judge failed to consider that evidence. The appellants must point to something in the trial record, usually in the reasons, which justifies the conclusion that the trial judge failed to consider certain evidence.

[344] When assessing an argument that a trial judge failed to consider relevant evidence, it is helpful to begin with an overview of the reasons provided by the trial judge. If that overview demonstrates a strong command of the trial record and a careful analysis of evidence leading to detailed findings of fact, it will be difficult for an appellant to suggest that the mere failure to refer to a specific piece of evidence demonstrates a failure to consider that evidence. The failure to refer to evidence in the course of careful and detailed reasons for judgment suggests, not that the trial judge ignored that evidence, but rather that she did not regard that evidence as significant. The reasons for judgment in this case leave no doubt that the trial judge knew this record, appreciated the contentious factual issues, and understood the positions of the parties and the evidence they relied on.

[59] In this case, the Assessment Officer provided detailed and comprehensive original reasons for his decision on these issues. The Assessment Officer was obviously fully aware of the arguments being advanced. He dealt with the arguments and made relevant and necessary findings of fact. The Assessment Officer referred at para 98 to the “litany of contentions” made by the Appellant and summarized what he understood to be the three main issues. He then dealt with each of these areas over several paragraphs, finding in part as follows:

112. The question arises, did the solicitors err in not having the "330 Highway 7" property transferred "concurrently" upon the execution of the separation agreement?

113. The term "concurrently" is legally defined as "operating or occurring at the same time, running parallel". The understanding between all parties involved, including both counsels, was that the conveyance of the "330 Highway 7" property would be transferred immediately or "at or near the same time", after the execution of the separation agreement. It is undisputed that the transfer did not transpire, however, the question of why remains a live legal issue.

114. In this situation, I am persuaded by the argument of the solicitor for three reasons. The law firm has a fiduciary obligation to ensure that the client was apprised of the legal ramifications of the conveyance and acted accordingly, that Ms. Nakano partially contributed to the requirement of further legal remedies and fees, and that the solicitor was under the impression that Jinli Ding was acting in good faith to make reasonable attempts to transfer the property.

115. Having reviewed the testimony of both the solicitor and the client, I am persuaded that the client was unsure as to how to proceed with the conveyance, and that her actions and unwillingness to determine the proper path contributed to the legal fees increasing.

116. The law firm acted immediately to begin work on the conveyance by involving Mr. Steacy. They were required to ensure that the best interests of Ms. Nakano were met by seeking a third-party opinion of a third-party valuation firm, Davis Martindale, to decipher whether the property should be transferred into Ms. Nakano's name personally or that of a corporation as was her request, as well as other tax implications. As the property would have been substantial in value (although there was a dispute over the fair market value of the property) it is clear that the law firm was conducting their legally obligated due diligence for their client. This would ultimately drive up the legal fees associated with the conveyance, which by way of the separation agreement, would be borne by the opposing party, Mr. Ding.

117. It can also be stated that upon a review of the document briefs of the solicitor, that the client required significant "hand holding", which required the solicitor to draft, send and review various correspondences during this process, which included but was not limited to, letters to and from Davis Martindale and the client, which would naturally drive-up costs.

118. The jurisprudence is clear in that if an opposing party of any litigation, whether necessarily or unnecessarily, drives up the cost of the litigation, does not preclude the solicitor from their fees associated with representing their clients' interests, assuming that the solicitor was not "careless" in the legal strategy provided to the client. It is also prevalent that the solicitor was required to perform meaningful work, which included but was not limited to, various discussions with opposing counsel in attempts to resolve the matter. Additionally, there are various correspondences that articulate the solicitor making reasonable attempts to resolve the issue of the conveyance and working on the "good faith" understanding that the solicitor for Mr. Ding was working towards a resolution.

119. Therefore, I am satisfied that the solicitor has met their legal obligation within this particular consideration and there shall be no reduction imposed.

120. The client suggests that the solicitors were negligent in allowing the family law application be dismissed and prejudiced Ms. Nakano unnecessarily. Due to this negligent action, the client submits the accounts shall be set at nil.

121. Did the solicitors act in a negligent manner by dismissing the application?

122. I don't agree with the summation of the client that the threshold has been met to determine the solicitor acted negligently in having the application dismissed. That threshold is intended to be a severe repercussion for actions of the solicitor that were detrimental to the client's position within a particular litigation.

123. In this matter, there is no documentation before the court that suggests that the client has been adversely affected. As stipulated in the consideration above, the client was not prejudiced within the family litigation due to the conduct of the solicitor. The June 2020 order of Justice Douglas was consented to by both parties which included Ms. Nakano. From reviewing the document brief, there is no correspondence that stipulates her position to the contrary.

124. Additionally, the separation agreement was executed in May 2019 which resolved all issues between the parties. Once the parties had consented to the removal of the Certificates of Pending Litigations, the next appropriate step would be to dismiss the application and proceed with the divorce and ultimately the conveyance and transfer of the "330 Highway 7" property as agreed to by the parties. If, at that time, there was still negotiations over the conveyance of the "330 Highway 7" property, any remedies regarding that dispute would require a separate application to enforce same. Therefore, this court is not persuaded that the solicitor erred in their legal strategy.

125. Overall, the solicitor demonstrated based on a balance of possibilities that the work completed, and legal opinion provided is equivalent to the representations given to the client throughout the litigation. Therefore, the accounts will be upheld for this factor.

[60] The analysis of the Assessment Officer on these points was thorough and thoughtful. There is no merit to this argument.

Results Achieved

[61] The Appellant argued that the solicitors achieved a poor result for her as:

a. She was effectively ordered by Himel J. to restart her entire family law application;

b. Her motion was preliminarily dismissed as the wrong version of the draft order was made into an order;

c. The solicitors’ 14B motion could not have succeeded due to the “with prejudice” dismissal and failure to convert the terms of the separation agreement into a Court Order; and

d. The Case Conference in April 2021 was unnecessary as there was no reasonable prospect of success in the underlying cause of action.

[62] The Appellant further argued that the Assessment Officer misapprehended the facts with respect to the nature of the retainer, as he held that the solicitors "achieved the outcome that they were retained to do, which was the execution of the separation agreement." This, according to the Appellant, was irreconcilable with his earlier finding that the Appellant retained the solicitors to "deal with issues relating to [her] separation from Jinli Ding." The Appellant argued that this mistaken position was also made by the solicitor in their testimony, as well as in their dockets, when Mr. Sneddon attempted to close the Appellant’s family law file after the separation agreement was signed. This, the Appellant submitted, led to the unauthorized dismissal of the family law application. The Appellant argued that the Assessment Officer provided insufficient reason and analysis with respect to this point.

[63] On this evidentiary record, it is difficult to fully assess the pros and cons of the results achieved and the degree to which, if any, the solicitors are responsible for the result. Negative results certainly do not automatically suggest that lawyers did something wrong. There is typically a successful party and an unsuccessful party at the end of any litigation.

[64] Having said that, it is not correct to suggest that the Assessment Officer did not provide sufficient reasons or analysis on this point. The Assessment Officer dealt with this very argument. He stated in part:

133. The court must review the overall success of the solicitor in relation to the purported fees. In RZCD v. Williams, 2015 ONSC 1792, Justice Price referenced Mark v. Marchese Estate, 2006 O.J No 4722, in that Justice Spiegel found that it is in err in principle for an Assessment Officer to reduce the accounts based on a perceived unsuccess of the solicitor by the client. Although it is appreciated that the general facts are different in this reference, the principle of the success in relation to the work performed and fees associated with same is relative.

134. There should be no question that the solicitor drafted and executed the separation agreement. The question is whether the solicitor was the integral party in the negotiations that led to the consummation of same? The client has provided a variety of correspondence prior to the solicitor's retention that appear to articulate previous counsel, Ms. Samuels, negotiating some of the provisions that comprise the terms within the separation agreement. One of those terms, includes but is not limited to, the 10-year lease agreement of $10k monthly payable by Jinli Ding.

135. Additionally, the client suggests that the separation agreement is not necessarily "boilerplate", however, standard in nature. The client suggests that the document would not require significant work, aside from specific provisions, as articulated above.

136. Upon review of the correspondence and the separation agreement, it is clear that there is some overlap regarding the terms within the letter/Minutes of Settlement and that of the separation agreement. Thus, it is unequivocal that the solicitor did not negotiate all terms within the confines of the separation agreement. In saying that, it is unmistakable that the solicitor was involved in the finality of the separation agreement by continuing negotiations with the assistance of opposing counsel and ultimately drafting and executing same.

137. It is also evident to this court that the separation agreement is not "boilerplate". Although it is appreciated that particular terms of a separation agreement will be standard, each family litigation will have different issues that require different remedies. For that it would require the solicitor to draft the separation agreement to reflect those specific remedies, more specifically, the provisions surrounding the acceleration clause for spousal support payments. This requires legal services and expended time to draft and execute to protect the interests of the client.

138. Ultimately, the solicitor achieved the outcome that they were retained to do, which was the execution of the separation agreement. Although the solicitor did not negotiate all terms within the confines of same, it does not preclude the solicitor from their fees associated with its consummation. The solicitor continued negotiations at the time of the retainer and was able to draft and execute it accordingly. The solicitor was also able to execute the commercial lease and subsequent amendment.

139. I am not satisfied with the argument of the client that the solicitor provided no valuable services aside from the execution of the separation agreement and the commercial leases. The solicitor made reasonable attempts to resolve the outstanding legal issues as outlined in the extensive correspondence provided. It is clear that the client was unsatisfied with the subsequent legalities that stemmed from Mr. Ding not conveying the property, however, although the solicitor was not able to convey the "330 Highway 7" property as per the separation agreement, nor able to negotiate a settlement regarding the legal fees associated with same, does not preclude the solicitor from their fees or suggest that this court must reduce the accounts exponentially or value those services at nil. That would be an unreasonable position for this court to take and as articulated above in RZCD v. Williams, it would be an err in principle for this court to make a finding to the contrary.

140. Therefore, I am not persuaded to reduce the accounts based on the argument of the client. Thus, the accounts will be upheld for this factor.

[65] As demonstrated, the Assessment Officer thoroughly engaged with this issue and provided sufficient reasons for his conclusions. The fact that the Appellant does not agree with those conclusions is not a reason for this court to intervene and substitute a different view.

Time Expended by the Solicitors

[66] The Appellant argued that the Assessment Officer correctly stated the law with respect to his jurisdiction and authority to draw an adverse inference and reduce the accounts to nil for any timekeepers' failure to testify at the assessment. However, the Appellant argued that the Assessment Officer misapprehended the facts and did not apply the law correctly, and ultimately gave a partial deduction on the non-participating timekeepers' accounts. The Appellant provided the following specific arguments:

a. The Assessment Officer held that the solicitors provided ample correspondence, e- mails, and court documents that were produced by these timekeepers, a finding difficult to reconcile with the fact that the solicitors failed to produce all relevant documentation.

b. There was insufficient analysis and reasons with respect to the interplay of the Evidence Act and the solicitors' business records.

c. The Assessment Officer's determination to provide a partial deduction of these accounts has the effect of reversing the onus on the Appellant to prove that a full reduction should be warranted. This would be unjust as the onus is on the solicitors to prove the account.

d. The Assessment Officer held that there was no administrative work that would constitute overhead in the solicitor's dockets and that a reduction would not be imposed. On December 15, 2020, the solicitors told the Appellant that they would charge her "something close to 500 bucks an hour" to go through their dockets and notes to separate their time. This supports the finding that the solicitors believed that administrative tasks with respect to docketing their time was billable.

[67] To the contrary, the Respondents argued that the Assessment Officer erred in drawing any adverse inference from the timekeepers’ failure to testify, and that any reduction given for this must be reversed.

[68] This court is not satisfied that there should be either any further reduction or that any adverse inference drawn by the Assessment Officer should be reversed.

[69] There is no question that the purpose of the Notice of Intention regarding Business Records under the Evidence Act is to allow for evidence to be admissible without the need to call witnesses. See Aynsley et al. v. Toronto General Hospital et al., affd , aff'd . In the context of an assessment under section 3 of the Solicitor’s Act, this issue was discussed in the case of Starkman Barristers v. Cardillo, 2017 ONSC 5530, para. 100.

[70] It is worth noting that this case is a bit unusual in the sense that when the Assessment Officer did a breakdown of the timekeepers and the time spent, a large quantity of the time was that of Mr. Sneddon and Mr. Steacy, who did testify, however, of the other 150 hours spent by 10 other timekeepers, 107 of these hours were Jimmy Nakano Ding, the son of the Appellant and counsel to her on this Appeal, at a docketed rate of $200.00 per hour. Surely, the Appellant is not questioning the dockets of her son / present counsel.

[71] While this court agrees that the Assessment Officer would have erred in drawing a negative inference from the fact of non-attendance at the hearing alone, it is not clear that this is what occurred. On this issue, the Assessment Officer stated in part as follows:

63. The question arises, is it reasonable for this court to use its discretion to nullify the accounts of the timekeepers who did not testify to their accounts? The short answer is no. The court must look at the timekeepers who did not testify and what contribution and/or tangible work they performed to this litigation. The main players in this litigation were Mr. Sneddon, Mr. Steacy and Mr. Ding. Their contributions regarding legal strategy, drafting of documents and execution of same made up the majority of the time docketed.

64. Both Mr. Sneddon and Mr. Steacy attended and testified to their accounts and although Mr. Ding's testimony may have assisted this court in certain instances, his non- attendance does not signify an automatic reduction to the accounts. Even if it were to be considered of a full reduction to Mr. Ding's account, it would be quantifiably insignificant to the overall totality of the accounts.

65. The law firm has also provided ample correspondence, e-mails, and court documents that were produced by these timekeepers. Although they are not here to substantiate their portion of the accounts or the work produced, does not preclude them from a portion of those fees. However, I do agree with the client that the court cannot uphold the accounts of these timekeepers in their entirety without their corroboration by way of testimony, and the ability of the client to cross-examine. For this, a reduction must be imposed.

66. It must also be stated that the client had the opportunity to summons Mr. Ding to testify (which was implied at the pre-assessment) at this hearing, however, when asked poignantly at the outset of this assessment, chose to renege on that opportunity, thus foregoing any possibility of seeking his testimony and potential to cross-examine.

67. Therefore, for the reasons articulated above, the accounts will be reduced, however, will not be nullified in their entirety.

68. In summary, the time expended by the solicitor on a balance of probabilities is fair and reasonable. The comprehensive document briefs outline the various work completed and the time associated with completing those tasks. Therefore, the accounts in relation to this factor should be generally upheld. In saying that, there will be some reductions based on some transgressions as stipulated above.

[72] It is difficult for this court to determine precisely how much of a reduction was made specifically for this factor. While this court does not agree with any reduction for non-attendance alone, it seems that, in the end result, the Assessment Officer took a wholistic approach to this issue, including a consideration of the documents presented. This court declines to make any overall adjustment to the result on this basis.

Client’s expectation as to the amount of the fees

[73] The Appellant testified and argued that the solicitors did not give her any kind of estimate as to the legal fees throughout the course of the retainer. The solicitors did not cross-examine the Appellant, and she argued that they did not provide any evidence to contradict her testimony. Furthermore, the Appellant argued that the Assessment Officers' reasoning failed to consider the following:

a. the client's expectation to pay is based on the subjective and actual expectations of the client, not what she would or ought to have known;

b. the solicitors did not provide timely bills;

c. the solicitors told the client that she would be getting a discount;

d. Mr. Sneddon was not a certified specialist in family law when retained; and

e. the Appellant voiced her disapproval of the accounts during the retainer.

In this regard, the Appellant argued that it was an error in law and a misapprehension of the evidence to find that the Appellant understood what the expected fees of the litigation could have been.

[74] The Assessment Officer found that the retainer agreement in this case was clear. He stated:

142. The retainer agreement is in a clear and concise language that would be understandable to the client. There are no ambiguities that would suggest to this court that the client would have issues comprehending all of the terms of the agreement. Additionally, the client at no point during the retention, corresponded with the solicitor to suggest same.

The Assessment Officer then questioned 1) whether the solicitor explained the expectation as to the fees and was the client aware of the mounting fees and updated throughout; and 2) whether the solicitor informed the client as to the increased hourly rate from $475 to $500. Ultimately, the Assessment Officer determined that there were four reasons that the Appellant would have understood what the expected fees could have been, including:

1. The Appellant retained the services of a certified specialist in family litigation, suggesting the hourly rate would be commensurate with years of experience, and therefore more than retaining someone without that designation.

2. The Appellant was paying the interim accounts as they were provided, which was 20 accounts over a 36-month period. While not necessarily indicating an acceptance of the fees, this was certainly an awareness of the ongoing fees.

3. The retainer agreement outlines the hourly rates of the timekeepers.

4. The Appellant had previously retained counsel in this litigation which would have provided her with a general understanding of a solicitor-client relationship and the potential fees involved.

[75] As for the fact that Mr. Steacy did not inform the Appellant of his involvement on the commercial issues and the hourly rates, the Assessment Officer did find this to be a “minor omission” and resulted in a minor reduction.

[76] As for the hourly rate change of Mr. Sneddon, the Assessment Officer held that all of his dockets would be calculated at the lower rate of $475 and a reduction would be imposed.

[77] In conclusion, the Assessment Officer stated:

163. In summary, this court is satisfied that the client was aware of the overall expected fees associated with this litigation and similarly, would have been aware of the mounting fees as she continued to renumerate the solicitor for every interim account provided. However, as articulated above, as the solicitor did not properly inform the client of Mr. Steacy's hourly rate nor the change in hourly rate of Mr. Sneddon either by way of retainer agreement or correspondence, the court must reduce the overall totality of the accounts.

[78] This shows a very thorough and reasoned analysis of the issues, allowing for reductions where reasonable to do so. Any error made by the Assessment Officer in not recognizing that Mr. Sneddon was not a certified specialist at the time of the retainer is without consequence. Again, it is the reasons as a whole that must be considered. Perfection is not required.

Client’s Ability to Pay

[79] The Appellant argued that the Assessment Officer improperly concluded, without providing sufficient reasons, that she had ample means to compensate the solicitors and that a reduction would not be imposed for this factor. The Appellant submitted that the Assessment Officer failed to consider that most of her monthly income was used to pay the solicitors' fees, her ex-husband would withhold payments, and she had asked for temporary relief on the solicitors’ bill.

[80] Again, this argument is without merit. The Assessment Officer engaged with this issue and provided reasons for his decision. He concluded:

164. The ability of the client to pay her accounts is two-fold. One, the client at the outset of the family law litigation was of limited financial means due to her ex-husband, Mr. Ding, controlling the majority of the families' finances including properties and businesses. This would have put Ms. Nakano in a precarious situation as it pertains to whether she could have paid her fees.

165. Second, once the law firm had been retained to represent Ms. Nakano, she was able to obtain financial relief by way of a separation agreement that allowed for the execution of a commercial lease that paid her $10,000 a month in lieu of spousal support as well as the expected transfer of "330 Highway 7".

166. I am persuaded by the argument of the solicitor that Ms. Nakano had the financial means for which to pay her accounts. First, although it is appreciated that Ms. Nakano's assets whether it be liquidated or otherwise may have been controlled by Mr. Ding, there is no documentation that was provided by the client to the court that articulate specifically what her financial situation was. Additionally, Ms. Nakano paid all of her accounts, except the last one which remains outstanding, on time and without delay.

167. Furthermore, the client, even if the previous accounts had not paid, would now have the financial means for which to renumerate the solicitor for the accounts rendered.

168. Thus, I am satisfied that the client had ample means for which to compensate the solicitor for the rendered services. A reduction shall not be imposed.

[81] These reasons are certainly sufficient and articulate reasonable conclusions on the evidence.

Costs

[82] The Assessment Officer awarded no costs to anyone.

[83] The parties agree that an Assessment Officer has very broad discretion on the issue of costs. Assessment Officer Sellers prepared a 9-page, 51 paragraph decision on costs. In those reasons, he summarized the submissions made by the parties. He considered section 6(3) of the Solicitor’s Act, section 131 of the Courts of Justice Act, and the Rules of Civil Procedure, as well as relevant case law. The Assessment Officer properly considered offers to settle made by both parties. After considering all of the circumstances, the Assessment Officer concluded:

48. The fixing of costs of a hearing is more than a mathematical exercise of multiplying the number of hours by the appropriate hourly rate. Each case must be considered on its own merits and with regard to its particular circumstances. In addition, the Court of Appeal has provided that the objective of a determination on costs is to fix an amount that the unsuccessful party is required to pay that is fair and reasonable rather than an amount reflecting the actual costs of the successful party. See Boucher v Public Accountants Council for the Province of Ontario (2004), 71 O.R. (3d) 291 (C.A.); Zesta Engineering v Cloutier (2002), 164 O.A.C. 234 (C.A.); Moon v Sher (2004), 246 D.L.R. (4th) 440 (C.A.)

49. Additionally, the court must consider the results of this assessment. In my Reasons, I stipulated that the solicitor upheld their accounts on a balance of probabilities, however, there was a reduction of approximately $30,000. In ORKIN's, "The Law of Costs", it specifies that "costs should follow the result and only in rare cases should the successful party be deprived of costs". Furthermore, "Orkin" explains at para. 6:71 that, although the costs of an assessment are within the discretion of the Assessment Officer, the Officer's approach is not the same as that of a Judge presiding at a trial or other proceeding, since, unlike an adversarial process such as a trial, an assessment is a reference which is "commonly considered to be an inquiry into the matters referred." The authors conclude that the Assessment Officer should fix costs of an assessment at a lower level than if it were a trial. Additionally, full, or substantial indemnity costs are only to be awarded in "rare and exceptional cases in which the court seeks to chastise a litigant for conduct of which the court disapproves".

50. This court must also take into consideration other relevant factors in determining whether costs should be awarded, including Offers to Settle, and Rule 57.01. In this instance, the court determined that neither party met the necessary threshold under rule 49.10 regarding indemnity costs. Similarly, both parties' arguments as it pertains to 57.01(1)(e) and lost opportunity costs were not successful, thus, not attracting a costs award.

51. As per my Reasons, it was determined that there was substantive work produced. However, it cannot be overlooked that the accounts were reduced. As outlined above, costs are in my discretion as per the Solicitor's Act, specifically section 6(3) and s. 131 of the Courts of Justice Act. Based on the divided success of the parties, I determine that the accounts were reasonable but apparently excessive, and therefore, award no costs to either party.

[84] As stated above, the decision on costs is entitled to significant deference. It is the view of the court that the determination of the Assessment Officer on costs, was thoughtful, considered and reasonable.

Public Policy

[85] The Appellant also raised a number of public policy reasons to argue for the remedy they seek, specifically:

a. The solicitors treated the assessment hearing akin to a trial. According to the Appellant, they should therefore “live and die by the sword when it comes to costs consequences”.

b. 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 a solicitor's account, the solicitor should facilitate the assessment process, rather than frustrate it. As the solicitors withheld evidence, the solicitors failed to facilitate the assessment process and they should not receive any benefit for the same.

c. The Appellant incurred more legal fees than what was recovered. Should the Court find that costs not be payable by the solicitors, this means that the Appellant would have been financially better off by not assessing the solicitors' account. In such an event, justice would not be served and this may have a chilling effect on clients at large from contesting their solicitors' invoices.

[86] It is the view of this court that the public policy arguments advanced should not and do not lead to this court coming to a different financial result than the Assessment Officer.

[87] As stated earlier, Assessment Officers are entitled to receive deference from this court. While this court found that the Objections were not dealt with properly by the Assessment Officer, the hearing at first instance and the reasons that followed were thoughtful, detailed, and demonstrated a fair assessment of the numerous arguments presented. All of the arguments now presented to this court were made to the Assessment Officer at the hearing and were then made again during Objections.

[88] As for the first and third argument advanced under the public policy heading, there would seem to be no merit to those arguments whatsoever. The solicitors approached the assessment hearing in accordance with the rules and law applicable. Where they were held to have fallen short, such as with production, the assessment officer made reductions. As for the financial consequences to the Appellant, this is the reality of litigation and the risks involved.

[89] It is true that 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. Given that this court did not feel that the objections were dealt with appropriately, this court has undertaken a deeper review of the matter, including what occurred at the hearing, the reasons given, and the objections made. Having undertaken a deeper review of the matter, this court is fully satisfied that the Assessment Officer came to a fair, just and proportionate result at the hearing, including on the costs award.

Conclusion

[90] For all of the foregoing reasons, the Appeal is dismissed. The Certificate of Assessment and Report stands.

[91] As for costs of this appeal, the court strongly encourages the parties to consult with each other and attempt to reach a reasonable agreement. If the parties are unable to agree as to costs, the court will accept written submissions on costs, which shall be no more than two pages in length, excluding supporting documentation. All costs submissions are to be filed through the civil JSO portal as well as directly with my assistant by email to Bev.Taylor@ontario.ca and which shall be provided no later than 4:30 p.m. on April 12, 2024.

Released: April 4, 2024 Justice V. Christie