ONTARIO
SUPERIOR COURT OF JUSTICE
IN THE MATTER OF the Solicitors Act AND IN THE MATTER of Nicholas C. Tibollo, Solicitors
BETWEEN:
Sam Agha Applicant (Client)
– and –
Nicholas C. Tibollo Respondent (Solicitor)
Sam Agha, Self-Represented
Claudio Aiello, for the Respondent (Solicitor)
HEARD: May 29, 2024
REASONS FOR DECISION
1The motions before me relate an assessment of a lawyer’s bill commenced by the Client, Sam Agha, by requisition under s. 3 of the Solicitors Act, R.S.O. 1990, c. S.15.
2The Client owns and operates car dealerships in Ontario and California. He is also an officer, director and shareholder of 2551276 Ontario Inc., and 1552799 Ontario Inc.
3Between November, 2018 and the fall of 2021, Mr. Agha retained Nicholas F. Tibollo Professional Corporation to provide legal services on various matters. Mr. Tibollo was retained to defend Mr. Agha and his companies in a series of lawsuits and licencing revocation proceedings and to prosecute claims on Mr. Agha and his companies’ behalf. Mr. Agha terminated Mr. Tibollo’s retainer on October 27, 2021 after receiving a payment request for outstanding accounts.
Procedural History
4On November 17, 2021, Mr. Agha obtained from the Registrar of the Superior Court of Justice an Order for Assessment (Client’s Application) of the bills, fees, charges and disbursements delivered to the Client by his lawyer, Nicholas F. Tibollo Professional Corporation.
5Mr. Agha attached to the requisition the Solicitor’s Client Ledgers which identified 28 legal accounts that were unpaid which he wished to assess. These accounts totalled $62,279.88. The requisition signed by Mr. Agha certified that “the retainer of the solicitor is not disputed”.
6At the Pre-Assessment Hearing held on March 7, 2022, Mr. Agha did not attend. Instead, his son attended and requested an adjournment to permit Mr. Agha to retain a lawyer.
7At the second Pre-Assessment Hearing held on June 6, 2022, the Applicant had retained counsel, Mr. Stephen Panzer, who took the position that the Assessment should be amended because Mr. Agha disputed all 28 accounts that he had included in the Requisition. The proposed amendment could not be made by the Hearing Officer, but had to be brought before a Superior Court judge. The Hearing Officer adjourned the Pre-Assessment hearing to September 6, 2022 in order for Mr. Agha to bring a motion to a judge to amend the Order for the Assessment.
8Mr. Agha now took the position that he had never retained Mr. Tibollo on any of the unpaid accounts that he previously sought to assess. He also took the position that Mr. Tibollo was retained by Mr. Agha’s corporations, which were not parties to the assessment.
9On July 27, 2022, Mr. Panzer, on behalf of Mr. Agha, brought a motion to remove all of the unpaid accounts from the Order of Assessment previously obtained, and to replace them with one paid account for $4,474.80 that was not part of the November 17, 2021 Order.
10For reasons explained below, that motion has never been heard by any court. It is one of the two motions that was before me on May 29, 2024.
11The matter came back before the Assessment Hearing Officer on September 6, 2022. Since Mr. Agha’s motion had not yet been heard, the matter was adjourned to January 9, 2023.
12On September 30, 2022, Mr. Tibollo brought a cross-motion to add two of Mr. Agha’s corporations as Applicants to the Order of Assessment issued to Mr. Agha on November 17, 2021, and to correct Mr. Tibollo’s law firm’s name by adding “Professional Corporation” after his name. That cross-motion was the second motion before me on May 29, 2024.
13On January 30, 2023, before either motion could be heard, Mr. Panzer brought a motion to be removed as lawyer of record for Mr. Agha on the basis that Mr. Agha “failed or refused to meet his financial retainer obligations with Stephen Panzer…including failing or refusing to pay his past due outstanding account for legal representation in the within proceeding”.
14Mr. Panzer’s motion to be removed as lawyer of record proceeded before Casullo J. on February 15, 2023. Mr. Panzer was removed as lawyer of record for Mr. Agha. In her endorsement (as corrected on March 10, 2023) Casullo J. also ordered:
…that the Applicant’s motion and the Respondent’s motion, when they are called, shall be peremptory on the Applicant Sam Agha and further that the Respondent’s motion shall also be peremptory on 2551276 Ontario Inc. and 1552799 Ontario Inc.
15The matter returned to the Assessment Officer on January 9, 2023 and April 3, 2023, but was adjourned to September 11, 2023 because the parties’ respective motions had not yet been heard. On September 11, 2023, the Hearing Officer’s endorsement stated:
This pre-assessment returns from April 3, 2023 for the parties to speak to the status of the motion on the Long Motions List. The client has not attended today and there is no indication that he has retained counsel as per the Order of Justice Casullo. The solicitor informs the court that the motion has not been scheduled but is on the long motions list. This matter cannot proceed to an assessment without the conclusion of that matter. Therefore, the pre-assessment hearing shall be adjourned to March 26, 2024, at 9:00 a.m. That attendance shall be peremptory on the client to attend to speak to the status of Justice Casullo’s order regarding the retention of counsel.
16The March 26, 2024 date was adjourned to April 26, 2024 for a status update. Two days prior to that date, Mr. Agha informed the Court that he was scheduled for knee surgery on April 26, 2024 and could not attend. The Assessment was adjourned again. Mr. Agha was ordered to “deliver a letter from the surgeon of his medical prognosis by no later than May 15, 2024. Once the letter is provided, court administration shall schedule a new pre-assessment date forthwith.”
17Mr. Agha did provide an unsigned and undated note from his physician. The same unsigned and undated note was relied on to request an adjournment of the May 29, 2024 motions before me.
18The doctor’s note states:
Mr. Agha is dealing with bilateral knee issues stemming from a previous injury, compounded by arthritis and meniscus damage. Our approach involves utilizing stem cell therapy and platelet-rich plasma (PRP) as alternatives to surgery, with stem cell therapy followed by PRP depending on prognosis and recovery from each treatment stage. Due to the variable nature of recovery, it’s challenging to pinpoint exact timelines for completion.
Post-first treatment, focus shifts to managing T cell inflammation and facilitating healing of induced pluripotent, multipotent, totipotent stem cells, and mesenchymal stem cells. A window of 4-6 months is anticipated for completing treatment cycles from the initial session. Meanwhile, Mr. Agha is prescribed tramadol 100mg to be taken two to three times daily to manage post-procedure pain.
19Mr. Agha’s note was provided to the Assessment Officer, who scheduled the next pre-assessment hearing for July 8, 2024, because it did not appear from the doctor’s prognosis that “the surgery on your knee and subsequent recovery will preclude you from participating in the assessment process as the next pre-assessment hearing would proceed via Zoom.” Mr. Agha had previously indicated that he would be available in July, 2024. The Assessment Officer held that the July 8, 2024 date was peremptory on Mr. Agha.
Adjournment Request
20The parties respective motions on the Long Motions List were finally scheduled for a virtual hearing on May 29, 2024. The day prior to the May 29, 2024 motion date, Mr. Agha filed the same undated and unsigned doctor’s note he had provided to the Assessment Hearing Officer. Mr. Agha did not appear at the motion, but his wife appeared to request an adjournment. She indicated that Mr. Agha was not available to appear at the motion.
21Given Casullo J.’s Order that the motion date for both motions was peremptory to Mr. Agha, I denied the adjournment request. Even assuming the authenticity of the unsigned and undated letter from his physician, there is nothing in the letter to suggest that Mr. Agha could not appear for a virtual motion on May 29, 2024. Indeed, the letter states that “Our approach involves utilizing stem cell therapy and platelet-rich plasma (PRP) as alternatives to surgery” (emphasis added).
22These motions have been outstanding for almost two years. It is apparent that Mr. Agha has done everything possible to delay these proceedings.
Analysis
23An assessment can proceed under the Solicitors Act, RSO 1990, c S.15 only “where the retainer of the solicitor is not disputed” (s. 3).
24If the Court were to grant Mr. Agha’s motion to amend the November 17, 2021 Order for Assessment, Mr. Tibollo would be compelled to start an action against Mr. Agha in order to pursue the unpaid accounts. Mr. Tibollo argues that this will result in duplicative proceedings and unnecessary expense. He argues that the assessment, which is now scheduled for July 8, 2024, should proceed, and that Mr. Agha’s motion and belated dispute of his retainer is a subterfuge to delay paying his lawyer’s accounts.
25Mr. Tibollo’s evidence reviews each of the files for which he was retained by Mr. Agha, either personally or on behalf of Mr. Agha’s corporations. The evidence clearly demonstrates that Mr. Tibollo was retained by Mr. Agha with respect to each of the accounts referenced in the November 17, 2021 Order for Assessment. In most of these files, Mr. Agha was the plaintiff or defendant, either personally or together with his corporations. Even in those cases where only the corporation was named as a defendant, Mr. Agha was the directing mind of the corporation and had the authority to, and did, retain Mr. Tibollo on behalf of the corporation.
26When Mr. Agha submitted to the Court a Requisition for Assessment on November 17, 2021, he certified that “the retainer of the solicitor(s) is not disputed”. Mr. Agha signed the requisition and served the Order on the Solicitors together with the Solicitors’ Account Ledgers that identified the outstanding accounts on the various files and the amounts owed to the Solicitors.
27There is nothing in the record before the Court to support Mr. Agha’s belated contention that the lawyer’s retainer in any of the files Mr. Agha previously certified were not in dispute are genuinely in dispute. Mr. Agha was either a plaintiff or defendant in most of these proceedings for which Mr. Tibollo was retained. Mr. Agha’s personal vehicle dealership licence was sought to be revoked in the OMVIC proceedings before the Licence Appeals Tribunal for which Mr. Tibollo was retained. Mr. Agha completed and provided Client Identification forms and his identification to Mr. Tibollo. Accounts were rendered to Mr. Agha and, until October 27, 2021, paid without complaint. It appears that Mr. Agha’s bald assertion that these retainers are in dispute, assertions raised after he commenced the Assessment proceedings, are intended solely to delay and derail the Assessment proceeding.
28As stated in Nicholas C. Tibollo Professional Corporation v. 2207544 Ontario Inc., 2013 ONSC 5058, at para. 21:
The law establishes that in order to set aside the Order for Assessment, there must be a genuine dispute as to the existence of the retainer. Mere bald assertions that the solicitor was not retained are inadequate. If a genuine dispute is proven, then the dispute must be resolved through the commencement of an action. However, the absence of a retainer cannot be baldly claimed as a means to avoid or de-rail the Assessment process. The dispute must be bona fide. It must be evident on the face of the record: Whiteacre v. McGregor, [1980] O.J. No. 811 (S.C.O. Div. Ct.). and it cannot be brought up at the last moment when the client has raised no challenge on a timely basis when the record shows an awareness of the steps that were ongoing: see Price v. Sonsini, 2002 CanLII 41996 (ON CA), [2002] O.J. No. 2607 (C.A.) at para 17 and Rule 2.02(b).
29Similarly, in Nicholas C. Tibollo, Professional Corporation v. Baun, 2009 CanLII 57556, at paras. 16 to 18:
The solicitor, in response submits that, in these circumstances, B&B should not now be allowed to have a requisition that it made and an order that it obtained set aside and that it is now estopped, by its own subsequent conduct, from raising any alleged dispute over the solicitor’s retainer.
As indicated above, I am persuaded that I should give effect to the solicitor’s position. On the evidence before me, I am not persuaded that any error occurred, by inadvertence or otherwise, when Perlis sought and obtained an order for the assessment that included the moving party… I further conclude that the so-called dispute of the retainer was an afterthought by Perlis and all three of his clients, designed to bring a premature ending to the assessment proceeding that was already in process and to require the solicitor to assert its claim against the moving party, instead, by ordinary action. In other words, the so-called dispute was not a “dispute” at all but a subterfuge intended to thwart the solicitor’s efforts to get paid. It should not, in my view, be viewed as a “dispute” within the meaning of section 3 (a) of the Solicitors Act. In coming to this conclusion, I do not weigh the conflicting evidence to determine whether or not the retainer is disputed. Rather, I find that the evidence to support the claim of dispute is unreasonable and unworthy of any weight whatsoever.
I observe, parenthetically and in conclusion, that I have not been referred to any instance where a client who requisitions and obtains an order for assessment of a solicitor’s bill rendered to it later seeks to dispute the retainer to avoid the assessment. That approach is, understandably, more commonly taken by clients where the initiative for the assessment is taken by the solicitor. As this case shows, one of the many fascinating things about the law is that it provides endless opportunities for creative persons who seek to avoid their financial obligations, and their own solicitors, to try their luck.
30I also agree with the Solicitor’s position that Mr. Agha’s two companies should be added as parties to the Assessment, since their exclusion from the original requisition appears to have been an oversight. Mr. Agha obtained the Order for Assessment. He chose the unpaid accounts that he wanted to have assessed. In several of these proceedings Mr. Agha and one or both of his companies are named as defendants jointly, and the Solicitor’s legal work related to both Mr. Agha and his companies. The Order should be amended to include Mr. Agha’s two companies so that the Assessment Officer can conduct a full and comprehensive inquiry into all of the accounts listed by Mr. Agha. Given the nature of the proceedings for which the legal services were provided, Mr. Agha, who is the directing mind of these companies, cannot be separated from the companies for the purposes of the assessments.
Conclusion
31This Court Orders:
a. The Client’s motion to amend the Order for Assessment (Client’s Application) dated November 17, 2021 to include only the account dated August 12, 2021 is dismissed.
b. The Client’s motion for disclosure and production is dismissed.
c. The Solicitor’s motion to add 2551276 Ontario Inc. and 1552799 Ontario Inc. as Clients to the Order for Assessment obtained by Sam Agha on November 17, 2021, is granted.
d. The Solicitor’s motion to amend the Order of Assessment (Client’s Application) by correcting the Solicitor’s name to Nicholas C. Tibollo Professional Corporation is granted.
e. The Solicitor may serve Sam Agha, 2551276 Ontario Inc., and 1552799 Ontario Inc with any documents by email to: Saghacan@gmail.com.1
f. A Draft Order may be submitted by the Solicitor for issuance by the Registrar without the approval as to form and content by the Client or the corporations.
32The Solicitor was successful on all parts of the two motions heard. He seeks costs on a partial indemnity basis in the amount of $44,000 inclusive of HST and disbursements. The Client appears to have done everything in his power to frustrate and delay these motions. This conduct certainly increased the costs to the parties. Multiple affidavits were filed by Mr. Agha, but none of them were particularly relevant to the substantive issues to be determined on these motions. For the most part, the affidavits simply appended copies of the correspondence between Mr. Panzer and Mr. Tibollo. While of marginal relevance, these affidavits had to be reviewed by counsel for the Solicitor.
33Moreover, the Client’s motion to amend the Order for Assessment (Client’s Application) to delete the 28 unpaid invoices and to include only the paid account from August 12, 2021 appears to have been an effort to avoid paying the accounts rather than a good faith effort to resolve any genuine disputes.
34Costs of the motion before Casullo J. were “in the cause in the within matter”, which I understand to mean the motions referenced by Casullo J. which were heard by me.
35In these circumstances, and taking into account the factors set out in Rule 57.01, costs are fixed at $30,000, inclusive of HST and disbursements.
Justice R.E. Charney
Released: June 10, 2024
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Sam Agha Applicant
– and –
Nicholas C. Tibollo Respondent
REASONS FOR DECISION
Justice R.E. Charney
Released: June 10, 2024