Elkin Injury Law, Barristers, P.C. v. Amanda Lee Smith, 2025 ONSC 1384

Court File No.: CV-24-14871 (Welland)
Date: 2025/03/03
Ontario Superior Court of Justice

Between:
Elkin Injury Law, Barristers, P.C., Plaintiff
and
Amanda Lee Smith, Defendant

John Turner, Counsel for the Plaintiff
Julien Bonniere, Counsel for the Defendant

Heard: November 1, 2024, and in writing
Judge: I.R. Smith

Reasons on Motions

Introduction

[1] There are two motions before me. The plaintiff moves to strike the statement of the defence or, in the alternative, for orders compelling the defendant to provide an affidavit of documents and to attend an examination for discovery. By cross-motion, the defendant moves for a further and better affidavit of documents from the plaintiff.

Background

[2] In this action, the plaintiff law firm, Elkin Injury Law (“EIL”), sues the defendant, a former client, for unpaid legal fees.

[3] The defendant retained EIL on September 15, 2015, to assist her in recovering damages arising from a motor vehicle accident. EIL acted for the defendant until February 26, 2024. On that date, EIL received a letter from another law firm, Falconeri Rumble Harrison LLP (“FRH”), enclosing a direction signed by the defendant on January 22, 2024, advising EIL to transfer the defendant’s accident benefits file to FRH. At that time, the accident benefits claim being made on the defendant’s behalf was the only open file that EIL had for the defendant. Lawyers at EIL were in the midst of settlement discussions respecting that claim. On February 23, 2024, before they knew that the defendant had already retained FRH, EIL wrote to the defendant to advise that an offer to settle had been received.

[4] As FRH had requested in its February 26, 2024 letter, EIL rendered its account for services provided to the defendant from 2015 to 2024. That account was sent to FRH and to the defendant on March 15, 2024, and included fees incurred handling the accident benefits file. FRH made a small payment to EIL to cover EIL’s disbursements, but the defendant has not made any payment towards EIL’s legal fees.

[5] FRH resolved the defendant’s accident benefits claim with a full and final settlement on March 12, 2024.

[6] On that same date, FRH advised EIL that the defendant had given instructions to assess EIL’s account and that a notice of assessment would follow shortly. When no notice of assessment followed, EIL issued a statement of claim under the simplified rules on April 22, 2024. Both the statement of defence and an order for assessment were then served on EIL on May 16, 2024.

[7] An appointment for a preliminary assessment was fixed for June 14, 2024. However, on that date the assessment officer adjourned the matter sine die, observing in his endorsement that the style of cause for the assessment was incorrect (FRH appeared as the applicant when the defendant ought to have been the applicant) and that the order for the assessment had been obtained outside the one-month time limitation set out in s. 3(b) of the Solicitors Act, R.S.O. 1990, c. S-15.

[8] On June 21, 2024, EIL wrote to FRH providing EIL’s affidavit of documents and requesting delivery of the defendant’s affidavit of documents forthwith. EIL also proposed dates for discoveries and suggested that once the defendant’s affidavit of documents was received the parties should have a meeting as contemplated by Rule 76.08 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. Eventually, such a meeting was scheduled for July 2, 2024, by telephone.

[9] By letter dated June 25, 2024, FRH complained to EIL that EIL’s affidavit of documents was deficient because it did not include the documents in EIL’s accident benefits file. EIL responded by email that same day, saying that its affidavit of documents was sufficient and, in any case, that the defendant had completely failed to provide an affidavit of documents, which ought to have been delivered within 10 days of the close of pleadings (Rule 76.03(1)).

[10] On July 2, 2024, FRH failed to attend the telephone meeting scheduled for that day. Accordingly, EIL wrote to FRH and, among other things, advised that it had booked a date for the discovery of the defendant on August 8, 2024.

[11] FRH responded by letter on July 31, 2024, noting again that EIL’s affidavit of documents was deficient, and that EIL had refused to provide FRH with a copy of EIL’s accident benefits file. FRH advised that it would be bringing a motion for production of that file unless it was provided by August 9, 2024, and that the defendant would not be attending the examination for discovery scheduled by EIL.

[12] On August 7, 2024, EIL again wrote to FRH and noted that the defendant’s affidavit of documents had still not been delivered.

[13] On August 8, 2024, the defendant did not attend the examination for discovery.

[14] On August 13, 2024, EIL wrote to FRH and noted again that the defendant had failed to deliver an affidavit of documents. EIL also proposed new dates for the defendant’s discovery. As FRH did not respond to this letter, EIL unilaterally selected September 24, 2024 for the discovery and advised FRH of this date by letter dated September 11, 2024. In that letter, FRH again noted the failure of the defendant to provide an affidavit of documents.

[15] The defendant did not attend on September 24, 2024 and no affidavit of documents was delivered. By letter dated September 26, 2024, EIL asked again for the plaintiff’s affidavit of documents.

[16] In its affidavit for the defendant’s cross-motion, EIL’s affiant asserts that she “verily believes that the Defendant already has a copy of her [accident benefits] file…” and notes that the defendant is entitled to obtain a copy of the file directly from her insurer.

Positions of the Parties

[17] EIL submits that the defendant has provided no reason for failing to provide an affidavit of documents nor for failing to attend for discovery. The defence should therefore be struck or, in the alternative, the defendant should be ordered to deliver an affidavit of documents and to attend to be discovered.

[18] The defendant submits that it was reasonable for her not to deliver an affidavit of documents or to attend an examination for discovery given that EIL had failed to produce a proper affidavit of documents. On this point, the defendant argues on her cross-motion that EIL’s affidavit of documents is incomplete because it does not include the accident benefits file, including the notes and work product of EIL, all of which is relevant to whether EIL is entitled to the fees it claims.

[19] EIL notes that its alleged failure to produce a complete affidavit of documents cannot provide the defendant with an excuse for failing to produce her own affidavit of documents. With respect to EIL’s notes and work product, EIL argues that it is not required to produce such documents to the defendant. On this last issue, after the hearing of this matter, the parties produced further written submissions.

Discussion

[20] I agree with EIL that the defendant’s duties to produce an affidavit of documents and to attend discoveries stand independent of – and are not eliminated by – any failing of EIL to produce an adequate affidavit of documents. Indeed, in oral argument, the defendant did not press the argument to the contrary.

[21] I am not satisfied, however, that this is a case for striking the defendant’s pleadings. I am satisfied that an order to produce an affidavit of documents and to appear for examination for discovery are sufficient remedies in all the circumstances: Falcon Lumber Limited v. 2480375 Ontario Inc., 2020 ONCA 310, paras. 50–54, 57.

[22] More difficult is the defendant’s submission that EIL’s affidavit of documents is deficient because it does not include reference to EIL’s accident benefits file for the defendant. The defendant takes the position that a significant issue in this case will be the fairness and reasonableness of EIL’s fees: Borden Ladner Gervais LLP v. Cohen, para. 13. An assessment of the fairness and reasonableness of EIL’s accounts in respect of the accident benefits work done by the firm can only be undertaken with access to EIL’s “internal work product” or “solicitors’ work file.”

[23] Relying on Craig v. Riocan Real Estate Investment Trust, 2015 ONSC 307, para. 13, EIL argues that the reasonableness and fairness of fees are matters for an assessment hearing, which is what was in issue in Borden Ladner. By contrast, this action is about breach of contract in which EIL is not required to prove the reasonableness of its account. Nor is the case one of solicitor’s negligence. The firm’s work product, then, is irrelevant and the defendant is not entitled to production of it. EIL says that the defendant is simply trying to turn the action into an assessment of EIL’s work and the reasonableness of its fees when it failed to sue or crossclaim and allege negligence, and when it missed the limitation period for an assessment of EIL’s fees. None of that is EIL’s fault.

[24] The defendant cites different authority for the proposition that the reasonableness and fairness are in issue in a lawyer’s claim for unpaid legal fees: Jodi L. Freedman Professional Corporation v. Foulidis, 2024 ONSC 552, paras. 36–41, 53–55. In Freedman, Dow J. described the question before him as follows: “In short, what is a reasonable amount to award in all of the circumstances?”: para. 53.

[25] The defendant also relies on Monkhouse Law v. Belyavksy, 2024 ONSC 4970, paras. 35–36, 46–47, where Centa J. wrote (at para. 35) that the “court always retains a supervisory jurisdiction over legal fees.” Such supervision will require a consideration of the “reasonable value” of the lawyer’s work that takes into account all the relevant circumstances: paras. 36, 46–47. I note that Monkhouse was also a case about an assessment.

[26] I also note that the statement of defence alleges that the damages claimed by EIL are “excessive” and that EIL improperly commenced this action given that the appropriate forum for the relief sought by EIL is an assessment under the Solicitors Act. The statement of claim does claim damages for “breach of contract,” but also claims, “in the alternative, payment for legal services rendered, on a quantum meruit basis.”

[27] In all these circumstances, the defendant says that it is obvious that EIL’s work product on the accident benefits file must be produced.

[28] Neither party addressed issues of privilege in any detail in their factums for these motions but, in oral submissions in reply, counsel for EIL made it clear that EIL took the position that its work product was protected by privilege in favour of EIL even as against a former client. The parties then prepared supplemental written submissions on that issue.

[29] EIL relies on two decisions respecting production of a lawyer’s file. In Price v. Lambrinos, 2012 ONSC 4856, para. 41, Master Short ordered that the plaintiff lawyer deliver his file to the defendant (and former client) but excepted from that order the lawyer’s “notes, time dockets, internal memoranda, internal emails and the firm’s generated internal billing records. These documents belong to the solicitor.” This conclusion from Price was followed by Master Pope in Kastner v. Davis, [2017] O.J. No. 2176 (S.C.J.), para. 19.

[30] In the alternative, EIL asserts that its work product is protected by privilege. In this respect, EIL relies on Bulloch-MacIntosh v. Browne, 2016 ONSC 1281, paras. 34, 113, which involved somewhat different circumstances: the law firm in question was not a party to the litigation but was assisting its former client, one of the defendants, in making productions to the plaintiffs. Master Dash wrote (at para. 34) that the law firm was “entitled to assert and has asserted what I will refer to as work product privilege” over some documents, “primarily internal memos,” as against its former client. Master Dash continued to write that the documents “could more appropriately be referred to as the solicitor’s own documents, rather than client documents.” [1] In that case, the law firm listed the documents over which it asserted privilege in a schedule provided to its former client. Master Dash noted that the former client could challenge the claim of privilege on a motion against the firm (para. 113).

[31] As the defendant points out, each of the cases referred to by EIL in their supplemental submissions resulted in an order that the lawyers in question produce their file, albeit subject to certain exceptions. However, the defendant submits that there is no reason for any such exceptions in this case given the relevance of EIL’s work product to the litigation, the difficulty in proceeding without such documents (in this regard, see Verbeek v. Kooner, 2021 ONSC 7863, para. 120), and the fact that no privilege should protect EIL as against its former client, the defendant, on whose behalf any work product of the firm would have been undertaken.

[32] I am inclined to agree with the defendant that there is clear authority for an order that EIL’s accident benefits file be included in its affidavit of documents and produced to the defendant. I agree with the defendant that the fairness and reasonableness of EIL’s fees may be in issue in this action, including those fees charged in connection with the accident benefits claim, and that the accident benefits file is therefore relevant and ought to have been included in EIL’s affidavit of documents. In my respectful view, EIL’s own pleadings (to which I have referred at para. 26, above) demand this conclusion.

[33] I am not satisfied, however, that EIL can claim no privilege as against the defendant. Although I note that in none of the cases referred to me was the issue of whether documents said by a law firm to be privileged as against a former client were in fact privileged actually litigated, the cases taken as a whole do stand for the proposition that a law firm can at a minimum claim privilege over internal documents,[2] generally described as work product, and more particularly described as internal memoranda, emails, notes and dockets. It seems to me, however, that the existence of documents over which privilege is claimed must be disclosed by listing them in an affidavit of documents in schedule B. As Master Dash observed in analogous circumstances in Bulloch-MacIntosh, once that is done, it is open to the former client, in this case, the defendant, to challenge the claim of privilege on a motion brought against the firm, in this case EIL.

Conclusion

[34] Accordingly, I make the following orders:

a. The defendant will serve its affidavit of documents within 14 days of the release of these reasons.

b. EIL will serve a further and better affidavit of documents within 30 days of the release of these reasons, in which affidavit EIL will include all documents relating to the defendant’s accident benefits file, including, in schedule B, any documents over which it claims privilege.

c. The defendant will attend for an examination for discovery within 45 days of the release of these reasons.

[35] As there has been divided success on these motions, there will be no order as to costs.

Released: March 3, 2025

[1] See also paras. 23, 24, 28, 35, 36 and 47(4)(b).

[2] This seems especially true of an earlier decision in the Bulloch-MacIntosh litigation written by Firestone J. and summarized in the reasons of Master Dash. Unfortunately, I have been unable to locate a copy of the reasons of Firestone J. The citation for his judgment in the reasons of Master Dash is not correct.