CITATION: Devry Smith Frank LLP v. D’Souza, 2025 ONSC 2547

COURT FILE NO.: CV-22-00689633-0000

DATE: 20250428

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

DEVRY SMITH FRANK LLP

Plaintiff

– and –

LAURA PRIYA D’SOUZA aka LAURA P. D’SOUZA aka LAURA D’SOUZA

Defendant

Gabriella Schneider, for the Plaintiff

Laura Priya D’Souza, on her own behalf

HEARD: April 25, 2025

REASONS FOR JUDGEMENT

MERRITT J.

OVERVIEW

1The Plaintiff Devry Smith Frank LLP, brings this motion for summary judgment for the recovery of outstanding amounts owing with respect to unpaid invoices for legal services provided to the Defendant Laura Pryia D’Souza.

2The Defendant did not deliver any materials in response to the motion and did not appear at the motion although duly served with a Notice of Return of Motion indicating that the motion was returnable today.

DECISION

3For the reasons that follow the Plaintiff is entitled to judgment as sought for damages in the amount of $58,281.68.

POSTIONS OF THE PARTIES

4The Plaintiff submits that this is a straightforward collection of fees matter.

5In her Statement of Defence the Defendant pleads that the solicitor was negligent and that the accounts were “exorbitant, grossly excessive, misleading and not properly supported.”

6The Defendant did not file any materials on the summary judgment motion.

THE ISSUES

7There are two issues as follows:

Issue 1: Is this an appropriate case for summary judgment?

Issue 2: Is the Plaintiff entitled to damages for legal services rendered?

ANALYSIS

Issue 1: Is this an appropriate case for summary judgment?

8Rule 20.04(2)(a) provides: “The court shall grant summary judgment if the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence”.

9Rule 20.04(2.1) sets out the court's powers on a motion for summary judgment as follows:

10In determining under clause (2) (a) whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and, if the determination is being made by a judge, the judge may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:

1. Weighing the evidence.

2. Evaluating the credibility of a deponent.

3. Drawing any reasonable inference from the evidence.

11In Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at para. 66, the Supreme Court of Canada established a road map outlining how a motions judge should approach a motion for summary judgment:

12[T]he judge should first determine if there is a genuine issue requiring trial based only on the evidence before her, without using the new fact-finding powers. There will be no genuine issue requiring a trial if the summary judgment process provides her with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure, under Rule 20.04(2)(a). If there appears to be a genuine issue requiring a trial, she should then determine if the need for a trial can be avoided by using the new powers under Rules 20.04(2.1) and (2.2). She may, at her discretion, use those powers, provided that their use is not against the interest of justice. Their use will not be against the interest of justice if they will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole.

13There is no genuine issue requiring a trial when the court is able to reach a fair and just determination on the merits of the motion. This will be the case where the process (1) allows the court to make necessary findings of fact, (2) allows the court to apply the law to the facts, and (3) is a proportionate, more expeditious, and less expensive means to achieve a just result: Hryniak, at para. 49; Moffitt v. TD Canada Trust, 2023 ONCA 349, 483 D.L.R. (4th) 432, at para. 39.

14The court should use its enhanced powers and decide a motion for summary judgment only where it leads to “a fair process and just adjudication”: Ang v. Lin, 2023 ONSC 4446, at para. 15, citing Mason v. Perras Mongenais, 2018 ONCA 978, at para. 44, and Eastwood Square Kitchener Inc. v. Value Village Stores, Inc., 2017 ONSC 832, at paras. 3-6 (and cases cited therein).

15In Joshi v. Chada, 2022 ONSC 4910, Glustein J. set out the relevant legal principles applicable to summary judgment as follows:

(i) The purpose of r. 20 of the Rules is to (a) eliminate claims that have no chance of success at trial, and (b) provide judges with fact-finding powers to be used on a summary judgment motion: Hryniak, at paras. 44-45, 66;

(ii) The evidence on a summary judgment motion must enable the motion judge to be confident that they can fairly resolve the dispute: Hryniak, at para. 57;

(iii) The motion judge’s enhanced powers allow the court to weigh evidence, evaluate credibility, and draw reasonable inferences from the evidence: Mega International Commercial Bank (Canada) v. Yung, 2018 ONCA 429, 141 O.R. (3d) 81, at para. 83;

(iv) The focus of a summary judgment motion is not on what kind of evidence could be adduced at trial, but rather on whether a trial is required: Hryniak, at para. 56;

(v) The court is entitled to assume that it has all the evidence that would be available at trial related to the matters at issue: Portuguese Canadian Credit Union v. Pires, 2011 ONSC 7448, at para. 11, aff’d 2012 ONCA 335;

(vi) The moving party has the onus of proving that there is no genuine issue requiring a trial. Then, the onus shifts to the responding party to provide evidence of specific facts showing that there is a genuine issue requiring a trial: Sweda Farms Ltd. et al. v. L.H. Gray & Son Limited et al., 2013 ONSC 4195, at paras. 26-27, leave to appeal refused, 2014 ONSC 3016;

(vii) Summary judgment is not appropriate if the credibility of the parties is squarely in issue and requires a trial: Demetriou v. AIG Insurance Company of Canada, 2019 ONCA 855, 97 C.C.L.I. (5th) 204, at para. 9;

(viii) The more important credibility disputes are to determining key issues, the harder it will be to fairly adjudicate those issues solely on a paper record. “It is not always a simple task to assess credibility on a written record. If it cannot be done, that should be a sign that oral evidence or a trial is required”: Cook v. Joyce, 2017 ONCA 49, at para. 92, citing Trotter Estate, 2014 ONCA 841, 122 O.R. (3d) 625, at para. 55; and

(ix) The court must take “great care” in assessing credibility and reliability on affidavit evidence, since “[e]vidence by affidavit, prepared by a party’s legal counsel, which may include voluminous exhibits, can obscure the affiant’s authentic voice”. Consequently, the motion court must “ensure that decontextualized affidavit and transcript evidence does not become the means by which substantive unfairness enters, in a way that would not likely occur in a full trial where the trial judge sees and hears it all”: Baywood Homes Partnership v. Haditaghi, 2014 ONCA 450, 120 O.R. (3d) 438, at para. 44.

16The Defendant has not filed any materials.

17This is case straightforward and is appropriate for summary judgment.

18The Plaintiff’s materials allow me to reach a fair and just determination on the merits. I am satisfied that I can even without the powers under rr. 20.04(2.1) and (2.2) come to a fair and just result. I can make the necessary findings of fact and apply the law to those facts based on the record before me.

19As the Court of Appeal said last year, “…the summary judgement is tailor-made to enforce liquidated claims by creditors against debtors and guarantors”: 2275518 Ontario Inc. v The Toronto-Dominion Bank, 2024 ONCA 343 at para 44.

20I am satisfied that there is no genuine issue that requires a trial.

Issue 2: Is the Plaintiff entitled to damages for legal services rendered?

21The Plaintiff is a law firm in Toronto.

22In March 2018, the Defendant retained the Plaintiff to represent her in child protection and family law matters.

23The Defendant signed the Plaintiff’s Retainer Agreement on March 9, 2018.

24The Plaintiff provided legal services in accordance with the retainer on an hourly rate basis.

25The Plaintiff rendered invoices to the Defendant for services provided by the Plaintiff pursuant to the retainer.

26The Plaintiff rendered 5 invoices to the Defendant between April 2, 2018 and September 26, 2018 which the Defendant paid.

27Between October 16, 2018 and February 11, 2019 the Plaintiff rendered 6 invoices to the Defendant which the Defendant has not paid.

28The work done by the law firm included the following: three motions in three proceedings (appeal, child protection and domestic); questioning of the parties; obtaining and reviewing tens of thousands of pages of disclosure: assisting the Defendant with her education matters, such as difficulties with school bussing and other conflicts she had with her daughter's school principal; providing the Defendant with strategies for her interactions with her dauthter’s father; assisting the Defendant with planning and carrying out access exchanges, assisted her with organizing her therapy and courses that the Children’s Aid Society expected her to take; assisting the Defendant with correcting Canada Revenue Agency records to show when the children were in her care for the purposes of receiving benefits, and extensive communication with the Defendant and her sister.

29The law firm was successful on the substantive issues in all of the proceedings.

30From time to time the Defendant expressed concern about the amount of the legal bills and the law firm provided courtesy discounts. This created a situation where the Defendant expected to negotiate a discount after each bill.

31Eventually the law firm refused to grant further discounts and the Defendant stopped paying the legal bills.

32The law firm kept in regular contact with the Defendant and only stopped working for her when she stopped paying her bills.

33A lawyer is entitled to commence an action to recover fees: Gilbert's LLP v. David Dixon, 2017, ONSC 1345 at para.33.

34On the summary judgment motion the Plaintiff provided an affidavit sworn by John P. Schuman in which he responds to the allegations in the Statement of Defence containing various complaints.

35In any event, where a party fails to file an affidavit in response to a motion for summary judgment, the court is entitled to infer that the responding party was unable to attest to the facts required to advance its position: Fasken v. Time/System Int. APS (1986), C.P.C. (2d) 1(Ont. H.C.) at paras. 2 and 6.

36I find that the Plaintiff is entitled to judgment in the amount of $58,281.68.

PREJUDGMENT INTEREST

37The Retainer Agreement provides:

27. You understand that accounts will be rendered on a periodic basis, and that payment of any accounts rendered is due upon receipt. Any account not paid within 30 days of the date rendered will bear interest pursuant to the Solicitors Act. You also agree that non-payment of any account within 30 days from the date rendered shall be grounds for immediate termination of this retainer. Responsibility for payment of all accounts rendered is not contingent in any way upon the outcome of the matter or result obtained.

38The invoices rendered provide that they are due on receipt and interest accrued on amounts outstanding for more than 30 days at the rate of 12.00% per year.

39The Plaintiff claims prejudgment interested on the invoices from the dates upon which they came due to the present.

40The amount of time that it has taken for this summary judgment motion to be heard requires some explanation. The following is a brief chronology of the key events:

• The invoices in issue were rendered between October 16, 2018 and February 11, 2019.

• On December 17, 2019 the Plaintiff issued the Statement of Claimin Milton, Ontario.

• On January 15, 2020 the Defendant served and filed a Notice of Intent to Defend and served her Statement of Defence on February 5, 2020.

• On February 21, 2020 the Defendant brought a motion to transfer the case to Toronto.

• On June 10, 2021 Wilson J. ordered the case transferred to Toronto.

• On September 13, 2022 the Plaintiff filed requisition to transfer the file in accordance with the Defendant’s motion.

• Between Sept 13, 2022 and June 2024 the Plaintiff made continuous enquiries of the court about the transfer.

• In June 2024 Plaintiff received a Toronto court file number and scheduled CPC for Dec 18, 2024.

• On December 18, 2024 this summary judgment motion was scheduled for April 25, 2025.

41The Plaintiff ought to have commenced the action in Toronto. Had the Plaintiff done so, the motion to transfer would not have been necessary. Having said that it should not have taken the court 21 months to effect the transfer.

42At the hearing of the motion, Counsel for the Plaintiff abandoned the claim for prejudgment interest. Given that there is no claim for prejudgment interest, I do not need to address the rate of prejudgment interest.

COSTS

43At the hearing of the motion, Counsel advised that the Plaintiff is seeking partial indemnity costs in the amount of $2,500.

44I have reviewed the Plaintiff’s Costs Outline. I have considered the factors under r. 57.01(1) including the time spent, rates charged, reasonable expectations of the parties, as well as the amount claimed by the Plaintiff in the statement of claim. In my view, having regard to all of the factors, I find that $2,500 inclusive of HST and disbursements is appropriate.

Merritt J.

Released: April 28, 2025

CITATION: Devry Smith Frank LLP v. D’Souza, 2025 ONSC 2547