Court File and Parties
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
JEREMY WOHLEBER
Applicant (Responding Party)
– and –
SMP LAW – SHAWN M. PHILBERT PROFESSIONAL CORPORATION
Respondent (Moving Party)
COUNSEL:
Kenneth R. Ukrainec, for the Applicant (Responding Party)
Shawn M. Philbert, for the Respondent (Moving Party)
HEARD: February 4, 2026
REASONS FOR DECISION ON ASSESSMENT
CALLAGHAN J.
1This is a motion by SMP Law – Shawn M. Philbert Professional Corporation (the “Solicitor”) to set aside and oppose the confirmation of the Report and Certificate of Assessment of Michael Boehm, Assessment Officer, dated August 12, 2024, ordering the Solicitor to repay Jeremy Wohleber (the “Client”) the sum of $59,517.10 plus 2.8% pre-judgment interest of $2,730.29 and costs of $10,000.00 or for a total amount of $72,247.39. The Solicitor requests that his bill be allowed in its original amount of $134,620.00.
2For the reasons that follow, this motion is dismissed.
Background
3The Client retained the Solicitor in respect of a matrimonial dispute. The Client previously had been represented by another law firm and, in fact, had been through a number of law firms. The Solicitor was retained to address an upcoming trial and Exit Pretrial.
4An hourly rate retainer agreement was signed. A $33,900 retainer was provided by the Client. It was understood that the ultimate bill for the Solicitor’s services would be greater than the initial retainer. The total amount billed was $134,630 inclusive of fees, disbursements and taxes.
5A 15-day trial was scheduled to be heard in a matter of weeks. The Assessment Officer identified that the issues to be addressed at trial were equalization of a cottage, spousal support and custody. Given the pending trial, the Solicitor “tweaked” affidavits that had been prepared by prior counsel, met with the Client and witnesses, and negotiated with opposing counsel. The property issues were resolved several weeks before trial and the parenting issues were resolved on the first day of trial. The trail did not proceed.
6Soon thereafter, the requisition for an assessment was filed. The Solicitor sought particulars of the grounds for the objection to his account. At a prehearing, it was ordered that all production must be made two weeks prior to the scheduled December 4 and 5, 2023 assessment. On November 16, 2023, counsel for the Client informed the Solicitor of the issues that the Client had with the accounts. The parties on agreement extended the date for production to November 27, 2023. The Solicitor provided a brief of documents on December 1, 2023, in response to the objections of the Client.
7After the hearing, it became clear that a portion of the evidence in chief of the Solicitor had not been transcribed and was not available to either the Assessment Officer or this Court. To be clear, this was only a portion of the Solicitor’s evidence in chief and not the entirety of his evidence in chief, and all his cross-examination was available.
8The Assessment Officer heard closing submissions in writing. There was no mention of the missing transcript in the closing submission of the Solicitor, although transcripts were available as references to the transcripts appear throughout the written submissions.
9The Assessment Officer provided written reasons. On several occasions, he commented that the documentation produced by the Solicitor was inadequate. The Assessment Officer applied the factors from Cohen v. Kealy & Blaney, (1985) C.P.C. (2d) 211. In the end, he reduced the account by some 45%, resulting in a refund to the Client of $59,517.10.
Issues
10The Solicitor raises several issues on this motion. As argued before me, much of his argument turns on the missing portions of his testimony not captured by the transcript. As a general submission, the Solicitor states that the missing transcript excerpts necessitate a rehearing. In addition, he says that the missing transcript excerpts would detail further evidence overlooked by the Assessment Officer. Finally, he says that the assessment officer’s reduction of 45% is unjustified. In the Solicitor’s factum, there were several other issues raised which were not pursued in oral argument.
The Standard of Review
11A motion to oppose confirmation of a Report and Certificate of Assessment is in the nature of an appeal, not a hearing de novo. The task for this Court is to determine if the Assessment Officer erred as a matter of principle. As stated by the Court of Appeal in Samuel Eng and Associates v. Ho, 2009 ONCA 150, at para. 1:
It is settled law that on an appeal from an assessment officer, the court is only concerned with questions of principle not with questions of amount or how the assessment officer exercised his discretion unless the decision is so unreasonable as to amount to an error in principle.
12Where the appeal addresses an error of law, the standard of review is correctness. Where the error is alleged to have been the application of a legal principle to the facts, the palpable and overriding standard is to be applied. This standard requires deference to the fact finding of the Assessment Officer and the assessment may only be varied where the determination is either not supported by any facts or there is a misapplication of a legal principle which is inextricably linked to the finding. In the case of an assessment, there is an overriding ability to review an award that is unreasonable.
13As succinctly stated by the Court of Appeal: “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”: Rabbani v. Niagara (Regional Municipality), 2012 ONCA 280, at para. 6.
Missing Transcript Excerpts
14The Solicitor made much of the missing transcript excerpts of his examination in chief. He asserts that but for the missing transcript excerpts, the errors of the Assessment Officer would be readily apparent.
15It is clear that the missing transcript pages are not an issue that is attributable to either party. It seems that the audio was misfunctioning. This is not a unique circumstance. Such unfortunate mishaps have happened in the past. There is a well-accepted process that appellate courts consider when addressing whether the absence of a transcript or excerpts of a transcript necessitates a new hearing or some other appellate relief.
16The Supreme Court in R. v. Hayes, [1989] 1 S.C.R. 44, at p. 48 stated that a gap in a transcript must give rise to real prejudice before any relief is granted. The Court stated:
A new trial need not be ordered for every gap in a transcript. As a general rule, there must be a serious possibility that there was an error in the missing portion of the transcript, or that the mission deprived the appellant of a ground of appeal.
17The courts have considered missing transcripts in several cases since Hayes. The courts have reiterated that it is not sufficient to raise the possibility of prejudice; rather, the party must demonstrate a real and serious risk of prejudice because the appellate court does not have access to the missing portions of the transcript: Canadian College of Business and Computers Inc. v. Ontario (Private Career Colleges), 2010 ONCA 856, at paras. 66-67.
18In R. v. Dobis, the court noted that where there is real concern about the relevance of missing testimony, the party concerned should tender fresh evidence of what was missing. In that way, the court will have an evidentiary basis for concluding there is or is not a real and serious risk of prejudice due to the absence of the missing transcript.
19In this case, there was an affidavit filed by an employee of the Solicitor who was at the assessment referencing the missing transcript excerpts but no evidence as to the nature of the missing testimony. In argument, I asked questions about the missing evidence, and the Solicitor responded that he was reluctant to say exactly what was missing as he did not have an exact recall and did not want to mislead the court. As such, there is no evidence as to exactly what is missing from the transcript. At most, I only have a submission as to topics that were said to have been covered.
20Moreover, in Price v. Sonsini, the court rejected a concern regarding missing transcripts because the concern was not raised at the hearing below but only in the face of an adverse award. The court noted, “To allow him to nullify the assessment now would be contrary to the law and to common sense”, at p. 263. In this case, I was not directed to any objection before the Assessment Officer regarding the missing portions of the transcript. As noted, it is clear from the written closing submissions that the transcripts were available, and the Solicitor filed closing submissions without any complaint as to the missing transcript excerpts.
21As to the general request to set aside the award below because of the missing transcript excerpts, there is no basis to set the award aside simply because a portion of the Solicitor’s testimony is missing. There is still a large portion of the chief and all of Solicitor’s cross-examination available. There is no evidence before me as to the substance of the evidence that is said to be missing. Indeed, arguments were made in closing before the Assessment Officer without reference to there being any missing transcripts and there was no objection until after the adverse award.
22Accordingly, I reject the general request to set aside the Assessment Officer’s decision because transcript excerpts are missing. However, I will address the specific argument raised by the Solicitor that the missing transcript demonstrates a real and serious risk of prejudice to this motion.
Time Expended
23It is acknowledged that the onus is on the lawyer to establish the reasonableness of the rendered accounts. To establish reasonableness, the Assessment Officer correctly identified the factors to be applied in Cohen v. Kealy & Blaney. One factor to be considered is the time expended by counsel on the retainer in issue. The Solicitor focused much of his oral argument on this factor of the test.
24In addressing the time expended by counsel, the Assessment Officer stated that the Solicitor took a very minimal approach to proving his accounts. He pointed out that there was a small sampling of emails and no print-out of the dockets produced by the Solicitor. The Assessment Officer also stated that there was no description of the docketing practices by the Solicitor. There was an account to the Client that listed the time expended by the Solicitor, but the Assessment Officer held that even if that information were accurate, there was insufficient evidence that the time expended was reasonable. Clearly, the Assessment Officer found the evidence to be weak or lacking as to how much time was expended by the Solicitor and whether the time was reasoanble. This was echoed by other comments in the decision. For example, the Assessment Officer had regard to the work done over the course of the retainer, but there was very little documentary evidence to establish what the Solicitor did during the retainer. In my view , the Assessment Officer was free to come to these conclusions based on the record and , aside from the missing transcript argument, I was not directed to any evidence that would suggest there was a misapprehension or disregarding of evidence that would give rise to a palpable and overriding error in the Assessment Officer’s assessment of the evidence or the application of that evidence to the test set out in Cohen v. Kealy & Blaney .
25The Solicitor argued that his oral testimony about docketing practices was part of the missing transcript excerpts. However, as noted, there was no fresh evidence filed before me as to what that testimony was. When asked about the detail of the alleged missing testimony by this Court, the Solicitor advised that he was not comfortable attesting to what was said given there was no transcript. As such, there is no evidence by which this Court can conclude the missing transcript excerpts will give rise to a real and serious risk of prejudice.
26In my view, there was sufficient evidence to support the conclusion of the Assessment Officer regarding the time expended by the Solicitor and there is no evidence that the missing transcript excerpts would alter that finding.
Request for Particulars
27The Solicitor states that he asked for particulars of the objections from the Client but that he did not receive sufficient responses. The Solicitor states there is an obligation on the Client to advise of the particulars of its objection to the Solicitor’s accounts. The Solicitor cites cases where it is noted that once the solicitor leads sufficient evidence to prove the accounts on a balance of probabilities, the onus shifts to the client to tender evidence in response: Starkman Barristers v. Cardillo, 2017 ONSC 5530, at para. 57. These cases merely set out the legal and evidentiary onuses on the parties. Contrary to the Solicitor’s submission, the cases cited do not require the Client to provide prior notice of the particulars of the objections as stated by the Solicitor.
28In any event, as noted, there was a preliminary meeting with the Assessment Officer prior to the assessment to set out the process for disclosure. The purpose of the meeting was to ensure that the parties had disclosure of the documents and of the issues prior to the assessment hearing. There was some modification by counsel to the schedule, but the directions were largely followed. After receiving correspondence from the Client as to his concerns with the accounts, the Solicitor augmented his disclosure in response.
29I see no issue with any disclosure, and I further see no specific issue with the process followed. Moreover, I was not directed to any issue whereby the Solicitor was taken by surprise or otherwise prejudiced. There is no basis to interfere with the award for this reason.
Reduction
30The Solicitor asserts that the Assessment Officer’s 52% reduction in the account was arbitrary. He asserts that there was nothing in the decision that warranted the Assessment Officer arriving at that amount.
31The assessment of an account is not a simple mathematical exercise. The Assessment Officer is required to have regard to the Cohen v. Kaealy & Blaney factors. In this case, the Assessment Officer specifically had regard to those factors and weighed them accordingly.
32While the Solicitor’s oral argument focused on the time expended, which is only one factor set out in Cohen v. Kealy & Blaney, further argument was made in the Solicitor’s factum that the Assessment Officer misapplied the test. The factum reproduces quotes from other cases as if they are submission in this case. As such, the argument being advanced in the factum as to the misapplication of the test is far from clear and frankly not grounded in the Assessment Officer’s decision. I am unable to address the argument in the factum in any meaningful way.
33Suffice it to say, I see no error in the Assessment Officer’s reasoning. He was applying a multi-factored test where he was entitled to weigh all the factors. He expressly notes that there was little or no evidence relating to many of the factors. This lack of evidence was relevant in the weighing exercise required by the test and to the Assessment Officer’s consideration as to whether the Solicitor met his onus to establish whether the accounts were reasonable. Contrary to the position of the Solicitor in his factum, the Assessment Officer’s decision is intelligible and reasoned. I see no inextricable legal error and no palpable and overriding error in either how the Assessment Officer addressed the evidence or the weighing of the factors.
34There was also an argument in the factum that the Assessment Officer was biased because of the scheduling of written argument which was said to favour the Client. There is no merit to this submission.
35In the end the Assessment Officer assessed a reasonable account to be $75,102 consisting of $65,000 in fees plus HST and disbursements. I see no error in his arriving at that amount. This amount is not unreasonable. In my view, the Assessment Officer, weighed the applicable factors having regard to the evidence and arrived at a reasoanble award.
36I see no error in the amount awarded by the Assessment Officer and dismiss the motion.
37The parties have agreed to a partial indemnity amount of $6,000 payable to the successful party on this motion. Accordingly, I award the Client that amount in costs.
Callaghan J.
Released: March 12, 2026