CITATION: Ah Lim v. Chagpar & Associates, 2026 ONSC 168

COURT FILE NO.: CV-20-00648174-0000

DATE: 20260127

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

MARIE MICHELLE AH LIM

Applicant

– and –

CHAGPAR & ASSOCIATES PERSONAL INJURY LAWYERS

Respondent

self-represented Applicant

Jessica Hewlett and Fahad Warraich, for the Respondent

HEARD: October 21, 2025

JOHN CALLAGHAN J.

ASSESSMENT OF COSTS DECISION

[1] This motion is brought by the Applicant (“Client”) to oppose confirmation of the Report and Certificate of Assessment of Regional Assessment Officer R. Bruce Brough (“the Assessment Officer”), dated March 17, 2023, arising from an assessment under the Solicitors Act, R.S.O. 1990,

c. S.15 that fixed the Respondent’s (“Law Firm”) account at $27,431.62 plus $35,000.00 in costs (“Decision”).

[2] As a result of errors discussed below, I am granting the motion and amending the amounts awarded in the Report and Certificate.

Background

[3] The Client was injured in an automobile accident. The Law Firm was retained by the Client in respect of her claim for statutory accident benefits (“SAB”). The retainer was a contingency fee agreement. The contingency fee was 33% of any award or settlement. The Client wished to settle her SAB claim. She felt that the Law Firm was not listening to her but rather wanted to establish her injury as catastrophic. She terminated the retainer and retained a new counsel to settle with the insurer. Soon thereafter, the SAB claim was settled.

[4] The settlement was for $90,000. That new lawyer charged a 30% contingency on the net amount after deducting disbursements.

[5] The retainer agreement with the Law Firm provided that if the Client terminated the relationship, the fee charged would be calculated on an hourly rate basis with the rates set out in the retainer agreement. Aside from the stipulated rates, there was no discussion with the Client what an hourly fee might look like. During the retainer, the Client was never advised as to the number of hours being incurred which might later form the basis of an hourly rate account.

[6] After the termination, the Law Firm delivered an itemized account for $45,254, inclusive of fees and disbursements. This included a small amount for a Canada Pension Plan Disability matter. The fee portion of the account was $25,430. The disbursements consisted of $14,562 owing to third party medical clinics and $5,261 for firm disbursements. The net recovery after disbursements was $70,000. The proposed fee was 36% of the net award after disbursements and without accounting for the fee to the subsequent counsel.

[7] By the time the assessment took place, the third-party disbursements of $14,562 had been paid by the Client.

[8] Discussions took place regarding settling the dispute, but they were unsuccessful. The Client’s husband wrote the Law Firm and candidly said that the Law Firm may well have achieved a greater settlement but that the Client wanted the matter settled. It was acknowledged that the Law Firm was entitled to a fee, but no agreement was reached. The Client then elected to challenge the account through the assessment process under the Solicitors Act.

[9] The subsequent counsel represented the Client at the assessment, filed the notice of motion to oppose but did not appear at the hearing. At the hearing, the Client was self-represented.

Issues

[10] The central issue is whether the Assessment Officer as a matter of principle erred in his decision. There was also a preliminary issue regarding the applicability of r. 58.10 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. Finally, there was an issue raised as to the costs awarded by the Assessment Officer.

Preliminary Issue

[11] As a preliminary issue, the Law Firm argues that contrary to r. 58.10 (1), the appellant failed to request the Assessment Officer to reconsider his decision. Rule 58.10 (1) reads as follows:

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.

[12] There was no filing of an objection in this case. The lawyer for the Client indicated that, in a prior matter, the Assessment Officer indicated that no objection needed to be filed so he did not do so.

[13] In my view, no objection was required. The requirement to provide a notice of objection does not apply where the challenge is one going to jurisdiction: RZCD Law Firm LLP v. Williams, 2016 ONSC 2122, at para. 34. In RZCD, a jurisdiction challenge was described as including “an appeal about the principle upon which the assessment proceeded or the fairness or natural justice of the assessment procedure rather than an appeal about particular items”: at para. 34 (emphasis added). In contrast, if the challenge relates to a “particular item” in the bill, then an objection is required. In this way, an assessment officer may correct a discrete item if appropriate.

[14] This motion to oppose raises issues regarding the principles upon which the assessment was conducted. While there were some discrete items raised, that is not the basis upon which I have decided this motion. Accordingly, as this motion raises matters of principle, no objection was required to be filed in this case, and the submission of the Law Firm is rejected.

[15] If an objection was required, I would relieve against the failure to file an objection in the circumstances. The court in Wilson v. Gunn & Associates, [1999] O.J. No. 658, discussed the case

law which permitted a motion to oppose where there was no objection due to an error, including by counsel: at para. 10; see also Ramos v. Eastern Airlines Inc., [1994] O.J. No. 2033, at paras. 3-

5. The principle in those cases is enhanced by the enactment of r. 2.01, which allows the court to address irregularities in the interest of ensuring a just determination of the real matters in dispute: Ilic v. Ducharme Fox LLP (Ducharme Weber LLP), 2022 ONCA 463, 162 O.R. (3d) 417, at para. 23.

[16] The prior lawyer for the Client had been advised by the Assessment Officer in a similar case, just weeks before the release of the Assessment Officer’s decision in this case, that no objection was required. It was for this reason that none was filed. As such, if an objection was required, it was an error by counsel in relying on the earlier statement of the Assessment Officer. As it happened, because of this error, counsel, with the assistance of LawPro, sought to remove himself as solicitor of record to the Client, which was granted.

[17] Given the circumstances, I conclude that the Client always intended to have the decision reviewed by this Court. But for the decision of counsel based on the earlier statement of the Assessment Officer, a notice of objection would have been filed. In these circumstances, if an objection was required, I would grant such relief as necessary to allow the motion to proceed.

The Motion to Oppose

[18] A 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.

[19] Where the appeal addresses an error of law, the standard of review is correctness. Where the error is alleged to have been the application of the facts to the applicable legal principles, the standard of palpable and overriding error 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.

[20] As 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, 106 L.C.R. 235, at

para. 6.

[21] The Assessment Officer correctly identified the governing authority in Cohen v. Kealey & Blaney (1985), 10 O.A.C. 344 (C.A.), which sets out nine factors to be considered on an assessment: at p. 346. In applying those factors, the Assessment Officer has the discretion to assign weight to each factor as deemed appropriate in the circumstances.

[22] The Assessment Officer went through all nine factors set out in Cohen. In applying the factors, he reduced the account by a small amount, both the Law Firm fees and disbursements.

[23] The Client submits that she was not expecting an account of the size rendered. She indicated that she had to pay her second lawyer the 30% contingency and now must pay an additional $27,431.26. This brings the total paid by her between the two law firms to over 60% of the total net settlement. She further states that she was not apprised of the fees being incurred during the retainer, as she was not given a breakdown of the time being spent. She says not only was the fee unexpected, but it was also neither fair nor reasonable in the circumstances.

[24] These are factors that ought to have informed the assessment. In my view, the Assessment Officer erred in failing to have regard to these factors in his assessment. To be clear, this is not a situation where the contingency fee agreement is being attacked for not meeting the “fairness” requirement in s. 24 of the Solicitors Act: see, e.g., Leduc v. Dufour, 2026 ONCA 3, at paras. 7 and 8. Rather, this is a question of reasonableness of the accounts being assessed.

[25] In considering the factors in Cohen, including the responsibility of the solicitor, the Assessment Officer had regard to the further considerations listed in Lamont v. Polak, [2013] O.J. No. 3443, at para. 43, which listed among other things:

• ensuring that the client understands the terms of the retainer agreement;

• keeping the client apprised of the status of the litigation and the costs thereof, and maintaining control of the costs; and

• providing the client with sufficient information in order to enable the client to make informed decisions.

The Retainer and Client Expectation

[26] The client is entitled to be informed from the outset of not just how the fee might be calculated but the overall exposure. Contingency fee agreements pose challenges as the lawyer has a financial interest in the outcome of the litigation. Due to the fiduciary relationship, the lawyer has a heightened obligation to ensure that the client is not only informed but understands the retainer and the financial exposure to the lawyer. This includes circumstances where the retainer may be terminated. In recent years, there has been an increased focus on ensuring that clients are fully informed and that lawyers are transparent in their dealings with the client.

[27] The province introduced amendments to the Solicitors Act to regulate contingency fee agreements, which had been used by the bar without regulation for some years. In 2020, both the province and the Law Society of Ontario introduced further regulations and guidance to ensure more transparency in contingency fee agreements: Contingency Fee Agreements, O. Reg. 563/20. The inherent conflict between a lawyer and his client when entering a retainer agreement caused both the government and Law Society to be concerned about the disclosure to clients when entering those agreements. More guidance was provided by the Law Society of Ontario in the form of a standard form agreement and information that should be made available to the client. These initiatives post-dated this retainer. However, they illustrate the concern that transparency requires that clients be fully and fairly informed of the exposure when entering a contingency fee agreement with a lawyer. Of course, as the fiduciary in the relationship, there is a heightened responsibility on lawyers when negotiating and advising a client on the financial implications of the retainer. These factors may be considered where the agreement is being challenged as being under s. 24 of the Solicitors Act but may also be considered when assessing if the fee is reasonable, including in assessing the expectation of the client and the overall reasonableness of the fee.

[28] In this case, the retainer agreement provided that the Client would pay up to 33% of any award or settlement of her claim. If she terminated the retainer agreement, the retainer provided she would be charged on an hourly rate basis for the work performed by the lawyer.

[29] While the retainer agreement provided a schedule of hourly rates, there was no corresponding written estimate as to the number of hours that the Law Firm might incur on her behalf nor was there any discussion with the Client as to the anticipated hours or fees that might be incurred. Moreover, throughout the retainer, there was never any reporting as to the hours that were in fact incurred. As such, while the Client was given a schedule of hourly rates, the Law Firm never gave her an estimate as to her exposure should she terminate the retainer nor did the Law Firm advise the Client as hours mounted on the file.

[30] The client has an absolute right to terminate a lawyer, even one acting on a contingency fee agreement: Solicitors Act, s. 30. As such, it is foreseeable that termination may occur, and a lawyer ought to address that consequence with the client at the time the contingency fee agreement is signed. This requires the lawyer to inform the client of more than the hourly rates to be charged. The work of lawyers is not transparent to clients. Clients have no idea of the hours needed to prosecute an undertaking. The client is dependent on the lawyer to understand the scope and implications of the retainer. Hourly rates alone provide no assistance to a client in understanding the potential exposure. The Client must have an appreciation of the actual exposure, rather than simply one element of the equation. The lawyer ought to be transparent as to the actual financial exposure, if the retainer is terminated.

[31] The factors in Cohen include the expectation of the client as to the fee. In Cohen, the lawyer gave the client a fee estimate range; the bill exceeded the estimate. The Court noted it was the responsibility of the lawyer to keep the client apprised as to the mounting costs. As the court stated: “Even in the case of an estimate, a solicitor is obliged to advise the client without delay of any developments that are likely to increase the fee beyond the estimate”: at para. 12. I see no reason why this rationale would not apply to a contingency fee agreement which converts to an hourly rate retainer on termination. The client has an absolute right to terminate a lawyer. The lawyer has an obligation to ensure that if the client chooses to do so that they understand the risk and fees that may be incurred. In this case, there is no evidence that the client was told this information.

[32] When considering the reasonable expectation of the Client as to the amount of the fees she should expect to pay upon termination, the Assessment Officer did not take into consideration what the Client understood to be her exposure on termination of the relationship. Rather, in a conclusory statement, the Assessment Officer stated that “[t]he client knew or ought reasonably to have known that these fees would be charged when the client terminated the retainer”. Moreover, it was assumed that the Client understood the retainer simply because she initialled each page. It was not possible for her to understand the exposure without being advised as to the likely number of hours required or some global estimate of potential fees if the retainer was terminated. In my view, her understanding that she would be charged on an hourly rate basis is not sufficient to understand her exposure. In addition, the Client was never given an interim statement of hours to understand the exposure as the matter progressed. This is akin to not advising a client when a fee estimate becomes stale as the file progresses, which was the case in Cohen.

[33] For the purpose of the assessment, the Law Firm produced a running account of the time incurred. It would be a simple thing for a statement of its hours to be provided to the Client on an interim basis as the file progressed. As it was, the Client had no information on her potential exposure while the lawyer had it readily accessible. There is no reason not to share the information, particularly given the fiduciary nature of the relationship. Of course, I am not implying that by providing such a statement that any such fee would necessarily be reasonable. But it would have assisted the Client in understanding her exposure if she terminated the relationship.

[34] The Assessment Officer went on to infer that the Client would have been advised of her exposure from her new counsel. In my view, this misses the point that the obligation rests with the Law Firm to advise the Client at the retainer’s outset of her potential exposure and to keep her apprised as the file progresses. I agree with Orkin and Schipper, authors of Orkin on the Law of Costs, 2nd Edition (Toronto: Thomson Reuters Canada, 2020), who write that, “It is incumbent upon a solicitor to ensure that, so far as competence allows, the client is told what legal costs lie ahead for the work required.”: ch. 3, at para. 93.

[35] In addition, in considering the expectation of the Client, the Assessment Officer noted that the Client’s subsequent solicitor received 30% of the settlement. He went on to note this was higher than what the Law Firm received in this assessment (although less than the requested fee by the

Law Firm). He made this observation in support of his conclusion that the Client should have expected a fee in the range of what was being sought and awarded.

[36] This rationale implies two things. First, that the subsequent solicitor’s fee was reasonable and, second, that the collective fee of the two firms was reasoanble. I do not think that either are fair conclusions.

[37] In respect of the second firm’s fees, there is nothing in the record that would allow one to conclude those fees were reasonable. The Client went to the second counsel because she wanted to settle, as the Law Firm was not responsive to her desire to settle. The second counsel settled soon after being retained. Given the short time the second lawyer had the file, it is hard to appreciate why a 30% contingency would be a reasonable fee in the circumstances. Moreover, a fee of 30% for a SAB settlement has been rejected as being unreasonable by this Court on numerous r. 7 approval applications for those under disability. Part of a r. 7 inquiry is whether the proposed fee of counsel is reasonable. The courts have routinely rejected contingency fees in the 30% range largely because the risk profile in SAB claims is much less than tort claims, and a fee in that range is deemed unreasonable.

[38] As Justice Edwards observed in Kevin Garnett by his Litigation Guardian Amanda Foster

v. The Estate of Joseph Eldon Deceased by its Executor Cecil James Eldon et al, 2025 ONSC 5527, at para. 13:

There is a recognized difference in the jurisprudence between a contingency fee charged by counsel as it relates to the conduct of a tort action versus the conduct of an accident benefit claim.

[39] In Norwegian v. Royal & Sunalliance Insurance Company of Canada, 2020 ONSC 3559, Justice Mew observed, at para. 32:

It is generally not appropriate to apply the same contingency fee rate to both the statutory accident benefits settlement as well as the tort settlement.

[40] In Garnett, Justice Edwards reviews several cases where contingency fees on SAB claims in the range of 30% had been reduced to as low as 5% and generally in the 10-20% range: at paras. 13-26. Of course, each case is fact specific.

[41] Given the rationale in the above cases, what the second lawyer charged does not mean that the fee charged to the Client by the Law Firm was either reasonable or to be expected.

[42] Moreover, the reasonableness of the fee to the Client must have regard to the results achieved in relation to the overall fee paid by the client. In this case, there was no regard to the overall amount paid by the Client in respect of her SAB claim. As it happened, the two sets of lawyers took the lion’s share of the settlement. The overall fee paid by the Client was not taken into consideration, other than by the Assessment Officer saying that if 30% was a reasonable fee for the one lawyer it was equally reasonable for the second. In my view, such an analysis puts the Client at the mercy of either never moving counsel or paying twice to resolve her file. Here, the fee incurred was some 60% of her net settlement, being well in excess of a reasonable fee to resolve a SAB claim. At the time the Client executed the retainer and in the absence of being informed as the matter progressed, there is no basis to conclude that she would expect that 60% of the net settlement would go to the lawyers or that such a fee would be reasoanble.

[43] For the above reasons, I find there was an error in principle in considering the reasonable expectations of the Client. In my view, it effected the outcome of this assessment.

[44] I also note that the amounts approved on the assessment included a modest amount for the time incurred by the Law Firm’s office director and legal assistants. As Justice Mew observed, “The services of a legal assistant (secretary) are typically part of a lawyer’s overhead expense and ought not to be a factor at all”: Norwegian, at para. 37. In essence, this was part of the Law Firm’s overhead which is not assessable as part of the fee: Orkin, ch. 3, at para. 99. This, too, is an error in principle as it was not properly an assessable amount.

[45] In the end, the account was assessed at $27,431, inclusive of fees, disbursements and taxes. The fees portion was $22,170 while the Law Firm’s disbursements were $4,493. The disbursements were those of the Law Firm and were in addition the third-party disbursements already paid. From the rendered account, this was a reduction of $798 in disbursements and a reduction of $3,260.46 in fees. To be clear, there was no error in the Assessment Officer’s consideration of the disbursements and that amount is not disturbed.

[46] Given the amounts in issue, it makes no sense to incur further expense in returning this matter to an assessment officer. The difficulty in this case is that the second lawyer’s account is not before the court. The client has already paid that fee. The Law Firm ought not to bear

responsibility for the second law firm’s accounts not being before this Court. In the circumstances, the most this Court can achieve is to consider what a reasoanble fee would be for this SAB claim and provide a reasonable proportion to the Law Firm, having regard to their efforts in achieving the results.

[47] In regard to the factors in Cohen, the Assessment Officer made certain findings that are not implicated by this decision, and I respect those conclusions when attempting to set a fee.

[48] Here, the settlement was $90,000. After disbursements, including those awarded by the Assessment Officer, the net settlement was in the range of $70,000. In my view, as a SAB settlement, the Client should have expected a fee in the range of $15,000 inclusive of tax had there been no change of counsel. Although the Client was not kept informed of the incurred hours, I do accept that there is a cost to changing counsel that ought to be figured into the fee. Nonetheless, the fee must still be reasonable having regard to both the value of the file and the increased work one could expect due to the change of counsel. I also accept the Law Firm carried the file for a longer period than the second lawyer, including the co-ordination of experts. In my view, a reasonable fee having regard to the settlements and the work performed would be $8,500 inclusive of tax plus the $4,493 in disbursements.

[49] The total assessed amount is amended and is now $12,993.

Cost Award Below

[50] On the issue of the costs of the assessment, given the above result, the cost award is also set aside. Had the amount assessed not been altered, I would have set aside the fee of $35,000.

[51] The fee was compensation for the work done by the Law Firm on its own behalf in responding to the assessment. The Law Firm asked for its time in preparing and attending the assessment, yet no dockets were produced. Without producing any dockets, the Law Firm sought

$50,000 in costs. The Law Firm was represented by its senior counsel who purported to charge

$850 per hour. Based on $850 per hour, the Assessment Officer concluded that the Law Firm sought 56 hours for compensation. The Assessment Officer set an hourly rate of $700 and assessed 50 hours as the appropriate number of hours and awarded $35,000.

[52] In fixing the costs, the Assessment Officer appeared to be conducting a solicitor client assessment in the absence of any dockets. He did not avert to the fact that the Law Firm was a

party to the assessment and made no reference to the case law relating to awards of costs for self-represented parties or the concept of proportionality.

[53] The Court of Appeal in Benarroch v. Fred Tayar & Associates P.C., 2019 ONCA 228, 433

D.L.R. (4th) 112, addressed a similar circumstance. That case involved lawyers seeking to be compensated for their efforts in preparing and attending an assessment against their former client. The Court set aside a cost award of about $60,000. In doing so, the Court had regard to the general principle that a party acting on their own behalf may be compensated for work that would otherwise be performed by a lawyer provided that the party can establish that they had forgone remunerative work. This general principle applies equally to lawyers acting on their own behalf in an assessment of costs as was the case in Benarroch. Indeed, in that case, the lawyers filed an affidavit attesting to not only the hours spent but that they lost remunerative work in attending to the assessment. No such evidence was filed in this case.

[54] In Benarroch, at para. 19, the Court of Appeal specifically noted that the lawyers “are not entitled to costs calculated on the same basis as those of the litigant who retains counsel”. For example, a party seeking costs is not entitled to be compensated for doing that which they would be expected to do as a party to the litigation. This would include tasks such as gathering documents or preparing for and attending as a witness at the assessment. The award of costs is for the lost opportunity to do remunerative work because they are acting as counsel in their own matter. In this case, there was no evidence of what the Law Firm did as it provided no dockets, and there was no evidence of lost remunerative work.

[55] Had that evidence been considered, the costs awarded would still be “only a ‘moderate’ or ‘reasonable’ allowance for the loss devoted to preparing and presenting the case”: Benarroch, at para. 32. As the court noted, fixing costs is not the same as an assessment of costs.

[56] In my view, the concept of proportionality, which has become commonplace since Boucher

v. Public Accountants Council for the Province of Ontario, 2004 CanLII 14579 (ON CA), 71 O.R. (3d) 291 (C.A.), must also be considered when fixing the “moderate” or “reasonable fee” in the circumstance where a lawyer looks to be compensated for the time incurred in an assessment, although it does not trump all other factors: Barry v. Anantharajah, 2025 ONCA 603, at para. 47. In that regard, consideration should be given to the amount of the recovery relative to the cost award: R & G Draper Farms (Keswick) Ltd. v. Nature’s Finest Produce Ltd., 2016 ONCA 626, 133 O.R. (3d) 395, at para. 23.

Here, the cost award exceeded the award by a significant amount. Consideration should have been given as to whether a cost award of $35,000 was proportionate to the result.

[57] Further, the overarching consideration in fixing costs is to arrive at an amount that is fair and reasonable for the losing party to pay in the proceeding, including what the losing party should expect to pay in the circumstances: Boucher, at para. 28. The analysis below focused on the Law Firm’s recovery without due regard to the expectations of the Client or what would be considered fair and reasonable.

[58] In this case, costs were fixed as if the Law Firm was assessing its account, albeit without any dockets. There was no consideration that the Law Firm’s hours included work that would have been done by it as a party to the assessment. The cost award was greater than the fee award by a considerable amount, and, as such, it was not a proportionate award given the amounts in issue. In my view, the award was neither modest nor reasonable nor proportionate to the amounts in issue or the outcome.

[59] Accordingly, I would have set aside the cost award for the assessment, even if the assessed amount was not varied.

Disposition

[60] The Certificate of Assessment of Regional Assessment Officer R. Bruce Brough, dated March 17, 2023, is hereby varied to award the Law Firm $12,993 inclusive of fees, disbursements and taxes to be paid by the Client.

[61] If either party seeks costs for either the assessment below or on this motion, they may provide submissions of no more than 10 pages along with any back-up to the opposing side within 10 days of the release of this decision. The opposing side may provide responding submissions of no more than 10 pages within 10 days thereafter. Any submissions shall be forwarded to my assistant who has transmitted this decision to the parties and shall be uploaded to case centre.

Callaghan J.

Released: January 27, 2026