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Representation - Lawyers - Assessment of Lawyer's Bills (2). 1395804 Ontario Ltd. (Blacklock’s Reporter) v. Hameed
In 1395804 Ontario Ltd. (Blacklock’s Reporter) v. Hameed (Div Court, 2024) the Divisional Court dismisses an appeal of a decision made on a solicitor's assessment hearing ["an application for assessment of his account pursuant to s. 3 of the Solicitors Act"] (a certificate of assessment of account).
Here the court considers the legal effect of failing to file an objection to a certificate of assessment, under RCP 58.10:Issues
[24] Two main issues are raised on this appeal. The first is: did the motion judge err in finding that the failure to file an objection was fatal to Blacklock’s entitlement to challenge the assessment officer’s report? The second is: did the motion judge err in finding that the Assessment Officer had properly exercised her jurisdiction to award costs to Hameed?
Failure to File an Objection
[25] Section 17 of the CJA refers to the requirement to file an objection under Rule 58.10 with respect to an “assessment of costs issued in a proceeding in the Superior Court of Justice”. However, section 3 of the Solicitors Act speaks only to the assessment of a solicitor’s bill. Blacklock’s points out that an assessment of a solicitor’s account under s. 3 is not an assessment of costs issued in a proceeding in the Superior Court of Justice.
[26] As noted, the decision in RZCD establishes that the ability to challenge the decision of an assessment officer on a solicitor’s bill requires the delivery of an objection prior to the issuance of a certificate of assessment. The Divisional Court suggests in its decision that the objection requirement applies to both assessments of solicitors’ bills under the Solicitors Act as well as assessments of costs in proceedings pursuant to s. 17 of the CJA. Although some lower court decisions have questioned RZCD, it has remained binding upon them.
[27] Blacklock’s relies upon the observation made in the decision in Moore v. John A. Annen Barrister Professional Corporation, 2017 ONSC 7720 that the assessment of costs between parties to litigation operates under a different statutory regime than the assessment of lawyers’ accounts to their own clients. Accordingly, to the extent that the Divisional Court concluded otherwise in RZCD, Blacklock’s submits that the Divisional Court erred.
[28] Further, Blacklock’s submits that the approach taken in RZCD has sown confusion, hampered access to justice for self-represented individuals, and worked against the public policy goal of permitting clients to challenge accounts rendered by solicitors.
[29] Hameed submits that the adoption of the objection requirement is a wise practice that preserves judicial resources, and there is no practical reason why this requirement should be different for an assessment under s. 17 of the CJA and one pursuant to the Solicitors Act. He also notes that Rule 1.04(20 permits reliance on analogous rules which he argues ought to apply here. Above all, the objection requirement permits any error to be corrected or any decision to be clarified before a certificate of assessment is issued, thus reducing potential areas for further conflict.
[30] Furthermore, Hameed submits that this aspect of the appeal is purely academic. It is clear that Blacklock’s no longer questions the Assessment Officer’s jurisdiction and has advanced no other substantive grounds to set aside the Assessment Officer’s decision on the merits. There is no real issue raised that might create a jurisdictional exception in this case.
[31] The motion judge agreed with Hameed’s submissions on this issue, as do I. In particular, the academic nature of Blacklock’s argument would mitigate against the appropriateness of a re-visitation by this Court of an issue already decided by a panel of the Divisional Court simply on the hypothetical postulation advanced by it.
[32] Accordingly, I would not give effect to this ground of appeal. . 1395804 Ontario Ltd. (Blacklock’s Reporter) v. Hameed [appeals]
In 1395804 Ontario Ltd. (Blacklock’s Reporter) v. Hameed (Div Court, 2024) the Divisional Court sets out the (conventional) appeal route for challenges to assessment hearing decisions [under Solicitors Act s.3], and the applicable SOR:Jurisdiction
[22] An appeal lies to the Divisional Court from a final order of a judge of the Superior Court of Justice for a single payment of not more than $50,000, exclusive of costs, pursuant to ss. 19(1)(a) and (1.2)(a) of the Courts of Justice Act, R.S.O. 1990, c. C.43 (the “CJA”).
Standard of Review
[23] The standard of review on an appeal from a decision of a motion judge on a motion to refuse certification of an Assessment Officer, in itself akin to an appeal (see: Heyday Homes Ltd. v. Gunraj, (2005) 44 CLR (3d) 169 (Ont. S.C.J.); Samuel Eng & Associates v. Ho, 2009 ONCA 150 (C.A.)), is well-established. The order of an Assessment Officer is discretionary and the hearing before the motion judge or before this Court on further appeal is 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 (see: Rabbani v. Niagara (Regional Municipality) 2012 ONCA 280). . 1395804 Ontario Ltd. (Blacklock’s Reporter) v. Hameed
In 1395804 Ontario Ltd. (Blacklock’s Reporter) v. Hameed (Div Court, 2024) the Divisional Court dismisses an appeal of a decision made on a solicitor's assessment hearing ["an application for assessment of his account pursuant to s. 3 of the Solicitors Act"] (a certificate of assessment of account).
These quotes are a sample of this little-litigated area of law, setting out the applicable Rules for objection [under RCP 58]:[9] When all efforts to obtain payment of his account failed, Hameed brought an application for assessment of his account pursuant to s. 3 of the Solicitors Act.
[10] Initially, Blacklock’s disputed the existence of any retainer of Hameed for provision of legal services. However, at the outset of the hearing, Blacklock’s conceded there was a valid retainer before the Assessment Officer.
[11] The assessment hearing took three days to complete. Over the course of the lengthy hearing, Blacklock’s challenged the full amount claimed for services by Hameed. Among other things, Blacklock’s criticized the amount of time expended on tasks performed by Hameed, questioned the validity of his dockets, attacked his competence in handling the assignments, and submitted that Hameed’s abrupt termination of his retainer should operate to relieve Blacklock’s of any requirement to pay for his services.
[12] The Assessment Officer ultimately determined that $45,000.00 was owing to Hameed by Blacklock’s for legal services provided by him and adjusted the amount owing pursuant to the account accordingly.
[13] After receiving submissions on costs from the parties, costs in the amount of $18,740.82 were ordered by the Assessment Officer to be paid by Blacklock’s to Hameed.
Decision of the Motion Judge
[14] Blacklock’s brought a motion seeking an order refusing confirmation of the assessment. It argued before the motion judge that the Assessment Officer lacked jurisdiction to conduct the assessment because the retainer of Hameed was in dispute, that her reasons for arriving at the assessed amount were inadequate, and that an error in principle was made in awarding costs against Blacklock’s when Hameed’s account for services provided had been significantly reduced upon assessment.
[15] The motions judge noted that Blacklock’s had failed to file any objection following the assessment and prior to the issuance of the certificate of assessment as required by Rules 58.09 and 58.10 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. Similarly, Blacklock’s had not asked the Assessment Officer to delay the issuance of the certificate to permit it to do so.
[16] Blacklock’s argued that the filing of an objection was not necessary because a jurisdictional issue had been raised by it. It also submitted that its failure to file an objection was a mere procedural irregularity that the court could ignore given its inherent jurisdiction over the subject of costs.
[17] The motion judge referred to the decision of the Divisional Court in RZCD Law Firm v. Williams, 2016 ONSC 2122 (Div. Ct.) (“RZCD”) for a review of the legislative jurisdiction and then-applicable Rules when appealing a certificate of assessment.
[18] The motion judge’s analysis of RZCD is contained in paragraphs 20-22 of the decision under appeal, as follows:[20] In RZCD Law Firm v. Williams, 2016 ONSC 2122, the Divisional Court reviewed the legislative jurisdiction and civil rules on appealing a certificate of assessment commencing at para. 30:Section 6 (9) of the Solicitors Act provides that a motion to oppose confirmation of the certificate shall be made to a judge of the Superior Court of Justice.
Section 17 (b) of the Courts of Justice Act provides for appeals to the Superior Court of Justice from a certificate of assessment in respect of which an objection was served under the Rules of Civil Procedure. Section 17 (b) states:17. An appeal lies to the Superior Court of Justice from, …
(b) a certificate of assessment of costs issued in a proceeding in the Superior Court of Justice, on an issue in respect of which an objection was served under the rules of court. Rule 58.11 provides that an appeal under s. 17 (b) of the Courts of Justice Act from a certificate of assessment in respect of which an objection was served is governed by rule 62.01 (which is the rule that provides the procedure for appeals from an interlocutory order). Rule 58.11 states:APPEAL FROM ASSESSMENT
58.11 The time for and the procedure on an appeal under … 17 (b) … of the Courts of Justice Act from a certificate of an assessment officer on an issue in respect of which an objection was served is governed by rule 62.01. As may be noted, appeals or opposition to the confirmation of a certificate of an assessment officer involve the delivery of objections. The procedure with respect to serving objections is a procedure designed to provide the assessment officer with an opportunity to reconsider and review his or her assessment in light of the objections and to amend his or her decision and certificate accordingly. The procedure is set out in rules 58.09 and 58.10, which state:CERTIFICATE OF ASSESSMENT
58.09 On the assessment of costs, the assessment officer shall set out in a certificate of assessment of costs (Form 58C) the amount of costs assessed and allowed.
OBJECTIONS TO ASSESSMENT
58.10 (1) 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.
(2) A party on whom objections have been served may, within seven days after service or such other time as the assessment officer directs, serve a reply to the objections on every other interested party and file it with the assessment officer.
(3) The assessment officer shall then reconsider and review the assessment in view of the objections and reply and may receive further evidence in respect of the objections, and the assessment officer shall decide on the objections and complete the certificate accordingly.
(4) The assessment officer may, and if requested shall, state in writing the reasons for his or her decision on the objections. [21] Under this procedure, so long as the objecting party made a request for the assessment officer to withhold her certification, time would be afforded to that party to do so.
[22] Blacklock is correct that an exception to the above procedure exists for appeals that relate to the jurisdiction of the assessment officer: RZCD at para. 34. For those types of appeals, objections are not required to be delivered. This makes sense given the purpose of the objection is to provide the assessment officer with an opportunity to reconsider or to provide additional reasons to explain his or her rationale. If the appellant is arguing the assessment officer didn’t have jurisdiction in the first place, a process that allows time for reconsideration would make no sense. [19] The motion judge determined that the jurisdictional exception did not apply in this case because Blacklock’s had conceded at the assessment hearing that the existence of a retainer was not in dispute. The only alleged “challenge to the retainer” concerned the hourly rate charged by Hameed – an issue of quantum, not retainer. The motion judge therefore determined that the assessment officer had full jurisdiction, and that there was no bona fide jurisdictional exception that pertained to this case to eliminate the requirement to file an objection prior to issuance of the certificate as required by the Rules.
[20] Blacklock’s further submitted that the motion judge had an inherent discretion to consider the costs of a proceeding despite any requirement to file an objection, and that such an error in principle by the Assessment Officer justified intervention. Specifically, Blacklock’s argued that when an Assessment Officer substantially reduces an account, costs of the assessment should be awarded to the client. Since the Assessment Officer did not follow that general guideline, Blacklock’s characterized that, and any failure to provide adequate reasons for doing so, as an error in law.
[21] The motion judge noted that an Assessment Officer enjoys significant discretion in any award of costs. She was not persuaded that adequate grounds existed to interfere with the exercise of that discretion in this case. Moreover, several factors were present in the proceeding that made the award one that was well within her discretion to order. . Investigation Counsel PC v. Dorrett
In Investigation Counsel PC v. Dorrett (Div Court, 2024) the Divisional Court illustrates that a solicitor-client fee dispute need not only be conducted using Solicitor's Act procedures, but can be sued for in the normal course:[24] The Appellants argue that the motions judge improperly applied the test in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87. They argue that, given the obligations of a lawyer to their client, the motions judge should have applied a special test for summary judgment. I disagree.
[25] There are several problems with the type of specialized test for summary judgment that the Appellants are suggesting. First, as described above, the Appellants did not avail themselves of the process as set out in the Solicitor’s Act, R.S.O. 1990, c. S 15. Having failed to use those processes, it is difficult to see how they would be entitled to those protections. Put another way, it is difficult to justify extending the protections of the Solicitor’s Act to a party that has failed to adhere to the timelines under the Act.
[26] In this regard, the Appellants rely on Price v. Sonsini (2002), 2002 CanLII 41996 (ON CA), 60 O.R. (3d) 257 (C.A.) and specifically on the Court of Appeal’s statements that the court has an inherent jurisdiction to control the conduct of solicitors. While I agree with the Appellants’ general proposition, I see no reason why it changes the analysis in the case before this Court. The Appellants failed to comply with the timelines under the Solicitor’s Act, and the Respondent was entitled to enforce its claims for unpaid legal fees in the courts. . Crosslink Bridge Corp. v. Fogler, Rubinoff LLP
In Crosslink Bridge Corp. v. Fogler, Rubinoff LLP (Ont CA, 2024) the Ontario Court of Appeal considered the distinct effect of the separate dates of tendering solicitor's accounts on the procedures for requisitioning assessment of the account, depending on whether the requisition is made one or twelve months after delivery of the accounts [Solicitors Act s.3]:The motion judge erred in her analysis of the last three accounts
[11] The motion judge applied the same analysis to all 32 accounts in considering whether assessment was statute-barred. This was a legal error. The timing and payment status of the last three accounts required a different analysis under the Act and the Superior Court’s inherent jurisdiction over the assessment of accounts. In oral submissions, the respondent maintained that the reference for assessment of the last three accounts was statute-barred, but did not press the point.
[12] The motion judge approached the issue of the limitation period for all the accounts on the basis that the appellants were required either: (i) to show that all the accounts were interim and not final, or (ii) to establish special circumstances. This was correct for the first 29 accounts, but not for the last three accounts. We address the second-last and third-last accounts separately from the last account, as they raise different considerations.
[13] The second-last and third-last accounts were dated November 27, 2017 and April 6, 2018. They were not paid by the appellants.[1] As we have outlined above, the trial judge did not err in finding that these accounts were final accounts. However, she erred in holding that the appellants were required to establish special circumstances to have these accounts referred for assessment. A different legal analysis applies to accounts where the assessment is sought between one and 12 months after the account is delivered and the account remains unpaid by the client.
[14] A client is not required to show special circumstances in order to obtain a referral for assessment of accounts that have been delivered more than one month but less than 12 months before an assessment is sought, and that remain unpaid. Rather, a judge of the Superior Court has discretion whether to exercise its inherent jurisdiction to order an assessment: Fellowes, at pp. 302-03; Enterprise Rent-a-Car, at pp. 260-61; Re Reid and Goodman & Goodman (1974) O.R. (2d) 447 (H.C.); Bunt v. Assuras (2003), 2003 CanLII 17952 (ON SC), 63 O.R. (3d) 622 (S.C), at paras. 13 and 32; Fiset v. Falconer, 2005 CanLII 33783 (Ont. S.C.), at para. 34. In considering whether to exercise the discretion, a judge need only be satisfied that it is just and equitable that a reference for an assessment be made: Bunt, at para. 13. In Fellowes, this court held that, for unpaid accounts where assessment is sought between one and 12 months after the account is delivered: “In the usual circumstances, little is required for that jurisdiction to be exercised” (at p. 303).
[15] The Superior Court’s discretion with respect to ordering assessment of unpaid accounts where referral for assessment is sought between one and 12 months after the account is delivered derives from the court’s inherent jurisdiction as circumscribed by the Act. The statutory bar in s. 3(b) of the Act applies to disallow an automatic right of assessment by requisition where assessment is sought more than one month after the account was delivered. However, the requirement to establish special circumstances in ss. 4 and 11 of the Act do not apply because the accounts are less than 12 months old (s. 4) and unpaid (s.11).
[16] In this case, the motion judge erred in law in applying a requirement to establish special circumstances to the second-last and third-last accounts because they had been rendered less than 12 months before the assessment order and remained unpaid.
[17] We acknowledge that the appellants moved by requisition under s. 3 of the Act and did not seek an order for assessment from a judge until after the respondents raised the jurisdictional issue at the outset of the assessment hearing. However, the respondents waited three years to raise the jurisdictional issue. Had the respondents raised the jurisdictional issue in a timely way, the appellants would have been in a position to seek an order for assessment from a judge within 12 months after the second-last and third-last accounts were issued. In the circumstances, it is appropriate to refer the second-last and third-last accounts for assessment.
[18] With respect to the last account, the trial judge erred in law in finding it was statute-barred. No limitation period was triggered for the last account as it fell within s. 3(a) of the Act. At the time the assessment order was requisitioned, on October 3, 2018, the last account had not yet been delivered to the appellants. It was delivered on October 22, 2018. It was also not paid by the appellants. Requisition of delivery of the last account and referral for assessment fell squarely within s. 3(a) of the Act. As a result, reference for assessment of this bill was not statute-barred. . Crosslink Bridge Corp. v. Fogler, Rubinoff LLP
In Crosslink Bridge Corp. v. Fogler, Rubinoff LLP (Ont CA, 2024) the Ontario Court of Appeal considers an appeal of a motion judge's order that reversed an associate judge's Solicitors Act (SA) accounts order as being entirely limitation-barred [SA s.4]. On further appeal, this court partially-reversed and found more recent accounts as being timely:No error in finding that the first 29 accounts are statute-barred
[6] In light of the finding that all of the accounts were final, there is no error in the motion judge’s conclusion that the first 29 accounts at issue are statute-barred. This result follows from both s. 4 and s. 11 of the Act.
[7] The first 29 accounts were delivered between May 5, 2014 and May 29, 2017, inclusive. They were all paid by the appellants. The assessment order was issued October 3, 2018. Unless special circumstances are established by the appellants, s. 4(1) of the Act bars a reference for assessment after 12 months from the delivery of the account. Unless special circumstances are established, s. 11 of the Act bars a reference for assessment where an account has been paid. The appellants did not seek to establish special circumstances either before the motion judge or in this court.
[8] The appellants argued that the first 29 accounts could be assessed because, in their submission, the assessment order was obtained pursuant to s. 3(a) of the Act, which has no limitation period. We reject this submission, except in relation to the last account, which we discuss further below.
[9] Section 3(a) of the Act allows a client to requisition the delivery and assessment of a solicitor’s account, where the retainer is not disputed and there are no special circumstances. Read in conjunction with s. 3(b), which provides for requisition of an assessment “of a bill already delivered, within one month from its delivery”, it is clear that s. 3(a) of the Act only applies in circumstances where a solicitor has not yet delivered an account at the time the assessment is requisitioned. Section 3(a) has no limitation period because a limitation period in relation to assessment of a solicitor’s account cannot run before an account is delivered to the client.
[10] The assessment order issued by requisition in this case does not reference either s. 3(a) or 3(b) of the Act. The text on the preprinted portion of the order includes language ordering the solicitors to “deliver to the applicant(s) a bill of fees, charges and disbursements” within 14 days of service of the order. That language appears consistent with s. 3(a) of the Act. But whatever the language of the order, the circumstances are clear that s. 3(a) of the Act cannot apply to the first 31 accounts because they had already been delivered to the appellants at the time the assessment order was requisitioned. . Crosslink Bridge Corp. v. Fogler, Rubinoff LLP
In Crosslink Bridge Corp. v. Fogler, Rubinoff LLP (Ont CA, 2024) the Ontario Court of Appeal held that there was no distinction between 'interim' versus 'final' accounts within the meaning of the Solicitors Act (which, if there was, would presumably have extended the applicable limitation period to the date of the last 'final' account):No error in finding that all of the accounts were final accounts
[3] The appellants argue that the motion judge erred in finding that all of the accounts were final accounts. The appellants argue that only the last account, delivered on October 22, 2018 (after the assessment order was issued), is a final account and that the previous 31 accounts are interim. The appellants argue that the motion judge erred in law in failing to consider if the accounts were part of “a continuum”. The appellants further argue that the motion judge made a palpable and overriding factual error in finding that all of the accounts were final accounts on the record before her.
[4] We are not persuaded that the motion judge erred in law in her analysis of whether the accounts were final or interim. We find no legal error in her summary of the legal principles to be applied in considering whether an account is final or interim. Although the language of “a continuum” is used in some of the cases to describe the relationship between multiple accounts that are found to be interim, it is not a distinct legal test.
[5] Nor are we persuaded that the motion judge committed a palpable and overriding error of fact. The case law is clear that the question of whether an account is final or interim is a question of fact: Fellowes, McNeil v. Kansa Canadian Management Services Inc. (1997), 1997 CanLII 733 (ON CA), 34 O.R. (3d) 301 (C.A.), at p. 303; Shapiro, Cohen, Andrews, Finlayson v. Enterprise Rent-a-Car Company. (1998), 1998 CanLII 1043 (ON CA), 38 O.R. (3d) 257 (C.A.), at pp. 261-62. The finding of the trial judge that all of the accounts were final was open to her on the record and is owed deference.
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