Cookish v. Lee (Paul) Associates Professional Corp., (2013) 305 O.A.C. 359 (CA)

• Judge: Doherty, Laskin and Blair, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: January 14, 2013
• Jurisdiction: Ontario
• Citations: (2013), 305 O.A.C. 359 (CA);2013 ONCA 278

Cookish v. Lee Assoc. Prof. Corp. (2013), 305 O.A.C. 359 (CA)

MLB headnote and full text

Temp. Cite: [2013] O.A.C. TBEd. MY.005

Kathleen Cookish (applicant/respondent) v. Paul Lee Associates Professional Corporation (respondent/appellant)

(C55638; 2013 ONCA 278)

Indexed As: Cookish v. Lee (Paul) Associates Professional Corp.

Ontario Court of Appeal

Doherty, Laskin and Blair, JJ.A.

April 30, 2013.

Summary:

Paul Lee Associates Professional Corp. (the law firm) delivered an account to Cookish for services rendered under what it said was a contingency fee agreement. Cookish contested the account and obtained an order, on consent, referring the matter to an assessment officer. The order was consented to on the premise that only the quantum of the bill was in dispute. As it turned out, however, there was a dispute about the nature of the retainer agreement, namely, whether it was a valid contingency fee agreement. The law firm applied to set aside the order, taking the position that the assessment officer lacked jurisdiction to deal with the dispute.

The Ontario Superior Court, in a decision reported at [2012] O.T.C. Uned. 3084, dismissed the application. The law firm appealed.

The Ontario Court of Appeal allowed the appeal and remitted the matter to a judge of the Superior Court to hear the application for an assessment.

Barristers and Solicitors - Topic 3126

Compensation - Agreements - Contingent fees - General - The Ontario Court of Appeal considered the evolution of the acceptance of contingency fee agreements as a legitimate way for lawyers and their clients to structure lawyers' remuneration - The court stated that s. 28.1 of the Solicitors Act and its related amendments "are the progeny of that evolution." - See paragraphs 40 and 41.

Barristers and Solicitors - Topic 3130

Compensation - Agreements - Contingent fees - Review and approval - [See all Barristers and Solicitors - Topic 3243 ].

Barristers and Solicitors - Topic 3243

Compensation - Taxation or assessment of accounts - Jurisdiction - The position of "assessment officer" was created by s. 90 of the Courts of Justice Act (Ont.) - On this appeal, the issue was whether an assessment officer had the jurisdiction to assess the solicitor's account where there was an underlying dispute between the solicitor and the client about the nature and validity of the retainer agreement - The Ontario Court of Appeal stated that "[a]n assessment officer has no inherent jurisdiction. ... I conclude that, while there may be circumstances in which it is appropriate for a judge, when referring a solicitor's bill for assessment, to delegate such decisions to an assessment officer pursuant to the reference powers under Rule 54 of the Rules of Civil Procedure, ... the preferable procedure is for a judge to make those determinations." - The court did not think the fact that the agreement in question might be a contingency fee agreement altered its analysis in any material way - See paragraphs 4 and 35.

Barristers and Solicitors - Topic 3243

Compensation - Taxation or assessment of accounts - Jurisdiction - On this appeal, the issue was whether an assessment officer had the jurisdiction to assess a solicitor's account - There was an underlying dispute between the solicitor and the client about the nature and validity of the retainer agreement, namely, whether or not it was a valid contingency fee agreement - Section 23 of the Solicitors Act addressed the determination of disputes under a retainer agreement (including a contingency fee agreement) in general - The Ontario Court of Appeal stated that "when the legislature says in s. 23 of the Act that 'every question respecting the validity or effect' of a retainer agreement may be 'examined and determined' by the court or a judge thereof, the legislature intended that as a general rule, (notwithstanding the reference power) a judge or other member of the court will perform that function - not an assessment officer." - See paragraph 29.

Barristers and Solicitors - Topic 3243

Compensation - Taxation or assessment of accounts - Jurisdiction - The Ontario Court of Appeal stated that "contingency fee agreements remain the subject of careful scrutiny by the court. That scrutiny is provided by judges (or masters). Only the court is entitled to determine whether such an agreement is 'in all respects fair and reasonable between the parties' (s. 24). While s. 18 grants an assessment officer that power in relation to retainer agreements in general - subject to the discretionary ability to refer the issue to the court, if it is in doubt - s. 28.1(10) stipulates that ss. 17-19 do not apply to contingency fee agreements. The authority to determine whether an agreement is fair and reasonable is therefore expressly stripped from the assessment officer when it comes to contingency fee agreements." - See paragraph 42.

Cases Noticed:

Kansa Canadian Management Services Inc. et al. v. Fellowes, McNeil (1997), 101 O.A.C. 238; 34 O.R.(3d) 301 (C.A.) [para. 14, footnote 2].

Echo Energy Canada Inc. v. Lenczner Slaght Royce Smith Griffin LLP et al. (2010), 269 O.A.C. 382; 325 D.L.R.(4th) 518; 2010 ONCA 709, refd to. [para. 14, footnote 3].

Guillemette v. Doucet (2007), 230 O.A.C. 202; 287 D.L.R.(4th) 522; 2007 ONCA 743, refd to. [para. 14, footnote 3].

Davies, Ward & Beck v. Union Industries Inc. (2000), 132 O.A.C. 147; 48 O.R.(3d) 794 (C.A.), refd to. [para. 18].

Crooks v. Clement (1997), 57 O.T.C. 233 (Gen. Div.), refd to. [para. 18].

Paoletti et al. v. Gibson et al. (2009), 248 O.A.C. 287; 308 D.L.R.(4th) 179; 2009 ONCA 71, refd to. [para. 20].

Park v. Perrier et al. (2005), 200 O.A.C. 377 (Div. Ct.), refd to. [para. 20].

Solicitor, Re (1907), 14 O.L.R. 464 (H.C.), refd to. [para. 40].

Robinson v. Cooney, [1999] O.J. No. 1341 (Sup. Ct.), refd to. [para. 40].

Bergel & Edson v. Wolf, [2001] O.T.C. 26; 50 O.R.(3d) 777 (Sup. Ct.), refd to. [para. 40].

McIntyre Estate v. Ontario (Attorney General) (2002), 164 O.A.C. 37; 61 O.R.(3d) 257 (C.A.), refd to. [para. 40].

Henricks-Hunter et al. v. 814888 Ontario Inc. et al. (2012), 294 O.A.C. 333; 2012 ONCA 496, refd to. [para. 43].

Solicitor, Re (1964), 49 D.L.R.(2d) 505 (Ont. H.C.), refd to. [para. 52].

Roach, Schwartz & Associates v. Pinnock, [2004] O.T.C. 274; 2004 CanLII 18719 (Sup. Ct.), refd to. [para. 52].

Penonzek v. Cerra (2001), 287 A.R. 57; 2001 ABQB 272, refd to. [para. 52].

Solicitor, Re, [1940] 4 D.L.R. 712 (Ont. H.C.), affd. [1940] 4 D.L.R. 821 (Ont. C.A.), refd to. [para. 52].

Stoughton Trailers Canada Corp. v. James Expedite Transport Inc. et al., [2008] O.A.C. Uned. 568; 2008 ONCA 817, refd to. [para. 56].

Beetown Honey Products Inc. (Bankrupt), Re, [2003] O.T.C. 866; 67 O.R.(3d) 511, affd. (2004), 3 C.B.R.(5th) 204 (Ont. C.A.), refd to. [para. 56].

Statutes Noticed:

Solicitors Act, R.S.O. 1990, c. S-15, sect. 3(1) [para. 20]; sect. 23 [para. 25]; sect. 28.1(11) [para. 37].

Rules of Court (Ont.), rule 54.02 [para. 31].

Rules of Civil Procedure (Ont.) - see Rules of Court (Ont.).

Authors and Works Noticed:

Orkin, Mark M., The Law of Costs, (2nd Ed. 1987) (Looseleaf), c. 3 [para. 14].

Counsel:

Tanya A. Pagliaroli, for the appellant;

David S. Wilson, for the respondent.

This appeal was heard on January 14, 2013, before Doherty, Laskin and Blair, JJ.A., of the Ontario Court of Appeal. In reasons written by Blair, J.A., the Court delivered the following judgment, released on April 30, 2013.