RZCD Law Firm LLP v. Williams, (2016) 348 O.A.C. 89 (DC)

• Judge: J. Wilson, Horkins and Perell, JJ.
• Court: Superior Court of Justice of Ontario (Canada)
• Case Date: March 15, 2016
• Jurisdiction: Ontario
• Citations: (2016), 348 O.A.C. 89 (DC);2016 ONSC 2122

RZCD Law Firm v. Williams (2016), 348 O.A.C. 89 (DC)

MLB headnote and full text

Temp. Cite: [2016] O.A.C. TBEd. AP.004

In The Matter Of the Solicitors Act

And In The Matter Of RZCD Law Firm LLP (solicitors/respondents) v. James Williams (client/appellant)

(DC-15-0045-00; 2016 ONSC 2122)

Indexed As: RZCD Law Firm LLP v. Williams

Court of Ontario

Superior Court of Justice

Divisional Court

J. Wilson, Horkins and Perell, JJ.

April 1, 2016.

Summary:

An assessment officer ordered a law firm to refund $24,000 of an $89,000 bill and to pay its former client $12,000 in costs. The law firm, without delivering a notice of objection to the assessment officer, moved under s. 6(9) of the Solicitors Act to oppose confirmation of the certificate of assessment and to have the certificate set aside. The law firm advanced two grounds of appeal: (1) the assessment officer exceeded his jurisdiction by deciding a dispute about the hourly rates, which was an issue to be determined by a judge; and (2) in his consideration of the results achieved, the assessment officer erred in principle in his consideration of the value of the solicitor's work by considering the results achieved after deducting the legal expense. The client cross-moved to dismiss the motion on the ground that it was out of time and because of failure to serve a copy of the transcript of the evidence at the assessment hearing.

The Ontario Superior Court set aside the certificate of assessment, assessed the law firm's fees at $70,000 plus taxes of $3,478.34 and disbursements. This resulted in the law firm having to refund $11,711.83 to the client with each party bearing their own costs of the assessment. The client appealed on the following grounds: (1) the motion judge should not have heard the appeal because the law firm had not delivered objections, which was a prerequisite to the appellate court having jurisdiction pursuant to s. 17(b) of the Courts of Justice Act, and the Rules of Civil Procedure; (2) the judge erred by accepting new evidence on the appeal; and (3) the judge erred in setting aside the certificate and substituting his own assessment for the assessment officer's decision because there were no grounds to do so and deference was owed to the assessment officer.

The Ontario Divisional Court allowed the appeal on all three grounds, set aside the motion judge's decision and confirmed the assessment certificate. The court ordered the law firm to refund $24,000 and to pay the client costs of $12,000 for the assessment hearing, $10,000 for the motion, and $7,500 for the appeal.

Barristers and Solicitors - Topic 3257

Compensation - Taxation or assessment of accounts - Appeals - An assessment officer ordered a law firm to refund $24,000 of an $89,000 bill and to pay its former client $12,000 in costs - The law firm, without delivering a notice of objection to the assessment officer, moved under s. 6(9) of the Solicitors Act to oppose confirmation of the certificate of assessment and to have the certificate set aside - The motion judge set aside the certificate and reassessed the account - The client appealed, asserting that the judge should not have heard the appeal because the law firm had not delivered objections, which was a prerequisite to the appellate court having jurisdiction pursuant to s. 17(b) of the Courts of Justice Act, and the Rules of Civil Procedure - The Ontario Divisional Court stated that one ground of appeal before the motion judge related to the assessment officer's jurisdiction and did not require objections to have been served - The judge dismissed that ground and the issue was no longer before the court - The other ground of appeal was based on objections to the assessment officer's consideration of the lawyer's account and required objections to be filed - The motion judge erred by allowing the appeal to proceed without objections having been filed - See paragraphs 30 to 39.

Barristers and Solicitors - Topic 3257

Compensation - Taxation or assessment of accounts - Appeals - An assessment officer ordered a law firm to refund $24,000 of an $89,000 bill and to pay its former client $12,000 in costs - The law firm moved under s. 6(9) of the Solicitors Act to oppose confirmation of the certificate of assessment and to have the certificate set aside - The motion judge invited and, despite the client's objections, accepted fresh evidence on the hearing of the motion/appeal - The judge set aside the certificate of assessment and reassessed the account - The client appealed, asserting that the judge erred by accepting new evidence - The Ontario Divisional Court allowed the appeal - Jordan v. McKenzie (Ont. H.C.) held that a motion to oppose confirmation of a certificate of assessment, evidence could be put before the court if the issue on the motion was whether the assessment officer exceeded his or her jurisdiction - If the appeal did not concern the assessment officer's jurisdiction, the evidence was only admissible if it met the test for fresh evidence on an appeal - Here, the evidence delivered by the law firm in response to questions by the motion judge would not the satisfy the strict criteria for the admission of fresh evidence on appeal and the evidence should not have been invited or admitted - See paragraphs 40 to 44.

Barristers and Solicitors - Topic 3257

Compensation - Taxation or assessment of accounts - Appeals - An assessment officer ordered a law firm to refund $24,000 of an $89,000 bill and to pay its former client $12,000 in costs - The law firm moved under s. 6(9) of the Solicitors Act to oppose confirmation of the certificate of assessment and to have the certificate set aside - The motion judge set aside the certificate of assessment and reassessed the account - The Ontario Divisional Court allowed the client's appeal - The motion judge erred in substituting his own opinion for the assessment officer's opinion - The motion was in the nature of an appeal, and the court was concerned only with errors in principle and not mere questions of amount, unless the amounts were so inappropriate as to suggest an error in principle - The assessment officer's decision could be disturbed only if: (a) there was absence or excess of jurisdiction; (b) there has been some error in principle; or (c) there was a patent misapprehension of the evidence - The judge, on the basis of new evidence which ought not to have been admitted, retried the assessment, and thus erred in setting aside the certificate of the assessment - See paragraphs 45 to 49.

Practice - Topic 9031

Appeals - Evidence on appeal - Admission of "new evidence" or "fresh evidence" - [See second Barristers and Solicitors - Topic 3257 ].

Cases Noticed:

Price v. Sonsini (2002), 162 O.A.C. 85; 60 O.R.(3d) 257 (C.A.), refd to. [para. 23].

Baker Estate et al. v. Sony BMG Music (Canada) Inc. et al., [2011] O.T.C. Uned. 7105; 2011 ONSC 7105, refd to. [para. 27].

Borden & Elliot v. Deer Home Investments Ltd., [1992] O.J. No. 2152 (Gen. Div.), refd to. [para. 34].

Wilson v. Gunn & Associates (1999), 93 O.T.C. 125 (Gen. Div.), refd to. [para. 34].

Ramos v. Eastern Airlines Inc., [1994] O.J. No. 2033 (Gen. Div.), refd to. [para. 34].

Rowland v. Sackmar, [1960] O.W.N. 455, refd to. [para. 34].

Rowland v. Sackmar, [1960] O.W.N. 522 (C.A.), refd to. [para. 34].

Clark v. Virgo (1896), 17 P.R. 260, refd to. [para. 34].

Brooker v. 626381 Ontario Ltd., [2009] O.J. No. 138 (Sup. Ct.), refd to. [para. 35].

Avery, Re, [1952] O.J. No. 120 (H.C.), refd to. [para. 35].

Robinson v. England (1906), 11 O.L.R. 385 (Div. Ct.), affing. [1906] O.J. No. 344 (H.C.), refd to. [para. 35].

Campbell v. Baker (1905), 9 O.L.R. 291, refd to. [para. 35].

Snowden v. Huntington (1887), 12 P.R. 248, refd to. [para. 35].

Basman v. Beck, [1989] O.J. No. 274 (Surr. Ct.), refd to. [para. 36].

Jordan v. McKenzie, [1987] O.J. No. 1193 (H.C.), refd to. [para. 42].

Solmon Rothbart Goodman v. Davidovits, [1996] O.J. No. 5066 (Gen. Div.), refd to. [para. 42].

Eng. v. Ho et al., [2009] O.A.C. Uned. 664; 2009 ONCA 150, refd to. [para. 46].

Rabbani v. Niagara (Regional Municipality), [2012] O.A.C. Uned. 242; 2012 ONCA 280, refd to. [para. 46].

Dryden v. Oatley, Vigmond LLP, [2011] O.T.C. Uned. 7303; 2011 ONSC 7303, refd to. [para. 46].

Tibollo (Nicholas C.) Professional Corp. v. Wasserman Associates Inc. et al., [2011] O.T.C. Uned. 4742; 2011 ONSC 4742, affd. [2013] O.A.C. Uned. 370; 2013 ONSC 2685 (Div. Ct.), refd to. [para. 46].

Labelle v. Howe, [1996] O.J. No. 759 (Div. Ct.), refd to. [para. 46].

Eastwalsh Homes Ltd. v. Anatal Development Corp. (1995), 80 O.A.C. 141 (C.A.), refd to. [para. 46].

Foster v. Kempster, [2000] O.T.C. Uned. E53 (Sup. Ct.), refd to. [para. 46].

Schwisberg v. Kennedy et al., [2004] O.T.C. 755 (Sup. Ct.), refd to. [para. 47].

Kelleher, Hoskinson v. Knipfel Estate, [1982] O.J. No. 3283 (C.A.), refd to. [para. 47].

Solicitor, Re, [1908] O.J. No. 454 (H.C.), refd to. [para. 47].

Ledroit v. Rooplall, [2011] O.T.C. Uned. 2751; 2011 ONSC 2751, refd to. [para. 48].

Solicitor, Re (1976), 3 C.P.C. 148 (Ont. C.A.), refd to. [para. 48].

Borden & Elliot v. Deer Home Investments Ltd., [1992] O.J. No. 2152 (Gen. Div.), refd to. [para. 48].

Counsel:

Craig Lewis, for the solicitors/respondents;

Hassan Fancy, for the client/appellant.

This appeal was heard at Brampton, Ontario, on March 15, 2016, by J. Wilson, Horkins, and Perell, JJ., of the Ontario Divisional Court. Perell, J., released the following judgment for the court on April 1, 2016.