Versailles Convention Centre Inc. et al. v. Gilmour, (2013) 312 O.A.C. 394 (CA)

• Judge: Weiler, Gillese and Lauwers, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: October 18, 2013
• Jurisdiction: Ontario
• Citations: (2013), 312 O.A.C. 394 (CA);2013 ONCA 674

Versailles Convention Centre v. Gilmour (2013), 312 O.A.C. 394 (CA)

MLB headnote and full text

Temp. Cite: [2013] O.A.C. TBEd. NO.008

Versailles Convention Centre Inc. formerly 2074874 Ontario Inc. and 1579240 Ontario Inc. (applicants/appellants) v. William Ross Gilmour carrying on business as Gilmour Barristers (respondent/respondent in appeal)

(C56931; 2013 ONCA 674)

Indexed As: Versailles Convention Centre Inc. et al. v. Gilmour

Ontario Court of Appeal

Weiler, Gillese and Lauwers, JJ.A.

October 18, 2013.

Summary:

The appellants appealed the dismissal of their application for an assessment of the accounts of the respondent lawyer.

The Ontario Court of Appeal allowed the appeal. The order below was set aside and the appellants' request for the assessment of the respondent's accounts was granted.

Barristers and Solicitors - Topic 3241.1

Compensation - Taxation or assessment of accounts - When available - [See Barristers and Solicitors - Topic 3245 ].

Barristers and Solicitors - Topic 3245

Compensation - Taxation or assessment of accounts - Limitation period - Padda, a minority shareholder in Versailles Convention Centre Inc., brought an oppression action against Versailles and the two majority shareholders - A motions judge granted Padda an order appointing Paddon + Yorke Inc. (P&Y) as supervisor for Versailles - Pursuant to para. 43 of that order, the supervisor was authorized to pay the accounts for the services of Gilmour (a lawyer) in obtaining the order on behalf of Padda, to be paid from the funds and assets of Versailles - However, that was "without prejudice to any Party's right to claim adjustment in the within action" - The oppression action settled - The minutes of settlement provided that the defendants "shall be entitled to pursue any right they have to assess the accounts" that Gilmour provided to P&Y - Two and a half years after the costs were paid, but only two months after copies of the accounts were delivered to Versailles, Versailles sought an assessment of Gilmour's costs - The application was dismissed - The judge found that there were no special circumstances under s. 4 of the Solicitor's Act to warrant an exception to the general rule that no assessment would be ordered after 12 months from the delivery of the bill and there was no unfairness to create "special circumstances" under s. 11 of the Act - Versailles appealed - The Ontario Court of Appeal allowed the appeal and granted the request for the assessment of Gilmour's accounts - The application judge made findings of fact that were clearly wrong and not based on the evidence - The judge also failed to address certain factors, including the discrepancy between the costs outline Gilmour prepared for the motion and the total amount that was paid, which was almost double that amount - The cumulative effect of the motion judge's errors led to a clearly unreasonable result - There were special circumstances to warrant an exception to the general rule that no assessment would be ordered after 12 months from the delivery of the bill.

Cases Noticed:

Price v. Sonsini (2002), 162 O.A.C. 85 (C.A.), refd to. [para. 10].

Guillemette v. Doucet (2007), 230 O.A.C. 202; 88 O.R.(3d) 90; 2007 ONCA 743, refd to. [para. 11].

Statutes Noticed:

Solicitors Act, R.S.O. 1990, c. S-15, sect. 4(1) [para. 10]; sect. 11 [para. 14].

Counsel:

James S.G. Macdonald, for the appellant, Versailles Convention Center Inc.;

William Gilmour, in person.

This appeal was heard on October 18, 2013, before Weiler, Gillese and Lauwers, JJ.A., of the Ontario Court of Appeal. The Court of Appeal released the following endorsement orally on October 18, 2013, and in writing on November 5, 2013.