Vo v. Phillips Legal Professional Corp., 2015 SKQB 248

• Judge: Ball, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: August 18, 2015
• Jurisdiction: Saskatchewan
• Citations: 2015 SKQB 248;(2015), 473 Sask.R. 48 (QB)

Vo v. Phillips Legal Prof. Corp. (2015), 473 Sask.R. 48 (QB)

MLB headnote and full text

Temp. Cite: [2015] Sask.R. TBEd. SE.006

Phillips Legal Professional Corporation (appellant/respondent) v. Thao Thi Thu Vo (respondent/applicant)

(2013 Q.B.G. No. 2356; 2015 SKQB 248)

Indexed As: Vo v. Phillips Legal Professional Corp.

Saskatchewan Court of Queen's Bench

Judicial Centre of Regina

Ball, J.

August 18, 2015.

Summary:

Phillips appealed a certificate of assessment directing him to refund $23,501.66 in legal fees paid to him by his former client, Vo, relating to family law matters. His primary argument was that he was denied a fair hearing by the assessment officer. Vo asked for an award of solicitor-client costs with respect to both the application for an assessment and the appeal.

The Saskatchewan Court of Queen's Bench dismissed the appeal, with solicitor-client costs payable by Phillips fixed at $15,000. In the result, Phillips was ordered to refund the sum of $38,501.66, payable forthwith.

Barristers and Solicitors - Topic 801

Duty to court - Counsel as a witness - General - [See first Barristers and Solicitors - Topic 3258 ].

Barristers and Solicitors - Topic 849

Duty to court - Liability for costs - For conduct of proceedings - [See Barristers and Solicitors - Topic 3259 ].

Barristers and Solicitors - Topic 892

Duty to court - Presentation of evidence - Duty respecting affidavit evidence of counsel - [See first Barristers and Solicitors - Topic 3258 ].

Barristers and Solicitors - Topic 1571

Relationship with client - Liability for costs - General - [See Barristers and Solicitors - Topic 3259 ].

Barristers and Solicitors - Topic 3001.1

Compensation - General - Certificate of fees (incl. setting aside) - [See Barristers and Solicitors - Topic 3257 ].

Barristers and Solicitors - Topic 3257

Compensation - Taxation or assessment of accounts - Appeals - An assessment officer directed Phillips to refund $23,501.66 in legal fees paid by his former client in family law matters - Phillips appealed the assessment certificate - His primary argument was that he was denied a fair hearing, on the grounds that the assessment officer failed (1) to devote enough time on the assessment; (2) to perform a document-by-document review of the solicitor and court files; (3) to adjourn the hearing so he could call viva voce evidence; and (5) to give him post-hearing access to his own file material - The Saskatchewan Court of Queen's Bench rejected the grounds of appeal and, taking a broader view, concluded that Phillips "is operating under the misguided belief that he, and he alone, ought to be permitted to decide when the assessment hearing would proceed, how it would be conducted, what the relevant issues would be, and who would speak to them. In pursuing those beliefs, he was oblivious to the waste of time and money being visited on his former client, her present counsel and those in the judicial system who have been called upon to address his complaints." - See paragraphs 43 to 59.

Barristers and Solicitors - Topic 3258

Compensation - Taxation or assessment of accounts - Evidence - In an appeal from an assessment certificate, opposing counsel gave disparate versions of what had transpired at the assessment hearing - The Saskatchewan Court of Queen's Bench stated that "[i]t is unusual when opposing lawyers give the court such fundamentally different descriptions of what has been said and done during a hearing at which they were both present. In this case, the differences involved facts relevant to both the outcome of this appeal and an appropriate award of costs. In my view, only one could reasonably be true. Lawyers who act as counsel in a proceeding must not put their own credibility in issue by asserting as fact anything that is properly subject to challenge. This prohibition extends to testifying before a tribunal, giving evidence in the form of an affidavit, or effectively becoming an unsworn witness by making submissions about factual matters that should properly be proven by evidence. As well, a lawyer may not do indirectly what cannot be done directly by adducing controverted evidence from members of his own law firm. ... Credibility concerns are compounded when a lawyer represents himself as a party to the proceeding, as [the appellant] has done in this dispute." - See paragraphs 27 and 28.

Barristers and Solicitors - Topic 3258

Compensation - Taxation or assessment of accounts - Evidence - In an appeal from an assessment certificate, opposing counsel gave disparate versions of what had transpired at the assessment hearing - The Saskatchewan Court of Queen's Bench stated that "one way to determine what had actually occurred was to ask the assessment officer herself", and reviewed the judicial authorities on the question - "As a general rule, an assessment officer does not have an active role in an appeal from his or her assessment certificate. Rather, the assessment certificate speaks for itself. ... The court refers to the assessment certificate to determine whether the assessment officer exercised his or her discretion appropriately. Similarly, new evidence is not ordinarily received on an appeal from an assessment. The appeal is limited to the records that were before the assessment officer. This accords with Rule 11-22 (6)(b) of the Queen's Bench Rules ... .[However] [t]here is precedent for obtaining further input from the assessment officer on appeal." - In the result, the Court issued an interim order directing the assessment officer to provide the Court with a supplementary Certificate of Assessment answering specific questions - See paragraphs 29 to 34.

Barristers and Solicitors - Topic 3259

Compensation - Taxation or assessment of accounts - Costs (incl. security for costs) - An assessment officer directed Phillips to refund $23,501.66 in legal fees paid by his former client - Phillips' appeal of the assessment certificate was dismissed - The client asked for an award of solicitor-client costs with respect to both the application for an assessment and the appeal - The Saskatchewan Court of Queen's Bench ordered that Phillips pay solicitor and client costs of the application for an assessment and of the assessment appeal, for a total of $15,000 - "The power to order costs as between solicitor and client against a lawyer personally should be exercised with great restraint. That said, in pursuing this appeal, Phillips was not acting as a lawyer representing the interests of a client, but as an individual pursuing his own financial interests." - The assessment officer found that Phillips had attempted to introduce complexity into what ought to have been relatively straight-forward family law issues, causing unnecessary expense to his client - The same could be said for Phillips' approach to the assessment process - See paragraphs 60 to 65.

Barristers and Solicitors - Topic 3405

Compensation - Particular matters - Family matters - [See Barristers and Solicitors - Topic 3257 ].

Practice - Topic 7102

Costs - Party and party costs - Special orders - Costs payable on a solicitor and client basis - [See Barristers and Solicitors - Topic 3259 ].

Practice - Topic 8366

Costs - Appeals - Appeals from taxation - Review of discretion of taxing officer - [See Barristers and Solicitors - Topic 3259 ].

Cases Noticed:

Adams v. Canadian Tobacco Manufacturers' Council et al. (2010), 360 Sask.R. 236; 2010 SKQB 308, refd to. [para. 28].

Williams et al. v. Saskatchewan (Minister of Justice) (2002), 221 Sask.R. 269; 2002 SKQB 295, refd to. [para. 30].

Merchant Law Group LLP et al. v. He (2013), 428 Sask.R. 92; 2013 SKQB 299 (Fam. Div.), refd to. [para. 32].

Turple v. Chauvet et al. (2001), 204 Sask.R. 228; 2001 SKQB 43, folld. [para. 33].

Kapoor v. Mulholland (1996), 148 Sask.R. 151; 134 W.A.C. 151 (C.A.), refd to. [para. 42].

Statutes Noticed:

Legal Profession Act, S.S. 1990-91, c. L-10.1, sect. 67(4) [para. 38]; sect. 72 [para. 40].

Queen's Bench Rules (Sask.) - see Rules of Court (Sask.), Queen's Bench Rules.

Rules of Court (Sask.), Queen's Bench Rules, rule 11-22 [para. 40]; rule 11-23 [para. 39]; rule 11-24 [para. 60].

Counsel:

Mervin C. Phillips, appellant, on his own behalf;

James J. Vogel, for the respondent.

This appeal was heard before Ball, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Regina, who delivered the following judgment, dated August 18, 2015.