[2] The clients retained Michael J. Henry and Howie, Sacks and Henry LLP on or about April 23, 2012 through March 5, 2013 with respect to five tort and an accident benefits files for the clients, a tort and accident benefits file for each of Sophie and Mary and accident benefits file for Harriet. Following this retainer, the lawyers rendered an account in the total amount of $74,069.86 for the five files. An assessment of these amounts was scheduled and, after five appointments and adjournments by the clients over a period of five years, the assessment officer ordered that there would be no further adjournments and that the assessment would be heard December 4-6, 2017. Following the three-day hearing, in which Sophie appeared, by agreement, on behalf of all three clients and cross-examined the witnesses, Madam Assessment Officer Chiba, in considered reasons, awarded the solicitors $17,500 plus costs of $5,085, inclusive of HST for a total of $22,585 on December 6, 2017.
[3] The clients oppose confirmation of the amended Report and Certificate of Assessment on the grounds and that the assessment officer made numerous errors, including procedural errors, unfairness, breach of natural justice, misapprehension of material facts and palpable and/or overriding errors on factual matters, the application of wrong legal principles, an assessment amount which is so unreasonable as to constitute an error in principle, and costs. It is the position of the clients that no amounts should be awarded for the five solicitors’ accounts or costs. It is the position of the clients that their counsel rendered no valuable service whatsoever to them, lied to them about the status of their accounts, and failed to advise them of examinations for discovery. As regards the assessment, it is the position of the clients that the assessment officer did not allow Sophie to speak, laughed at her, that her human rights were breached due to mobility issues, that there was no breakdown of the assessment amount by person and file and there were no transcripts available and no recordings taken of the proceedings. The clients seek a new assessment hearing where they can get transcripts and where the amounts awarded to the solicitors will be broken down by file. However, the clients’ primary position is that no amounts should be awarded as they maintain that the lawyers did no work of any value.
[4] The position of the solicitors is that there was no misapprehension of evidence, no palpable or overriding error on factual matters and that deference should be accorded the assessment officer. It is the position of the solicitors that the allegations of the clients are not based in or supported by any documentary evidence, but were, at the hearing, all oral evidence. It is the position of the solicitors that little would be gained from ordering a new assessment hearing, that in according deference to the assessment officer, it should be noted that the assessment officer made findings of credibility, stating in her reasons that she preferred the evidence of the solicitors to that of the clients.
The Law
[5] A motion to oppose confirmation of an assessment officer’s certificate is made to the Ontario Superior Court of Justice pursuant to the Solicitors Act, sections 6(9). Where objections were not made at the hearing, as in this case, and a motion is brought to oppose confirmation, the motion is in the nature of an appeal and is limited to errors relating to jurisdiction, procedural fairness and/or patent misrepresentation of evidence: Starkman Barristers v Cardillo, 2017 ONSC 5530 (CanLII) at para 25 citing RZCD Law Firm LLP v Williams, 2016 ONSC 2122 (CanLII) (Ont. Div. Ct.).
[6] The applicable standard of law on an appeal from an assessment officer’s decision is as follows:
The standard of review on an appeal from an assessment officer’s decision is well established. The order below is discretionary. The hearing is an appeal, 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.
Starkman Barristers v Cardillo, supra at para 26 citing Rabbani v Niagara (Regional Municipality), 2012 ONCA 280 (CanLII)
[7] An assessment officer’s ruling is “entitled to considerable deference”. The court hearing the motion opposing confirmation “should not retry the matter or interfere with the result, unless the reasons demonstrate some error in principle or unless there has been some absence or excess of jurisdiction or some patent misapprehension of the evidence”: RZCD Law Firm LLP v Williams, 2016 ONSC 2122 (CanLII) (Ont. Div Ct.)
[21] I note from the evidence that over five years, the clients had paid nothing toward their accounts. They maintained throughout that the fee should be $0. Assessment Officer Chiba fairly and reasonably exercised her discretion in making her determination as regards fees. I find there to be no justification for this appellate court to interfere with Assessment Officer Chiba’s determination.
[22] Based on all of the foregoing, I confirm the decision of the assessment officer and the Amended Report and Certificate as issued.
