{"id":761,"date":"2018-06-04T17:36:38","date_gmt":"2018-06-04T21:36:38","guid":{"rendered":"http:\/\/limitations.ca\/?p=761"},"modified":"2018-06-04T17:36:38","modified_gmt":"2018-06-04T21:36:38","slug":"ontario-the-limitation-of-assessing-solicitor-bills","status":"publish","type":"post","link":"http:\/\/limitations.ca\/?p=761","title":{"rendered":"Ontario: the limitation of assessing solicitor bills"},"content":{"rendered":"

Gardiner Roberts v. Canada International Distributing Inc. <\/em><\/a>provides a useful overview of the operation of the time limit (which is not strictly a limitation period) in s. 3 of the Solicitors Act<\/em><\/a>. In particular, it underscores the importance that an account be final in order to trigger the running of time:<\/p>\n

\n

[<\/a>28]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0Section 3<\/a>\u00a0of the\u00a0Solicitors Act<\/a><\/i>\u00a0provides that where the retainer is not disputed and there are no special circumstances, a client may obtain an order for:\u00a0 a) the delivery and assessment of the solicitor\u2019s bill; or b) for the assessment of a bill already delivered, within one month from its delivery.<\/p>\n

[<\/a>29]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0Gardiner Roberts argues that it provided its \u201c\u2018final\u2019 account, i.e. the last account\u201d on November 30, 2016.\u00a0 This, it is argued, is more than one month before Cana sought an assessment.\u00a0 Thus, Cana is not able to obtain an assessment under\u00a0s. 3<\/a>.<\/p>\n

[<\/a>30]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0Cana counters that the \u201clast\u201d account is not a \u201cfinal\u201d account; Gardiner Roberts has refused to render a final account in order to deprive Cana of its ability to assess the accounts. \u00a0Cana is entitled to have a final bill delivered and an assessment of the bill, which would include all interim accounts rendered.<\/p>\n

[<\/a>31]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0When assessing the submissions of counsel, I keep in mind that the purpose of the\u00a0Solicitors Act<\/a><\/i>\u00a0and the assessment process is \u201cto regulate the legal profession and protect the public in their dealings with solicitors\u201d:\u00a0Laushway Law Office<\/i>\u00a0v.\u00a0Simpson<\/i>,\u00a02011 ONSC 4155<\/span>\u00a0(CanLII)<\/a>, at para. 143<\/span>.<\/p>\n

[<\/a>32]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0As explained by Sharpe J.A. in\u00a0Price<\/i>\u00a0v.\u00a0Sonsini<\/i>,\u00a02002 CanLII 41996 (ON CA)<\/a>,\u00a0[2002] O.J. No. 2607 (C.A.)<\/span>, at para. 19<\/span>:<\/p>\n

Public confidence in the administration of justice requires the court to intervene where necessary to protect the client\u2019s right to a fair procedure for the assessment of a solicitor\u2019s bill.\u00a0 As a general matter, if a client objects to a solicitor\u2019s account, the solicitor should facilitate the assessment process, rather than frustrating the process.<\/p>\n

[<\/a>33]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0With this legal framework in mind, I have concluded that Cana is entitled to an assessment. Gardiner Roberts has failed to render a final bill: the November 30 account sent by Gardiner Roberts is an interim account, as were all previous accounts rendered by the law firm. \u00a0Given Gardiner Roberts\u2019 failure to render a final account, it was open to Cana to obtain an order pursuant to\u00a0s. 3<\/a>(a) for the delivery of a final bill and an assessment.\u00a0\u00a0 All of the interim accounts were related to the same matter, and therefore the limitation period flows from the date of delivery of the final account.\u00a0 Thus, Cana is entitled to an assessment of all of the accounts, even though many of them were paid.<\/p>\n

Gardiner Roberts has Failed to Render a Final Bill<\/i><\/p>\n

[<\/a>34]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0Following the November 30 account, Gardiner Roberts prepared written submission on costs.\u00a0 Gardiner Roberts seemed (at least initially) to view the costs submissions as simply a continuation of the ongoing work being done on the Standard Innovation matter.\u00a0 This seems clear from the email of Mr. Wolch on November 21, where he said \u201c… I must also prepare submissions with respect to costs\u2026\u201d\u00a0 Indeed, it is difficult to see the costs submissions following a lengthy trial as being anything other than part and parcel of the same matter.<\/p>\n

[<\/a>35]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0Despite repeated requests by Cana, Gardiner Roberts has refused to provide a bill for the work done on the costs submissions.\u00a0 Cana argues that Gardiner Roberts cannot simply refuse to render a bill for this final work done, in order to circumvent Cana\u2019s right to an assessment under\u00a0s.3<\/a>\u00a0of the\u00a0Solicitors Act<\/a><\/i>.\u00a0 I agree.\u00a0 Cana properly moved pursuant to\u00a0s. 3<\/a>(a) of the\u00a0Solicitors Act<\/a><\/i>\u00a0for the delivery of the final account.<\/p>\n

\n

\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0\u00a0The Limitation Period Flows From the Final Account<\/i><\/p>\n

[<\/a>36]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0Upon delivery of such final account, Cana is entitled to an assessment of all previous interim accounts.\u00a0 As noted in\u00a0Price<\/i>\u00a0v.\u00a0Sonsini<\/i>, at para. 15, where interim accounts are rendered in connection with the same matter, the limitation period for assessment under the\u00a0Solicitors Act<\/a><\/i>\u00a0begins to run from the date of the final account, even if some of the interim accounts have been paid.<\/p>\n

The Accounts Rendered Thus Far Have Been Interim Accounts<\/i><\/p>\n

[<\/a>37]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0In\u00a0Shapiro, Cohen, Andrews, Finlayson\u00a0<\/i>v.\u00a0Enterprise Rent-a-Car Co.<\/i>,\u00a01998 CanLII 1043 (ON CA)<\/a>,\u00a0[1998] O.J. No. 727 (C.A.)<\/span>, at para. 14<\/span>, the Court of Appeal referred to a number of factors that supported the motions judge\u2019s conclusion in that case that all accounts rendered prior to the final account were interim accounts.\u00a0 Most of those factors apply to the present case.\u00a0 For example:<\/p>\n

\u2022\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0All accounts relate to once piece of litigation.\u00a0 The accounts all involve the action against Standard Innovation.\u00a0 It was the same matter; they are part of a continuum.\u00a0 This is illustrated by the fact that all accounts said \u201cRe: Standard Innovation\u201d and had the same file number.<\/p>\n

\u2022\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0None of the account were marked as final accounts.\u00a0 Moreover, the retainer agreement specifically said that the firm would render interim accounts and reserved the right to take into account the result achieved in the final account.<\/p>\n

\u2022\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0Considerable adjustments were at times made to the accounts.\u00a0 According to Gardiner Roberts, it wrote off more than $70,000 because of request for discounts by Cana.\u00a0 An example of such a discount occurred on December 9, 2011.\u00a0 On that date, Mr. Wolch agreed to reduce the amount owed by Cana by $20,000.\u00a0 But in reducing the account, Mr. Wolch noted that if the firm was successful in the matter, and recovered a reasonable amount, that this money would be repaid.\u00a0 This supports that the accounts were interim, not final.<\/p>\n

\u2022\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0Cana was led to believe that the work on the interlocutory injunctions would not be lost.<\/p>\n

\u2022\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0Given the nature of the services, Cana could only appreciate the services performed at the end of the retainer.\u00a0 This is highlighted in the retainer agreement, where Gardiner Roberts reserved the right to take into account the results obtained in determining its final account.<\/p>\n

[<\/a>38]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0Looking at these factors, I find that the accounts rendered thus far have been interim. No final bill has been delivered.\u00a0 Gardiner Roberts cannot avoid\u00a0s. 3<\/a>\u00a0of the\u00a0Solicitors Act<\/a><\/i>\u00a0by refusing to render a final account.\u00a0 I find that pursuant to\u00a0s. 3<\/a>(a) Gardiner Roberts is required to deliver a bill.\u00a0 The limitation period for the interim accounts rendered flows from the final bill.\u00a0 Thus, Cana is not time barred from an assessment of the interim accounts in this matter, even where those accounts have been paid.<\/p>\n

[<\/a>39]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0I turn now to the alternative submission raised, which is that there are special circumstances which justify an assessment of the accounts.<\/p>\n<\/blockquote>\n

The decision also describes the test for special circumstances:<\/p>\n

\n

[<\/a>40]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0Where there are special circumstances, pursuant to\u00a0s. 4(1)<\/a>\u00a0of the\u00a0Solicitors Act<\/a><\/i>\u00a0a client may obtain an assessment of an account more than 12 months after it was delivered.\u00a0 This applies whether the bills are paid or unpaid.\u00a0 Further, pursuant to\u00a0s. 11<\/a>\u00a0of the\u00a0Solicitors Act<\/a><\/i>, a client may obtain an assessment of bills already paid within 12 months of delivery of an account, if the special circumstances of the case appear to require the assessment.\u00a0 For bills rendered within 12 months, but that remain unpaid, the court has inherent jurisdiction to order an assessment:\u00a0Enterprise Rent-a-Car<\/i>, at para. 8.<\/p>\n

[<\/a>41]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0There is a presumption that payment of a bill constitutes implied acceptance of its reasonableness.\u00a0 This presumption, however, is rebuttable.\u00a0 As noted in\u00a0Enterprise Rent-a-Car<\/i>, at para. 19, the presumption is refuted to some extent by the fact that clients cannot be expected to bring an assessment while the lawyer is representing them, as they would not wish to alienate the lawyer.<\/p>\n

[<\/a>42]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0In\u00a0Enterprise Rent-a-Car<\/i>, at para. 21, \u00a0the Court outlined a number of factors showing that the special circumstances test had been met in that case.\u00a0 Similar factors can be found in the present case, including the following:<\/p>\n

\u2022\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0Cana was not familiar with commercial litigation nor with injunctions;<\/p>\n

\u2022\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0Cana understood that if the interlocutory injunction were granted, it would effectively resolve the dispute and end the litigation, and the work done would contribute significantly to trial preparation;<\/p>\n

\u2022\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0Cana did not give instructions to proceed at all costs; to the contrary, Cana communicated to Gardiner Roberts that it expected that the firm would keep legal costs within reason;<\/p>\n

\u2022\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0It is unrealistic to expect that Cana should have sought to have the bill assessed during the course of an ongoing matter such as this case;<\/p>\n

\u2022\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0Cana could only have appreciated the nature of the services at the conclusion of the retainer.\u00a0\u00a0 This is supported by the retainer agreement, which specified that Gardiner Roberts may take into account the result obtained in the final bill;<\/p>\n

\u2022\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0Cana was not aware that it could seek to have its accounts reviewed until it retained new lawyers.\u00a0 As noted in\u00a0Enterprise Rent-a-Car<\/i>, at para 20, lawyers \u201cshould take the opportunity to inform their clients of their right to an assessment at appropriate times during the solicitor-client relationship.\u201d\u00a0 Gardiner Roberts, however, failed to advise Cana of its right to have its accounts assessed, even when Cana had raised objection to certain accounts;<\/p>\n

\u2022\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0Gardiner Roberts billed Cana more than $1 million, without achieving any success.<\/p>\n

[<\/a>43]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0In light of the above factors, I find that the test for special circumstances has been met.\u00a0\u00a0 Cana is entitled to an assessment of the accounts rendered by Gardiner Roberts pursuant to\u00a0ss. 4(1)<\/a>\u00a0and\u00a011<\/a>\u00a0of the\u00a0Solicitors Act<\/a><\/i>.<\/p>\n<\/blockquote>\n

 <\/p>\n

 <\/p>\n","protected":false},"excerpt":{"rendered":"

Gardiner Roberts v. Canada International Distributing Inc. provides a useful overview of the operation of the time limit (which is not strictly a limitation period) in s. 3 of the Solicitors Act. In particular, it underscores the importance that an account be final in order to trigger the running of time: [28]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0Section … Continue reading Ontario: the limitation of assessing solicitor bills<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[4],"tags":[461,462,459,460],"class_list":["post-761","post","type-post","status-publish","format-standard","hentry","category-ontario","tag-assessing-bills","tag-do-lawyers-ever-over-charge","tag-ontario-solicitors-act","tag-ontario-solicitors-act-s-3"],"_links":{"self":[{"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/761","targetHints":{"allow":["GET"]}}],"collection":[{"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"http:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=761"}],"version-history":[{"count":1,"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/761\/revisions"}],"predecessor-version":[{"id":762,"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/761\/revisions\/762"}],"wp:attachment":[{"href":"http:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=761"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=761"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=761"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}