Ontario: the limitation of a solicitor-initiated assessment

The Superior Court decision in Fasken Martineau DuMoulin LLP v. Behdad Hosseini et al. sets out the principles of the limitation of a solicitor-initiated assessment under s. 3(c) of the Solicitors Act and concludes that the Limitation Act’s basic limitation period applies:


[83]           Both parties advised that they could not find any case law that has dealt with the issue of the applicable limitation period for solicitor-initiated assessments under s. 3(c) of the Solicitors Act, or the interplay between that section and either s. 4(1) of the Solicitors Act or s. 19 of the Limitations Act. Accordingly, this appears to be a case of first impression.

[84]           It is common ground that the requisition for the subject order for assessment was obtained under s. 3(c) of the Solicitors Act which provides:

Where the retainer of the solicitor is not disputed and there are no special circumstances, an order may be obtained on requisition from a local registrar of the Superior Court of Justice,

(b)   by the solicitor, for the assessment of a bill already delivered, at any time after the expiration of one month from its delivery, if no order for its assessment has been previously made. [Emphasis added.]

[85]           The Client’s argument is that as there is no fixed time imposed by s. 3(c) on a solicitor’s right to obtain a requisition, therefore the 12-month period reflected in s. 4(1) of the Solicitors Act must apply. The Client supports this position by noting the consumer protection nature of the Solicitors Act, and his bald assertion that it is “common knowledge” that the court “always” applies a 12-month limitation period in these types of solicitor-initiated assessments.

[86]           Section 4(1) of the Solicitors Act states:

No such reference shall be directed upon an application made by the party chargeable with such bill after a verdict or judgment has been obtained, or after twelve months from the time such bill was delivered, sent or left as aforesaid, except under special circumstances to be proved to the satisfaction of the court or judge to whom the application for the reference is made. [Emphasis added.]

[87]           The issue raises one of statutory interpretation. The essence of the Client’s position is that the 12-month time period, together with the “special circumstances” requirement for late filing, from s. 4(1) of the Solicitors Act should effectively be read into s. 3(c) of that Act in order to prevent the “absurd” result of there being no limitation period whatsoever imposed on solicitors seeking to have their accounts assessed.

[88]           The Solicitors Act was enacted in 1990 and is a consumer protection statute: Zeppieri &Associates v. Gupta2016 ONSC 6491. The Client urges that it would be inconsistent with the nature of consumer protection if solicitors were permitted an unlimited timeframe within which to request an assessment of accounts as against clients, whereas clients must commence their assessment proceedings within 12 months from the rendering of the final account, absent demonstrating special circumstances. The Client further submits that it is logical that the 12-month time period from s. 4(1) be read into s. 3(c) to fill this ostensible gap in the legislation. I disagree.

[89]           Section 3(c) explicitly states that a solicitor may bring a requisition to have its accounts assessed “at any time” after delivery of its account provided:

(a)   the retainer is not disputed,

(b)   there are no special circumstances,

(c)   the solicitor has waited one month after delivery of its account to file the requisition, and

(d)   no order for assessment of it has been previously made.

[90]           In this case, it is agreed by the parties that the retainer is not under dispute, no special circumstances have been advanced by either party, the requisition was filed more than a month after the subject accounts were delivered, and there was no prior order for an assessment made.

[91]           Second, s. 4(1) of the Solicitors Act explicitly refers to applications for a reference brought “by the party chargeable with such bill”. The party chargeable is the client, not the solicitor. Hence this provision has no application to the solicitor-initiated assessment under s. 3, again on a plain reading of this section.

[92]           The Solicitor submits that in the event there is a limitation period, then s. 4 of the Limitations Act is the only statute to fill that ostensible gap, as the Assessment Officer ultimately concluded based on her interpretation of Guillemette.

[93]           The Assessment Officer carefully reviewed the arguments made on this issue in the course of her September 11, 2019 reasons for decision and affirmed in the Assessment Certificate (with the benefit of written submissions from both parties). She reached the conclusion that, if there is a fixed limitation period, it is set out by s. 4 of the Limitations Act; namely two years from one month after the date of the last rendered account. As the requisition was filed approximately 17 months from the date of the last rendered account, she found that the requisition had been filed in a timely manner. The Solicitor was not required to prove special circumstances under s. 4(1) of the Solicitors Act in order to proceed with the assessment.

[94]           I do not agree with the Client’s submission that the Assessment Officer’s concurrence “with the [Client’s] representation that the Solicitors Act states that there is a twelve (12) month limitation on the right to file an Assessment” meant that she agreed with the further submission that the 12-month limitation contained in s. 4(1), together with that provision’s added requirement that special circumstances had to be proven to the satisfaction of a judge in order to extend that limitation period, therefore applied to an assessment conducted under s. 3(c). Indeed, it is clear from a review of the Assessment Officer’s decision rendered on September 11, 2019, in advance of issuing the Assessment Certificate, that she rejected the Client’s extension of that argument.

[95]           At para. 23f.iii. of her decision, in response to the Clients Objections (dated September 11, 2019), the Assessment Officer held:

23f.iii. After review of the parties’ arguments and submissions, the Assessment Officer concurred with Hosseini’s representation that the Solicitors Act states that there is a twelve (12) month limitation on the right to file an Assessment. However, the Assessment Officer also stated that precedent is clear that the Statute of Limitations Act trumps the twelve (12) month period and extends it to two (2) years for the Solicitor to bring an assessment. Based on the date that the Requisition of Assessment and Order for Assessment was filed, the Assessment Officer held that it is clear that the Application was filed well within the two (2) year limitation requirement.

[96]           At paras. 28 and 29 of the Assessment Decision, the Assessment Officer concluded:

28. In my review of the Objection submissions, the evidence shows that the final bill was issued to the Client on dated June 26, 2014. As noted above, Section 3(c) of the Solicitors Act permits the Solicitor to file an assessment a month after the bills are delivered. In this instance, one month after the final bill was delivered is approximately July 26, 2014, which means that under the Act the earliest the Solicitor was permitted to initiate an assessment was on July 26, 2014.

29. Further, consistent with the court’s holdings in Echo Energy Canada Inc. and Guillemette, the two (2) year limitation in the Limitations Act trumps the twelve (12) month limitation provision in the Solicitors Act. This means that the Solicitor in this instance would have had two (2) years from July 26, 2014, which is approximately July 26, 2016, to file a requisition and get an order for assessment from the Court. The facts in this case show that the Solicitor filed the Requisition and Order for Assessment on November 25, 2015, well within the limitations period. Therefore, an order from a Judge granting extension of the limitations period is not required based on the facts in this instance.

This analysis is probably wrong because a solicitor-initiated assessment isn’t a “claim” as defined by the Limitations Act, and so the Limitations Act doesn’t apply to an assessment proceeding. Is an assessment a cause of action? I’ve never seen any authority suggesting that it is.  If it’s not a cause of action, it’s not a “claim”.

This area of limitations law is so arcane that flawed analyses are understandable.  The solution is legislative reform. It’s inexcusable that there should be any ambiguity in the timelines for assessing lawyer accounts.