{"id":1259,"date":"2022-01-04T22:17:23","date_gmt":"2022-01-05T02:17:23","guid":{"rendered":"http:\/\/limitations.ca\/?p=1259"},"modified":"2022-01-04T22:17:29","modified_gmt":"2022-01-05T02:17:29","slug":"ontario-the-limitation-of-a-solicitor-initiated-assessment","status":"publish","type":"post","link":"https:\/\/limitations.ca\/?p=1259","title":{"rendered":"Ontario: the limitation of a solicitor-initiated assessment"},"content":{"rendered":"

The Superior Court decision in Fasken Martineau DuMoulin LLP v. Behdad Hosseini et al.<\/em><\/a>\u00a0sets out the principles of the limitation of a solicitor-initiated assessment under s. 3(c) of the Solicitors Act<\/em><\/a> and concludes that the Limitation Act\u2019s basic limitation period applies:<\/p>\n

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[<\/a>83]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0Both 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\u00a0s. 3<\/a>(c) of the\u00a0Solicitors Act<\/a><\/i>, or the interplay between that section and either\u00a0s. 4(1)<\/a>\u00a0of the\u00a0Solicitors Act<\/a><\/i>\u00a0or s. 19 of the\u00a0Limitations Act<\/i>. Accordingly, this appears to be a case of first impression.<\/p>\n<\/blockquote>\n<\/div>\n

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[84]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0It is common ground that the requisition for the subject order for assessment was obtained under\u00a0s. 3<\/a>(c) of the\u00a0Solicitors Act<\/a><\/i>\u00a0which provides:<\/p>\n<\/div>\n

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,<\/p>\n

(b)\u00a0\u00a0\u00a0by the solicitor, for the assessment of a bill already delivered,\u00a0at any time<\/i>\u00a0after the expiration of one month from its delivery, if no order for its assessment has been previously made. [Emphasis added.]<\/p>\n

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[85]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0The Client\u2019s argument is that as there is no fixed time imposed by\u00a0s. 3<\/span>(c) on a solicitor\u2019s right to obtain a requisition, therefore the 12-month period reflected in\u00a0s. 4(1)<\/a>\u00a0of the\u00a0Solicitors Act<\/a><\/i>\u00a0must apply. The Client supports this position by noting the consumer protection nature of the\u00a0Solicitors Act<\/a><\/i>, and his bald assertion that it is \u201ccommon knowledge\u201d that the court \u201calways\u201d applies a 12-month limitation period in these types of solicitor-initiated assessments.<\/p>\n<\/div>\n

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[86]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0Section 4(1)<\/a>\u00a0of the\u00a0Solicitors Act<\/a><\/i>\u00a0states:<\/p>\n<\/div>\n

No such reference shall be directed upon an application\u00a0made by the party chargeable<\/i>\u00a0with such bill after a verdict or judgment has been obtained, or\u00a0after twelve months from<\/i>\u00a0the time such bill was delivered<\/i>, sent or left as aforesaid,\u00a0except under special circumstances to be proved to the satisfaction of the court or judge\u00a0<\/i>to whom the application for the reference is made. [Emphasis added.]<\/p>\n

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[87]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0The issue raises one of statutory interpretation. The essence of the Client\u2019s position is that the 12-month time period, together with the \u201cspecial circumstances\u201d requirement for late filing, from\u00a0s. 4(1)<\/a>\u00a0of the\u00a0Solicitors Act<\/a><\/i>\u00a0should effectively be read into s. 3(c) of that Act in order to prevent the \u201cabsurd\u201d result of there being no limitation period whatsoever imposed on solicitors seeking to have their accounts assessed.<\/p>\n<\/div>\n

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[88]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0The\u00a0Solicitors Act<\/a><\/i>\u00a0was enacted in 1990 and is a consumer protection statute:\u00a0Zeppieri &<\/i>Associates v. Gupta<\/i>,\u00a02016 ONSC 6491<\/a>. 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\u00a0s. 4(1)<\/span>\u00a0be read into\u00a0s. 3<\/span>(c) to fill this ostensible gap in the legislation. I disagree.<\/p>\n<\/div>\n

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[89]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0Section 3<\/span>(c) explicitly states that a solicitor may bring a requisition to have its accounts assessed \u201cat any time\u201d after delivery of its account provided:<\/p>\n<\/div>\n

(a)\u00a0\u00a0\u00a0the retainer is not disputed,<\/p>\n

(b)\u00a0\u00a0\u00a0there are no special circumstances,<\/p>\n

(c)\u00a0\u00a0\u00a0the solicitor has waited one month after delivery of its account to file the requisition, and<\/p>\n

(d)\u00a0\u00a0\u00a0no order for assessment of it has been previously made.<\/p>\n

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[90]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0In 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.<\/p>\n<\/div>\n

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[91]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0Second, s. 4(1) of the\u00a0Solicitors Act<\/a><\/i>\u00a0explicitly refers to applications for a reference brought \u201cby the party chargeable with such bill\u201d. The party chargeable is the client, not the solicitor. Hence this provision has no application to the solicitor-initiated assessment under\u00a0s. 3<\/span>, again on a plain reading of this section.<\/p>\n<\/div>\n

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[92]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0The Solicitor submits that in the event there is a limitation period, then s. 4 of the\u00a0Limitations Act<\/i>\u00a0is the only statute to fill that ostensible gap, as the Assessment Officer ultimately concluded based on her interpretation of\u00a0Guillemette<\/i>.<\/p>\n<\/div>\n

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[93]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0The 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\u00a0Limitations Act<\/i>; 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\u00a0s. 4(1)<\/a>\u00a0of the\u00a0Solicitors Act<\/a><\/i>\u00a0in order to proceed with the assessment.<\/p>\n<\/div>\n

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[94]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0I do not agree with the Client\u2019s submission that the Assessment Officer\u2019s concurrence \u201cwith the [Client\u2019s] representation that the\u00a0Solicitors Act<\/a><\/i>\u00a0states that there is a twelve (12) month limitation on the right to file an Assessment\u201d meant that she agreed with the further submission that the 12-month limitation contained in\u00a0s. 4(1)<\/span>, together with that provision\u2019s 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\u00a0s. 3<\/span>(c). Indeed, it is clear from a review of the Assessment Officer\u2019s decision rendered on September 11, 2019, in advance of issuing the Assessment Certificate, that she rejected the Client\u2019s extension of that argument.<\/p>\n<\/div>\n

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[95]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0At para. 23f.iii. of her decision, in response to the Clients Objections (dated September 11, 2019), the Assessment Officer held:<\/p>\n<\/div>\n

23f.iii. After review of the parties\u2019 arguments and submissions, the Assessment Officer concurred with Hosseini\u2019s representation that the\u00a0Solicitors Act<\/a><\/i>\u00a0states 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.<\/p>\n

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[96]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0At paras. 28 and 29 of the Assessment Decision, the Assessment Officer concluded:<\/p>\n<\/div>\n

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,\u00a0Section 3<\/a>(c) of the\u00a0Solicitors Act<\/a><\/i>\u00a0permits 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.<\/p>\n

29. Further, consistent with the court\u2019s holdings in\u00a0Echo Energy Canada Inc.<\/i>\u00a0and\u00a0Guillemette<\/i>, the two (2) year limitation in the\u00a0Limitations Act<\/i>\u00a0trumps the twelve (12) month limitation provision in the\u00a0Solicitors Act<\/a><\/i>. 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.<\/p>\n<\/blockquote>\n

This analysis is probably wrong because a solicitor-initiated assessment isn\u2019t a \u201cclaim\u201d as defined by the Limitations Act, and so the Limitations Act doesn\u2019t apply to an assessment proceeding. Is an assessment a cause of action? I\u2019ve never seen any authority suggesting that it is.\u00a0 If it’s not a cause of action, it’s not a “claim”.<\/p>\n

This area of limitations law is so arcane that flawed analyses are understandable.\u00a0 The solution is\u00a0legislative reform. It\u2019s inexcusable that there should be any ambiguity in the timelines for assessing lawyer accounts.<\/p>\n

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

The Superior Court decision in Fasken Martineau DuMoulin LLP v. Behdad Hosseini et al.\u00a0sets 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\u2019s basic limitation period applies:   [83]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0Both parties advised that they could not find any case … Continue reading Ontario: the limitation of a solicitor-initiated assessment<\/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":[648,460,647],"class_list":["post-1259","post","type-post","status-publish","format-standard","hentry","category-ontario","tag-legislative-reform","tag-ontario-solicitors-act-s-3","tag-ontario-solicitors-act-s-3c"],"_links":{"self":[{"href":"https:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/1259","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=1259"}],"version-history":[{"count":2,"href":"https:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/1259\/revisions"}],"predecessor-version":[{"id":1261,"href":"https:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/1259\/revisions\/1261"}],"wp:attachment":[{"href":"https:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=1259"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=1259"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=1259"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}