Legal Blog

Assessment

There are times when we review a case and cheer. The 2003 Ontario Court of Appeal decision in Tripkovik v. Glober is one such decision. The cheering resulted not because the Court decided the case in such a manner as to make life a little easier for lawyers; rather, because the lawyer in the case did everything right and the client, who was found by the motions judge to have stretched the truth, did everything wrong.

Time Passes

Glober acted for the client in a personal injury tort action and a subsequent no-fault claim. The client was intimately involved with these matters as they progressed. Glober settled the tort action in 1996 for $275,000. The client authorised the settlement. In addition to the settlement monies paid to the client, the insurance company paid Glober’s fees and disbursements of $94,788.07. Glober then settled the no-fault claim for $55,000 plus a $7,500 contribution towards his legal fees. He billed only the $7,500 for his work on the no-fault matter.

The client attempted to assess the tort bill more than 12 months after its delivery. The reasons did not clearly set out the dates regarding the no-fault claim and the assessment. In any case, the assessment officer adjourned the matter and advised the client to bring an application to the court to order an assessment. The client brought the application in 2001.

Section 11 of the Solicitors Act states that payment of a bill does not preclude a court from referring it for assessment, if the application is made within 12 months after payment and if there are special circumstances.

Section 2(3) of the Act states that a bill is sufficient if it contains a reasonable statement or description of the services rendered. If the bill is insufficient, further details may be ordered.

Application

The judge on the application reviewed a number of the affidavits and decided that the client was lying in many instances. He decided that the application was commenced more than 12 months after the delivery and payment of the tort and no-fault accounts. He dismissed the application regarding the no-fault account. However, he allowed the application regarding the tort account because he felt that the account was insufficiently detailed to comply with section 2(3) of the Act and, therefore, was no account at all. The tort account was terse. It simply referred to the accident and the settlement agreement. It claimed a lump sum for fees and set out individual disbursements. The judge refused to award the client her costs of the application because of his findings regarding her misstatements.

Glober appealed.

No Account

The judge on the application had followed existing law regarding his interpretation of section 11. Indeed, his interpretation was what we had always thought the law to be. The Court of Appeal disagreed, not with what the law seemed to be but with what the law ought to be.

The Court reviewed the various sections of the Act and decided that it does not matter whether a bill is sufficiently particularised or not; a bill is a bill. Once the bill is rendered, the time under section 11 starts to run. If the client does not feel that the bill has sufficient particulars, the client can always demand particulars; however, the time continues to run. Accordingly, on this basis alone, Glober’s appeal was successful.

The Court also commented on whether the bill was particular enough for section 2(3) and held that, given its decision on the main matter, it was not going to decide the issue. From our reading of the reasons for decision, the Court was sympathetic enough to Glober and the facts were so strong in his favour, that the Court would have, in the circumstances of this case, found that the bill had sufficient particularity.

Costs

The Court awarded Glober only his party and party costs of the original application and fixed his costs of the appeal at $12,500. It could have awarded solicitor-client costs because of the conduct of the client, but recognised that the existing law had been in favour of the client and it was therefore reasonable for her to have brought the application.

Cheers

We told you that we cheered the result. The Court agreed that Glober had done a fine job for his client and achieved good results. He had kept his client informed throughout and had obtained a written direction and acknowledgment for each of the settlements. The client knew what she was receiving before each settlement and knew that the defendants would pay Glober’s fees.

In her quest to renege, the client complained to the Law Society, alleging that Glober never sent her a bill at all. Glober provided a copy of the bill to the Law Society. Before the Law Society had even forwarded the bill to the client, she moved to have the bill, which she allegedly never received, assessed. In support of her application, she submitted affidavits in which, for example, she alleged that there was no retainer agreement; Glober produced it in his subsequent affidavit. The list of half-truths and untruths continued and were exposed. The client had wanted to attack Glober’s bill so that she could decrease his fees and increase her award with her share of Glober’s fees, which she was never supposed to have received. She lost. What a pity!

Particulars

It is obviously no longer as important as it was, at least for assessment purposes, to render a particularised bill because the time for assessment runs anyway. However, for purposes of client relations, we still suggest that a relatively particularised bill is a better bill and one that is more likely to be paid.