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Posted on August 1, 2006 | Posted in Lawyers' Issues

Unlike any other professionals, lawyers have the ability to resolve fees disputes with their clients without the necessity of bringing the matter to the courts. They can have their accounts assessed. However, an assessment hearing is as equally adversarial as a court hearing, just in a different forum. Further, since it is adversarial, all of the disadvantages of an adversarial process are present. Somerleigh v. Polhill [2006] O.J. No. 1587 (C.A.) gives an example of the consequences.


Lawyer is not paid and, in 1991, lawyer assesses his account for $6,900.00. Lawyer is paid a portion of the account when he has client’s sawmill and backhoe seized and sold in payment of the assessment order. In 2004, client moves to set aside the assessment order on grounds that he was never properly served with notice of the assessment hearing. Client loses the motion and appeals to the Court of Appeal.

The Court of Appeal agreed that client might not have been properly served. However, it held that lack of proper service rendered the proceedings voidable, not void. The Court dismissed the appeal because client had notice of the assessment order in 1994 and had done nothing of a juridical nature for 10 years.


Aside from an esoteric point about service and the dichotomy between void and voidable, why do we bring this case to your attention? Because of what client did between 1994 and 2004. The court said it concisely:

“The record shows that, over the years, he has complained to many people and organisations about Mr. Somerleigh and the assessment, including the federal Minister of Justice, the Regional Senior Justice, the Law Society of Upper Canada and the Ontario Judicial Council. He has complained also to lawyers, family members and court personnel about the matter. It strains credulity to the breaking point to hear the appellant allege that he was delayed in using the court system to set aside the Assessment Order because he did not know what to do “until now”.”

Be assured that the lawyer spent as much time fending off client’s complaints than he spent on the file for client in the first place. He will continue to spend time. The debt is still not fully paid and we can reasonably assume that client is not keen on paying lawyer. We might even postulate that client is intent on making life as miserable as possible for lawyer and is willing to spare no expense to do so. New counsel represented client in the Court of Appeal. We hope that counsel ensured that client paid him up front.


Know your client. What will the client do when pushed into the adversarial system? Will it cost you more than it could possibly be worth to you? If possible, make a deal, get out, and spend your time helping clients who will appreciate you.


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