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BARRISTERS AND SOLICITORS - Taxation or assessment of accounts

Wednesday, May 08, 2019 @ 7:52 AM  

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Determination of requests from both parties for additional production and particulars. This was an assessment of the account of the solicitor, Viele, brought by the client, Gargan Investments Ltd. The solicitor performed work for the client for several years prior to 2009. The primary work performed was an application under the oppression remedy provisions of the Ontario Business Corporations Act. In early 2009, the solicitor presented her bill to the client. The bill was for approximately $300,000. The client refused to pay the bill and sought to assess the solicitor’s account. The client also sought the repayment of approximately $95,000 in costs that had previously been paid. The case management judge was now addressing requests for particulars and production. There were no pleadings in this case. The particulars ordered were designed to replace pleadings. The client took the position that the solicitor should be estopped from obtaining any additional particulars at this point as the solicitor had delayed for nearly 10 years in making the requests for documentary production. The client limited its willingness to produce certain documents to those that were in its possession. Furthermore, the client asserted a claim of privilege over certain documents and asserted that the solicitor had the burden of proving her account.

HELD: Both parties were to provide production and particulars. Both sides had a positive obligation to preserve and produce relevant documents. Given the course and slow pace of the litigation, it was not unreasonable for the solicitor to have not raised the production issues until the full scope of the questions to be litigated was defined. The client’s estoppel argument was dismissed. The client was obligated to make efforts to obtain copies of any documents that were in its control or power, as well as producing those in its possession. To the extent that the client claimed privilege, redacted documents were to be provided. It was correct that the solicitor had the burden of proving her account. However, in this case there was no discovery process and the obligation to provide particulars and to respond to requests for particulars was broader. The client was obligated to provide the facts in their knowledge even if the solicitor bore the burden on the case as a whole. To order otherwise would require the solicitor to proceed to trial without knowing what the client’s evidence would be. Both parties were entitled to know the case that they had to meet, and the particulars sought were to be sufficiently detailed to provide that information.

Viele v. Gargan Investments Ltd., [2019] O.J. No. 1709, Ontario Superior Court of Justice, W.M. LeMay J., April 3, 2019. Digest No. TLD-May62019007