Focus On

BARRISTERS AND SOLICITORS - Compensation - Taxation or assessment of accounts

Thursday, August 03, 2017 @ 8:38 AM  


Lexis Advance® Quicklaw®
Appeal by a law firm, Basman Smith LLP, from an order setting aside a report and certificate of assessment. In 2014, the respondent client, Lala, initiated an assessment of the law firm's account. The client failed to provide materials in advance of pre-hearing mediation, and canceled the mediation the day prior to its scheduled date. Several unsuccessful attempts by the assessment office and the law firm were made to contact the client to schedule the assessment hearing. A hearing was set for March 2016. The client did not respond to the law firm's offers to settle. The client retained counsel prior to the hearing date. On the first day of the hearing, neither the client nor counsel appeared. After unsuccessful attempts to contact the client or counsel, the assessment officer proceeded with the hearing. Upon hearing from counsel toward the end of the first day of the hearing, the officer adjourned the remainder of the first day. On the second day, the officer refused to adjourn the hearing and the client's counsel refused any further participation. The hearing completed and the officer issued a report and certificate of assessment approving the law firm's accounts. On a motion opposing confirmation, the motion judge ruled the assessment officer erred in failing to grant an adjournment. The client's non-attendance arose from a communication error by court staff. The officer's conduct deprived the client of her right to a fair hearing. The officer's report and certificate of assessment were set aside. The law firm appealed.

HELD: Appeal allowed. The assessment officer was alert to the communication error and was entitled to approach the five-day hearing as not having been irretrievably lost. The officer properly based the refusal of an adjournment on consideration of the conduct of both parties, of the inconvenience and cost of a further delay in the assessment, and of the steps that could have been taken to relieve any procedural unfairness to the client. The client's counsel refused to entertain any other possibility other than an adjournment. In the absence of articulated prejudice to the client, it was reasonable for the officer to reject the sole option of an adjournment proposed by client's counsel. The motion judge failed to give adequate deference to the assessment officer's decision. The motion judge's decision was set aside.

Lala v. Basman Smith LLP, [2017] O.J. No. 3845, Ontario Court of Appeal, R.J. Sharpe, P.D. Lauwers and L.B. Roberts JJ.A., July 24, 2017. TLD-July312017008