



COURT OF APPEAL FOR ONTARIO

CITATION: Couper v. Adair Barristers LLP,
    2020 ONCA 372

DATE: 20200611

DOCKET: C67453

Lauwers, Huscroft and Thorburn
    JJ.A.

BETWEEN

Mark
    Couper

Applicant (Appellant)

and

Adair Barristers LLP

Respondent (Respondent)

Mark Couper, acting in person

John J. Adair, for the respondent

Heard: In writing

On
    appeal from the order of Justice Markus Koehnen of the Superior Court of
    Justice, dated August 29, 2019, with reasons reported at 2019 ONSC 5016.

REASONS FOR DECISION

[1]

This is an appeal from the order of the motion judge
    dismissing the appellants motion opposing confirmation of the Assessment
    Officers report.

[2]

The appellant raises three issues on appeal. First, he
    says that the Assessment Officer did not have jurisdiction because the retainer
    was a contingency fee agreement; second, that the retainer did not comply with
    the requirements of the
Solicitors Act
, R.S.O. 1990, c. S.15
; and third, that
    the motion judge misapprehended and ignored evidence and that the assessment
    should not have occurred until his solicitors negligence action against the
    respondent was determined.

[3]

We dismiss the appeal for these reasons.

[4]

First, although authority to conduct the assessment of
    the contingency fee agreement was not formally delegated to the Assessment Officer
    as required under s. 28.1(11) of the
Solicitors
    Act
, the motion judge conducted his own analysis as though the matter had
    first come before him. He found that the retainer agreement included a contingency
    fee and that the contingent nature of the retainer agreement was fair and
    reasonable and should be enforced. In light of this finding, the motion judge
    noted that he would have delegated the question of quantum, and the detailed
    assessments of the accounts that entailed, to an assessment officer, who could
    carry it out far more effectively. Given that this had already occurred, we
    agree that there was no reason that the exercise had to be repeated.

[5]

As
Brown J.A.
    noted in
Evans Sweeny Bordin LLP v. Zawadzki
,
r. 54.09(5) of
    the
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194

permits the
    motion judge to confirm the [assessors] report in whole or in part or make
    such other order as is just: 2015 ONCA 756, at para. 24. In our view, the
    procedure adopted by the motion judge was fair and appropriate in all of the
    circumstances, and it was not necessary to remit assessment of the accounts for
    reconsideration by another assessment officer when assessment already occurred.

[6]

We note that the respondent argued that the appellant
    was estopped from contesting the jurisdiction of the Assessment Officer, based
    on the appellant having clearly and unequivocally stated that he was not
    disputing the retainer and undertaking not to raise the issue of the Assessment
    Officers jurisdiction as a ground of appeal. Given our conclusion in para. 5 it
    is not necessary to address this argument, and we are not to be taken as
    endorsing the motion judges analysis in this regard.

[7]

Second, it is too late in the day for the argument
    that the retainer did not comply with some of the requirements of s. 28.1 of
    the
Solicitors

Act
. The appellant did not challenge the validity of the retainer
    when he could have done so and cannot now raise this argument on appeal.

[8]

Third, we see no misapprehension of or failure to
    consider evidence. As for the appellants negligence action, the Assessment Officer
    considered and rejected the appellants submission concerning the competence of
    the representation provided by the respondent, finding that the appellants
    position smack[ed] of recently invented objections. The Assessment Officer
    found that the results achieved, and the degree of skill and competence
    demonstrated by the respondent justified the assessed legal costs. There is no
    basis to interfere with this finding on appeal. The assessment was not required
    to be delayed pending the outcome of the appellants negligence action.

[9]

The appeal is dismissed. The respondent is entitled to
    costs, which we fix in the amount of $5,000, inclusive of taxes and
    disbursements.

P. Lauwers J.A.

Grant Huscroft J.A.

J.A. Thorburn J.A.


