



COURT OF APPEAL FOR ONTARIO

CITATION: Lala v. Basman Smith LLP, 2017 ONCA 614

DATE: 20170724

DOCKET: C63084

Sharpe, Lauwers and Roberts JJ.A.

BETWEEN

Pauline Lala

Respondent

and

Basman Smith LLP

Appellant

Kevin W. Fisher, for the appellant

Adam Pantel, for the respondent

Heard: July 17, 2017

On appeal from the order of Justice W. M. Matheson of the
    Superior Court of Justice dated November 17, 2016.

REASONS FOR DECISION

[1]

The appellant law firm appeals an order of the motion judge setting
    aside a report and certificate of assessment. The motion judge ruled that the
    assessment officer had erred by failing to grant an adjournment when the
    respondent client did not attend the first day of a scheduled five-day hearing
    due to a communication error by court staff and that, as a result, the officer deprived
    the respondent of her right to a fair hearing.

[2]

The respondent had initiated the assessment in February 2014 to question
    the appellants account. At a preliminary appointment on June 9, 2014, a
    mediation was scheduled at the respondents request for August 15, 2014 with a
    hearing to be scheduled pending the outcome of the mediation. The respondent
    was ordered to provide the appellant with a list of her issues or concerns
    regarding the account at least 30 days prior to the mediation. She failed to do
    so. The respondent then cancelled the mediation one day prior to its scheduled
    date.

[3]

Over the following months, the assessment office and the appellant made
    several unsuccessful attempts to contact the respondent to schedule a hearing
    date. Eventually, in February 2015, the office scheduled a five-day assessment
    hearing. Due to a backlog in the assessment office, the hearing was scheduled to
    begin more than one year later, on March 14, 2016. During the interim, the appellant
    made offers to settle to which the respondent did not respond.

[4]

The respondent retained counsel (not counsel on this appeal) two weeks
    prior to the scheduled date for the assessment hearing. Although her counsel
    communicated with the appellant, he was never entered as counsel of record.

[5]

On the Wednesday before the Monday on which the assessment hearing was
    to commence, respondents counsel called the assessment office. In her reasons,
    the assessment officer indicated that she had checked with the staff and
    determined that respondents counsel was told that the assessment would likely
    not proceed on the scheduled date. Respondents counsel insisted in his
    submissions that he was told that the assessment would not proceed. He faxed a
    letter to that effect to the appellant but the appellant insists that it did
    not receive the letter.

[6]

On the first day of the hearing, neither the respondent nor her counsel
    attended. The assessment officer waited 30 minutes and then called and left
    voicemail messages for the respondent. She then proceeded with the hearing. The
    respondent later returned the assessment officers telephone calls and advised
    the assessment officer that she had been told the hearing was cancelled and
    that she would have her lawyer call. The assessment officer then spoke to
    respondents counsel by telephone at approximately 3:00 p.m. and, after a
    lengthy discussion regarding the miscommunication, the assessment officer
    adjourned the remainder of the first day of hearing and asked counsel to attend
    the following day.

[7]

Respondents counsel attended the next day but the respondent did not.
    Counsel did not provide an adequate explanation for the failure of the respondent
    to attend. The assessment officer indicated that some accommodation would be
    made to permit counsel to cross-examine the witnesses who had already testified
    on the first day of the assessment. Counsel refused to discuss any
    accommodation and insisted that the matter had to be adjourned, which the
    appellant opposed. The assessment officer refused to adjourn the assessment hearing
    and respondents counsel left the hearing refusing to participate any further.

[8]

On March 18, 2016, the assessment officer issued oral reasons approving
    the appellants accounts and the report and certificate of assessment. On March
    29, 2016, respondents counsel issued and served a notice of motion to oppose
    confirmation of the report and certificate of assessment, returnable September
    22, 2016. The appellant wrote to respondents counsel requesting that the motion
    be heard at an earlier date and that respondents counsel provide materials in
    support of the motion. No materials were provided and that motion was not
    heard.

[9]

The respondent then retained new counsel and, on October 28, 2016, her
    new counsel issued a new notice of motion to oppose confirmation of the report
    and certificate of assessment. Respondents new counsel later indicated that
    the previously scheduled motion had been adjourned on consent but the
    appellant insists that it was not advised of any adjournment and had proceeded
    as if the motion was deemed abandoned. The motion to oppose confirmation was
    finally heard on November 17, 2016 and forms the subject of this appeal.

[10]

The
    motion judge ruled that the assessment officer had erred in refusing an adjournment
    and that the respondent had thereby been denied procedural fairness.

[11]

We
    respectfully disagree with that ruling. It is clear from the transcript that
    the assessment officer was alert to the problems created by the
    miscommunications of the assessment office. She was prepared to give the
    respondent and her counsel the benefit of the doubt on that issue, without
    making a specific finding that the respondents version is what actually
    happened. However, the fact that the respondent may have had an excuse for not
    attending the first day of the hearing did not automatically give rise to the
    right to an adjournment or a re-hearing of a five day assessment that had been
    scheduled a year earlier. The unfortunate miscommunication clearly had to be
    taken into account, but we agree with the assessment officer that the situation
    was not irretrievably lost because of that miscommunication.

[12]

In
    our view, the assessment officer quite properly based her decision to refuse an
    adjournment on her overall 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
    respondent.

[13]

The
    assessment officer had to balance all of the circumstances to decide what to do
    in the interests of justice for both parties, given that the appellant was
    innocent of any miscommunication. The assessment officer was entitled to take
    into account the following additional facts in deciding whether to grant or
    refuse an adjournment: that the respondent had failed to ever provide a list of
    issues or concerns regarding the account to the appellant as she was ordered to
    do in June 2014; that the respondent had herself requested a mediation before a
    hearing date was set and then subsequently cancelled the mediation on one days
    notice; that she had only retained counsel two weeks prior to the scheduled hearing
    date and without him being entered as counsel of record; and that, in view of
    the backlog in the assessment office, there would be another lengthy delay in
    rescheduling the hearing: see
Igbinosun v. Law Society of Upper Canada
,
    2009 ONCA 484, 96 O.R. (3d) 138, at para. 37.

[14]

The
    assessment officer asked for submissions about what to do and suggested various
    options. However, respondent's counsel was not prepared to engage in any
    discussion or to entertain any possibility other than that the matter be
    adjourned and restarted from square one. He left refusing to participate any
    further in the process. In the assessment officers view, respondents counsel
    failed to articulate what, if any, prejudice would adversely impact his client if
    the hearing were to continue in some fashion.

[15]

This
    was not a case where the assessment officer was rigidly imposing one way of
    proceeding; on the contrary, she was clearly open to suggestions from the
    parties about what to do. In the circumstances of this case, it was reasonable
    for her not to accept the only option proposed by the respondent namely to adjourn
    and restart the hearing.

[16]

We
    note as well that this was an assessment hearing, not a trial, and that the
    proceedings are inquisitorial in nature. While adequate preparation is no doubt
    important, the fact that respondents counsel was only retained two weeks
    earlier and that he had apparently done no preparation before his telephone call
    to the assessment office just a few days before the scheduled date indicates
    that even had the matter proceeded, he would have done little preparation.

[17]

In
    our view, the assessment officers decision to refuse an adjournment was
    reasonable and the motion judge failed to give adequate deference to that
    decision.

[18]

Accordingly,
    we allow the appeal and set aside the motion judges order setting aside the report
    and certificate of assessment. The motion judge made no order as to costs due
    to the miscommunication from the assessment office and we do the same on
    appeal.

Robert J. Sharpe
    J.A.

P. Lauwers J.A.

L.B. Roberts
    J.A.


